House of Evil: The Indiana Torture Slaying (St. Martin's True Crime Library) (21 page)

“You are not precluded,” Rabb replied. “Make it cross-examination, please.” At this juncture, New asked to be heard with the jury out of the courtroom. The jury was ushered out, and New stated, “We think this has reached the point of abuse. Mr. Erbecker is trying to incite and try the patience of everybody in this courtroom. He has the responsibility to behave himself in the courtroom in a first degree murder trial, and we are going to ask that he be censured.”

Forrest Bowman, defense attorney for Coy Hubbard and Johnny Baniszewski, had something to say. Although he did not wholly agree with Mr. New, he said, he did say that he was getting hungry and the jury probably was too, and the jury could not therefore hear evidence with any degree of clarity. It was 1:36 p.m. Rabb reluctantly granted a recess for lunch. He did not rule on New’s motion to censure Erbecker.

After lunch, Erbecker completed his cross-examination in 13 minutes. A defense-employed
psychiatrist also had examined Gertrude, but Erbecker did not even bother to put him on the stand. There was no direct testimony that Gertrude was insane; yet the next day Erbecker threw all his cards into the insanity plea.

After an unsuccessful attempt by Erbecker to introduce the transcript of the habeas corpus hearing, the attorneys settled down to discussing instructions to the jury. Erbecker tendered 193 of his own suggested instructions, and Rice and Bowman tendered nearly 50 apiece. New tendered none, and Nedeff tendered none. Some of Erbecker’s would have instructed the jury that the state “has failed to discharge the burden of proof in this case.”

Rabb already had 62 of the court’s own instructions to read to the jury; and he said he would decide overnight which, if any, of the defendants’ instructions to accept. Attorneys combed through the proposed instructions for two hours late that Thursday afternoon. They bantered and joked with each other, but others in the courtroom were tense. Mrs. Baniszewski sat silent. Mr. and Mrs. Ralph Hubbard, Coy’s parents, waited in the gallery after other spectators had left, to get a word with their son when court adjourned at 5:30 p.m. Ricky Hobbs lit a cigarette before being led away by a deputy sheriff.

The next morning, Judge Rabb announced that he had accepted 11 instructions tendered by Erbecker, three by Bowman, and two by Rice.

The instructions included Indiana’s legal definition
of murder: “Whosoever purposely and with premeditated malice kills any human being is guilty of murder….”

They included also one applicable to Johnny Baniszewski, who was 12 years old when Sylvia died, and to Richard Hobbs, who was 14 at the time: “An infant between the ages of 7 and 14 is presumed to be incapable of committing crimes, but the presumption may be rebutted by proof that the infant possessed sufficient discretion to be aware of the nature of the act.”

And this instruction on sanity: “When there is mental capacity sufficient to fully comprehend the nature and consequences of an act, and unimpaired will power strong enough to master an impulse to commit a crime, you may find there is criminal responsibility.”

DEPUTY PROSECUTOR
Marjorie Wessner, who had been silent through most of the trial, rose to deliver the state’s summation. She described the testimony as “horrible, stomach-wrenching,” the accounts of “a beastly, beastly crime.”

She again showed the jury the smiling portrait of Sylvia Likens. “She seems to be looking forward to the future,” Miss Wessner said, “to future joys and happy experiences….

“Sylvia, being the obedient girl she was, tried to please Mrs. Baniszewski and said nothing of the mistreatment….

“The series of brutally outrageous acts on these girls equals only the horrible torture of prisoners in German war camps.”

Richard Hobbs’ head drooped toward his lap as it had through most of the trial. The other defendants sat erect and expressionless. Paula attempted to whisper something to her attorney but was shushed.

Miss Wessner, stumbling occasionally over the
name Baniszewski, continued. She picked up the paddle and the belt, saying, “My head jarred when I heard the testimony that Sylvia was hit in the head with this board. My flesh could feel the sting of the metal on this belt….

“Mrs. Baniszewski knew on Sunday she was going to hold these notes until she and the rest of the defendants had completed the murder of Sylvia.”

Miss Wessner’s voice broke as she related, “Sylvia said she felt like her teeth were coming out as she ate that rotten pear….

“There was practically no fat on that girl’s body. She hadn’t eaten for a week!…We’ll never know the pain and the suffering that Sylvia endured. The best evidence of that was the picture of her lips—lips that were bitten in shreds….

