House of Evil: The Indiana Torture Slaying (St. Martin's True Crime Library) (11 page)

SALTY OLD
Saul Rabb, judge of Criminal Court, Division 2, had been on the bench since the court was created in 1947, except for one four-year term he lost out on in the Democratic landslide of 1958. Lawyers both respected him for his knowledge of the law and despised him for his sarcasm, his particular brand being known in courthouse circles as “the needle.”

Rabb was loved by newspaper reporters for his witticisms and his eagerness to help them with a story, and feared by his staff, a bevy of pretty, young girls, one of whom once asked him for permission to go to the restroom.

A tiny, balding man wearing rimless spectacles, Rabb had a reputation for being stern but fair. Characterized as “Judge Saul Stab” at a lawyers’ gridiron dinner, Rabb dealt harshly with second offenders and other criminals who showed no promise. But he once reduced an 18-year-old thief’s sentence when the lad kissed his mother good-bye in
the courtroom. “That shows he’s a good boy,” the judge quipped.

It was into Rabb’s court that the Likens murder indictment was returned. The quotation that hung on the wall of the courtroom—“Justice delayed is justice denied”—was taken seriously in Rabb’s court. The only way to stall a trial over a period of years in there was to take a change of judge, and hundreds of new cases were filed in the court every year.

Rabb sensed the special need of a quick trial in the Likens case. In any case, a common defense tactic is to request continuance after continuance; not only does this discourage witnesses from coming to court, but it also tends to fog their memories as the events of the crime are pushed further and further into the past.

Rabb’s steadfast denial of bond for the six defendants (within the judge’s discretion in a murder case) discouraged their thoughts of delaying the case, and his speedy but studied rulings on a flood of dilatory motions insured that the trial would proceed nearly on schedule.

Cynics said the judge wanted to try the case early to gain maximum publicity from it in time for the primary election in May.

But responsible lawyers observed that no judge would look forward to a case like this one. There would be at least five lawyers to control, and the case would probably run at least that many weeks. It would be tiring, and it would be difficult keeping the
jurors admonished as to what they could and could not consider as evidence, with six defendants on trial.

Much of the testimony would be admissible against one defendant, but not against others. Moreover, among the lawyers would be two of the state’s most flamboyant advocates, William C. Erbecker and Forrest B. Bowman Jr.

Sensing the conflicts of interest that would arise among the six defendants, Baniszewski family lawyer John R. Hammond had begun to deal his clients out to other lawyers in December. Hammond, young and handsome, had an office in the suburbs and a varied practice in the city. He was sort of a country lawyer in a big town. He had never handled a murder case before, but he knew how to handle this one. The one client he kept for himself was 15-year-old Stephanie, the most likely to be found innocent.

Gertrude’s case was given to Erbecker, a shotgun tactician who had been accused of operating just a shade above the law himself; he once had been indicted on a charge of subornation of perjury, a charge that was later dismissed for lack of evidence.

Paula’s case was given to George P. Rice Jr., a dignified divorced man. Author of several books, Rice held a Ph.D. in psychology and was a full-time professor of speech at Indianapolis’ Butler University before entering law school at the age of 38.

Johnny’s case and, later, the case of Coy Hubbard were assumed by Bowman, youthful, squat and impish-looking behind his thick-rimmed spectacles.
Bowman was the junior partner and protégé of attorney Ferdinand Samper, who was running against Rabb for the Republican nomination for Rabb’s judgeship.

Bowman showed signs of the thoroughness, the courtroom flair and the occasional oddball tactics that had made Samper, a veteran of fifty murder trials, one of the most conspicuous defense lawyers in the state.

The fifth defense lawyer in the case was James G. Nedeff, for Richard Hobbs. He took Hobbs’ case as one of three salaried public defenders in Rabb’s court; and as such, he was the only defense lawyer getting paid for his work in the case. None of the defendants had any funds with which to pay an attorney, and the other lawyers had volunteered their services.

These five lawyers kept Judge Rabb busy for several months by filing voluminous preliminary pleadings. Erbecker managed to delay Gertrude’s arraignment on the indictment for nearly two months.

The first pleading filed in the case after the indictment was returned was a motion by Erbecker for Mrs. Baniszewski’s release on a writ of habeas corpus. In the lengthy pleading, Erbecker contended that his client’s “constitutional rights were violated in that she was induced to testify before the grand jury, and the evidence related by her was used to obtain the indictment….”