“I wish she were here today, with eyes as in this picture, full of hope and anticipation.”

William Erbecker made the first defense closing argument and shocked almost everyone from the start with his incredible speech. “Participating in this case was not of my choice,” he said. “I was asked to…. This crime was horrible, horrendous, vicious….I’ve been in a lot of murder trials, and this is the most vicious I ever saw in my life! It threatens the roots of civilization….

“But we also see here an insane woman deprived of her constitutional rights…. And if I make some mistakes, please don’t hold it against that poor, unfortunate woman.” He said her going before the grand jury was “like sticking your head in a lion’s
den. As for Leroy New, I don’t suppose he asked any illegal questions in there. He’s a high-grade gentleman. He probably just went as far as the law would allow.”

Erbecker paced up and down before the jury and began to raise his voice. His client, Gertrude Baniszewski, raised her hand to her mouth.

“In my opinion,” the woman’s own lawyer shouted, “she ought to go to the electric chair!”

When the shock abated, he added: “—if you think this is the action of a sane, normal person.”

He picked up an autopsy photograph. “How can anybody look at that picture there,” he said, “and say that she is sane?

“There is no motive in this case. That poor little girl, I feel sorry for her parents. That little girl had a right to live, to grow up, to get married and have children. And for anybody to tell you that that lady doesn’t have a diseased mind….

“Now the State of Indiana will ask for its revenge here. What will the electric chair do to this woman?” The lawyer launched into a gruesome description of an electrocution he had witnessed as a young man.

“I condemn her for being a murderess, that’s what I do; but I say she’s not responsible because she’s not all here!”

Erbecker sometimes whispered, sometimes shouted; he wheedled and cajoled. “Look at this exhibit!” he commanded softly and incredulously, holding a photograph. “Look at the lips on that girl!”

The lawyer picked up the torture tools and laid
them on the table. “How sadistic can a person get?” he asked. “The woman is stark mad!” Paula began crying.

“I’ve done my little job,” Erbecker concluded, saying that the psychiatrists had raised a reasonable doubt as to Gertrude’s sanity. “If this woman is sane,” he said, “put her in that chair. She committed acts of degradation that you wouldn’t commit on a dog. Send her to the chair!”

But he modified the challenge: “She has to be crazy or she wouldn’t have permitted that.”

It was time for lunch.

Scholarly George Rice delivered the first argument of the afternoon, for Paula Baniszewski, promising to be “clear, logical and honest.”

He decried the state’s access to grand jury testimony and the fact that the defendants were being tried jointly. “The defendants are grouped together like a single target for the prosecutor to aim at. Though we sit at the same table, we are adverse to each other.”

Rice listed what he considered all the evidence against Paula that could be gleaned from the testimony, and he said it did not add up to murder. But he did not mention the black eyes, the hitting of Sylvia’s teeth with the cast, and the testimony that Paula had made a game of hitting Sylvia with whatever object was at hand. He minimized Paula’s choking of Sylvia, “who, upon being released, walked away!”

He noted Paula’s amazement when she was told that Sylvia had died. “Does a murderer express surprise?” He noted the 100-odd cigarette burns in
Sylvia’s flesh. “Keep in mind that Paula Baniszewski was a non-smoker.”

Rice said he was at a loss to explain Sylvia’s failure to escape; but he said, “I do have something to say on the issue of motivation.

“We have dealt here with a family that has known chill penury for a long time. There was never sufficient money in the cookie jar. Consciously or unconsciously, there built up a feeling of anger against the world. There was no channel for its release until Sylvia Likens came to the household and provided a focal point.”

Rice ended with a plea for the jury to consider the awful imprint a guilty verdict would have on Paula’s “psyche…. She has gone through the indignity of being a young girl tried for murder in open court.”

Forrest Bowman’s closing argument, for Coy Hubbard and Johnny Baniszewski, was barely audible. He sat on the corner of the defense table and practically whispered to the jury, in a conversational tone.

“I would like about an hour,” he said, “to tell you why a 15-year-old boy and a 13-year-old boy should not be put to death.”

He wondered whether the murder had been the result of unconscious hostility and whether the indictment of children had been the result of more unconscious hostility on the part of the public.

He took a swing at Leroy New. “I don’t like cross-examining children. But… the purpose is to ferret out the truth. It is not to ridicule, embarrass, abuse….

“Shirley Baniszewski, 10 years old, was somehow prompted or persuaded to get on the witness stand. She may not realize the impact of that today. But someday, when she’s 15 or 16, she’s going to realize….

“Johnny Baniszewski was too loyal to his family to get on the witness stand.”

The young lawyer tried another side track. “Just how vigorous have our public officials been in preventing this kind of tragedy? Shocking as it is, it’s not too surprising. It’s just an accident that Sylvia Likens isn’t on trial today—and Johnny Baniszewski dead. She just happened to be the target for all the frustration and hate.”

Bowman criticized police tactics in questioning the youngsters. “Was the atmosphere like last Friday afternoon when Mr. New was cross-examining Richard Hobbs?…

“Johnny and Coy have some things in common,” Bowman complained. “They can’t make a contract or a will; they can’t drive a car. They can’t even buy a car without their parents’ signature; they can’t get married or purchase real estate, and, except for a major crime, they can’t be tried in Criminal Court.”

Even if convicted of the lesser, included offense of manslaughter, Johnny would have to serve two years at the State Reformatory, and Bowman predicted the harmful effect of that. “You might as well send him up there for life….

“Now,” Bowman asked, “who killed Sylvia Likens? We still don’t know, for sure….

“It appears to me that sometime Sunday, or Monday, somebody went on a rampage. I don’t know who, but who had the capacity for violent behavior?” he asked, glancing toward Gertrude.

“Johnny, like Coy, is probably guilty of assault and battery,” Bowman conceded, “but he’s not charged with that, is he?”

He deplored the traumatic effect of the trial and possible conviction on each boy. “His life will never be the same.”

James Nedeff, attorney for Richard Hobbs, began with regret. “Sylvia Likens,” he said, “God bless her tortured and tormented soul. She did have a right to live. I in my own heart can’t remember a girl so much sinned against and abused.”

But he said blame for some abuse must be laid on her own family. He cited her parents and Jenny, “a sister who could limp three and a half miles to a park but couldn’t walk two or three steps out into New York Street to beg for help.”

Nedeff praised his client, Ricky Hobbs, for testifying. “There may be little variations and inconsistencies in his testimony, but he told the truth.

“I advised him, ‘You’d be like a sparrow against an 88 howitzer cannon.’ He said, ‘He can’t hurt me if I tell the truth.’ So he was plunked from the witness stand by one of the greatest cross-examiners in this state, for the most savage and relentless cross-examination.”

Nedeff stressed Ricky’s short-term participation in the torture, saying, “If he hadn’t put the words on
her stomach, he would have been a state’s witness, probably, rather than Stephanie.”

The lawyer suggested that Gertrude drew Ricky into the mess. “Is that what attracted Ricky there? A woman who had two paternity suits filed against a man of 19 or 20, who danced to the music of a record player, a Lucrezia Borgia, a Lady Macbeth? That is for you to decide.

“Ricky Hobbs is guilty of a lot of things, but not guilty of murder. He is guilty of being a young man, a lad, of being under the influence of an older person, of being a follower and not a leader. I think he listened to the siren’s song.

“Ricky Hobbs has paid and will continue to pay. Don’t do Leroy New’s dirty work for him.”

Leroy New had one more job to do—to get the jury’s minds off the defense lawyers’ sentiments and back onto the issues at trial, in his closing argument in rebuttal.

“The prosecutors’ job,” he began, “is to present the evidence to the best of our ability.” He said he would try to speak “through the mangled and shredded lips of Sylvia Likens. I see her wherever I look.

“There’s no self-defense here, no provocation, no justification.” Already New’s voice, with its great range of inflection, sounded indignant. His long, lean body swayed to and from the jury with each inflection, hypnotically, like a palm tree in the breeze.

“It was planned, calculated, systematic, cold-blooded murder,” he declared.

Answering Forrest Bowman’s criticism of his putting children on the witness stand, he said, “Now, let’s look at some of the responsibilities here. Each one of these five defendants had first and foremost the responsibility to leave Sylvia Likens alone. We had the responsibility to bring all the evidence we could find that could explain this crime.” Answering the charge that he was brutal in cross-examination, he admitted, “We did bring up the heavy artillery. Now
your
duty,” he said to the jury, “is the most solemn and most sickening….