The pleading had little apparent merit, but it satisfied Erbecker’s motives in two ways: (1) It caused a
hearing in which the state was forced to produce some of its evidence before the trial, and (2) it was one step in establishing a possible trial court error on which he could base an appeal later.

It was nothing for Erbecker to turn out a fifty-page pleading overnight, complete with constitutional arguments and Supreme Court citations.

One of his specialties was taking Supreme Court appeals for hated convicted felons; at that very time he was keeping a convicted killer of a Marion County deputy sheriff from burning in the electric chair by filing motions for new trial, petitions for permission to file motions for new trial, belated motions for new trial, motions for writ of certiorari by the United States Supreme Court, etc., etc., etc. In many cases involving a confession, he would charge that the defendant’s civil rights were violated by police.

Heavyset, nearly bald, and mustached, Erbecker at the time was a candidate for the Democratic nomination for prosecutor. It was his role, he explained, to do anything within the law to help his client.

Soon after Erbecker’s habeas corpus petition came the first of a number of bizarre pleadings from Forrest Bowman, attorney for Johnny Baniszewski and Coy Hubbard. It was a motion to quash the indictment against Johnny, who, at 12 years of age, could not be presumed capable of harboring any criminal intent, Bowman argued. The law in Indiana presumed children under 15 to be incapable of criminal intent. What Bowman did not mention, however,
was that the law also stated that the presumption of lack of intent can be rebutted by evidence. Only children under seven years of age were protected entirely from prosecution.

Bowman cited also some poor grammar in the indictment in his motion to quash. The indictment charged the defendants with killing Sylvia Likens “by…strike, beat and kick” her, instead of “by…striking, beating and kicking” her. “It is obvious,” Bowman argued in his motion, “that the above allegations, insofar as English grammar is commonly understood, say nothing.” But Judge Rabb ruled that the poor grammar was a technical fault only and that the meaning was clear.

As for the charge against Johnny, Bowman argued, “It is an outrageous violation of fundamental fairness and due process of law to prosecute a 12-year-old infant for a felony punishable by death or life imprisonment…. The brooding spirit of the common law as well as our constitutional principles of fairness will permit no such legal outrage in the latter half of the 20th Century.”

But whether outrageous or not, Judge Rabb ruled that the law does allow such prosecution. Attorneys for the state argued that the crime committed by the 12-year-old infant was far more outrageous than the fact that he was being prosecuted.

January 12, 1966, the date set for arraignments and habeas corpus hearing, soon came. For newsmen and other spectators, it was a preview of the courtroom drama to come.

Under the rule of law applying to habeas corpus proceedings, the state had no right to hold defendants in jail without sufficient evidence to produce a strong presumption of guilt. William Erbecker knew that the state had sufficient evidence against his client, Gertrude Baniszewski, but he wanted to find out what some of it was.

In the courtroom vernacular, Erbecker was “on a fishing expedition.” The state’s usual tactic in such cases is to present as little evidence as possible but still enough for presumption of guilt. The procedure, however, is for defense lawyers to call in state’s witnesses—the ones they know of or can force the prosecution to name—and conduct the questioning. One way the state tries to limit evidence is to produce only a partial list of witnesses.

For whatever reasons, the only eyewitnesses called were Randy Lepper and Judy Duke. Neither possessed a wealth of information, but both produced enough testimony to keep the defendants in jail. Other witnesses at the hearing were the public health nurse, Barbara Sanders; the deputy coroner, Dr. Kebel; the pathologist, Dr. Ellis, and Sgt. Kaiser, armed with signed confessions.

Stephanie Baniszewski also was involved in the habeas corpus hearing, and it was not just a “fishing expedition” for her attorney, John Hammond. He was convinced that the state lacked evidence against Stephanie, and he was there to prove it.

The nurse was first to the witness stand; she described Mrs. Baniszewski’s attitude as “resentful
and defiant” at the time of her October 15 visit to the house. But the children she saw looked healthy, Mrs. Sanders said.

Next to the stand was Randy Lepper, one of the most interesting witnesses in the case, from the standpoint of courtroom behavior. His impish eyes rolled toward the ceiling as incriminating questions were tossed his way, and he smiled mischievously as he admitted his participation in the crime. Randy testified to seeing Gertrude beat Sylvia; and he said he once saw Sylvia cry, “but no tears came out of her eyes.”

“I only seen Stephanie slap her once, real hard,” he said, “for undressing before me and Johnny.” He may have been referring to the incident of the Pepsi bottle. He said Stephanie made straight A’s in school and cried when she was sick and had to stay home.

Equally interesting was Judy Duke. Tall and pretty at 12 years of age, with long, blond hair, she gave strangely tardy responses and sometimes no response at all to attorneys’ questions.

“Now, on how many different occasions,” Erbecker asked her, “did you see Mrs. Baniszewski strike Sylvia Likens?”

The girl said nothing.

“Occasions,” Judge Rabb explained to the young witness, “means times. How many
times
did the woman
hit
her?

“These are children, Mr. Erbecker,” the judge said. “Talk to them in language they understand.”

Judy knew what “times” meant. “Oh, about 12 times,” she said.

“Now, isn’t it a fact,” Erbecker questioned, “you never saw Mrs. Baniszewski, at any time, do anything that would injure the victim in any material way?”

Again, no response.

And again, a suggestion from the judge. “‘Isn’t it a fact,’” he said, “is
lawyers’
talk. Talk to them in
children’s
talk.

“Did you ever see Mrs. Baniszewski
hurt
Sylvia?” the judge rephrased the question for Judy.

John Hammond elicited testimony to show Stephanie’s lack of participation. “They sent her to the store or something,” Judy told him. “She never knew anything about it.”

“A real nice girl,” Hammond suggested.

Dr. Kebel testified that Sylvia may have been in too advanced shock to offer much resistance or many tears in her final hours. He testified that the blow on the head was probably “the major contributing cause” of Sylvia’s death but that it might just have been “the straw that broke the camel’s back.”

He noted that Sylvia was “well developed sexually.”

Dr. Ellis testified that Sylvia’s fingernails’ being broken backward indicated a desperate scratching motion.

Sgt. Kaiser read statements implicating all defendants.

Erbecker described Mrs. Baniszewski as a nervous wreck and said she should be free on bond to be able to help him gather evidence.

But Rabb denied both Mrs. Baniszewski’s and Stephanie’s petitions. He said the evidence reminded him of the D. C. Stephenson case. Stephenson, head of the Ku Klux Klan in its heyday in Indiana in the 1920’s, was convicted of murdering a young Indianapolis woman even though he administered no fatal injury to her. There was evidence that he kidnapped her and forced her to submit to sadism and sexual perversion. In despair at not being able to escape, the young woman took poison and died from it. Stephenson was convicted on the theory that his actions induced her to poison herself and the theory that he neglected to seek medical aid for her although he knew her condition.

Stephanie, heartbroken, was joined by her father as she left the courtroom. “But, Daddy,” she sobbed, “I just can’t stand to have people think I’d do something like this.”

“Nobody ever accused her of doing anything to this girl,” her attorney had said during the grand jury investigation. “She’s an exceptional girl.”

The next day, January 13, 1966, Judge Rabb did order the transfer of Stephanie and Johnny to the Juvenile Center. The same day, Richard Hobbs and Stephanie became the first to be arraigned in the case. Both pleaded not guilty. Arraignments of the others were postponed.

Mrs. Baniszewski had assumed a brief bit of glamor during the hearing. She came to court wearing a luxuriant bouffant hairdo. But her hair was back to its straggly self at her next appearance.

A reporter, Rick Johnson, of the
Indianapolis Star
, had learned that the woman was getting hairdos in return for knitting she did for jail matrons. This violated jail rules against “trafficking with inmates,” and Johnson’s little item in the
Star
put an end to it.

The next avenue of defense for the attorneys was the insanity route.

George Rice was the first to file a “suggestion of insanity,” which he did for his client, Paula Baniszewski, on January 11, 1966. It stated “that petitioner [Rice] is a doctor of philosophy, said degree awarded him by Cornell University in psychology. That after several hours of conference with the defendant herein, petitioner believes and has reason to believe that the defendant does not understand the nature of the offense with which she is charged and does not have the ability to assist actively in the preparation of her defense.”