Sylvia - IV: Consequences

Tall, urbane Leroy K. New presented opening arguments for the State of Indiana on April 27, 1966, commencing the trial of Sylvia Likens’ accused murderers in the courtroom of Judge Saul Isaac Rabb.   

                                    The Trial of Sylvia Likens, by Kate Millett

The Indianapolis media gave the trial a sensational build up.  Hints of what was to come were evident in the December 1965 grand jury hearings in which Gertrude Baniszewski gave testimony.  The grand jury indicted Gertrude, Paula, Stephanie, Johnny, Coy Hubbard, and Ricky Hobbs for first-degree murder.  Leroy New announced he would seek the death penalty against them all.

John Hammond, the Baniszewski family lawyer, could not represent Gertrude and her children since their individual defenses would pit each against the rest.  Hammond stayed on as Stephanie’s counsel and referred the others.  William C. Erbecker would represent Gertrude.  Forrest Bowman, Jr., would represent Johnny as well as Coy Hubbard.  George Rice accepted Paula’s case.  Each of the three attorneys tried their cases pro bono.  Judge Rabb assigned Ricky Hobbs a paid public defender, James Nedeff.

All of the defendants except for Stephanie went on trial in April 1966.  Stephanie’s trial was postponed until after she testified for the prosecution.  Although the prosecutors and Stephanie each emphatically denied there was a quid pro quo for her taking the stand, the Marion County grand jury revisited the evidence against her in June and dropped the charges.  Those initially charged with injury to person were not prosecuted and several of them testified against the defendants. 

The others had been held without bail since their arrest, even the children.  The heinousness of the crime and the shiftless nature of the Baniszewskis certainly had a lot to do with this.  However, Leroy New had little compunction about keeping juveniles charged with murder locked up pending trial.  In 1964 New objected to bail for a twelve year old who killed his older brother with a shotgun after an argument over money to buy ice cream.  The judge set bail for the boy only after his father suffered a heart attack in the courtroom during the hearing.

It is a testament to the collective stupidity of Sylvia’s killers that almost all of them were frank about what they did in their statements to the police though they stopped short of admitting to murder.  Once their cover story fell apart—that Sylvia had run off and then suddenly reappeared a few hours before her death half-naked and clutching a note conveniently explaining everything—it seems they were plumb out of ideas.  Gertrude was willing to waive her rights and answer police questions without a lawyer present because she believed she had done nothing wrong.  Paula’s police statement is blunt and unapologetic, as is Coy Hubbard’s.  Ricky Hobbs gave a rather chilling interview to Bob Hoover of radio station WIBC admitting his role, including the fact he had done most of the branding on Sylvia’s abdomen, but his demeanor clearly implied he should be off the hook because Gertie told him to. 

By today’s standards I am not sure that the statements taken from the suspects in the hours following their arrest could have been admitted in court.  Stephanie, the only Baniszewski with two brain cells to rub together, urged her mother to call her lawyer once they got to the police station but Gertrude evidently didn’t do so until after she had spoken with the investigating officers.  Certainly the defense attorneys tried mightily to suppress the statements.  Reading the transcript the ignorance of the police officers of their suspects’ Fifth and Sixth Amendment rights is appalling.  The first trial occurred after Escobedo v. Illinois and Gideon v. Wainwright had been decided but before Miranda v. Arizona.  (The U.S. Supreme Court had heard oral arguments in Miranda but would not hand down its opinion until two weeks after the trial had concluded.) 

Forrest Bowman and the other defense lawyers tried to get as much mileage out of Escobedo as they could, but Judge Rabb put his foot down saying it wasn’t practical for a policeman to have a lawyer “in his back pocket” at all times.  A subsequent Supreme Court precedent, Bruton v. U.S., which was decided in 1968, limited the evidentiary value of a confession by one defendant implicating another in a joint trial if the other defendant did not testify.  The Bruton rule would have tied the prosecution’s hands had it been in place at the time.  If State v. Baniszewski had been tried today the defendants would have been undoubtedly acquitted. 

Standards were different then, though that did not register with any of the accused.  The younger defendants were certainly clueless as to the seriousness of their predicament.  This is evident in their behavior before and during the trial.  There was the Hobbs boy’s on-air confession to Bob Hoover, of course.  Forrest Bowman reprimanded Johnny several times during the trial for fidgeting and other distracting behavior.  George Rice had to tell Paula to quit working crossword puzzles and pay attention.  By contrast Stephanie, before she got her separate trial, used her time efficiently doing homework for her classes at the Juvenile Center.  But even Stephanie displayed her own peculiar brand of obliviousness.  Like her victim, Stephanie had a talent for sketching.  At times she idly drew pictures of Jesus Christ and Judge Rabb as the proceedings went on around her.

The defendants had all done things before the trial which made any hope of acquittal remote.  Gertrude had inexplicably testified before both the grand jury in late 1965 and in her own defense at trial.  Leroy New had little difficulty catching her in a raft of inconsistences between her trial testimony and her statements to the grand jury.  She claimed the inconsistencies arose from fear for her children.  Every witness was lying except Gertrude.  She would have done better to keep mum.

Gertrude wasn’t helped much either by eleven year old Marie, who was there to testify on her mother’s behalf.  Marie’s performed well enough during the first day of her testimony.  No, Mom couldn’t have done what she’s accused of.  She took good care of the Likens sisters; what happened to Sylvia was the work of the other kids.  The little girl didn’t stand a chance against Leroy New, however.  Throughout the trial New had left the questioning of most of the child witnesses to co-counsel Marjorie Wessner, who as New himself conceded had a gentler touch.  The often overbearing New reserved Marie’s cross-examination for him alone.

Marie, though tearful, held up under cross at first until New teased out the inconsistencies in her story.  After that she became progressively confused until, in a Perry Mason-like moment, Marie broke down at last and cried “Oh God help me!”  When she calmed down, Marie admitted her testimony to that point had been untruthful and her subsequent answers more or less corroborated what had been testified to by other witnesses.  Forrest Bowman further impeached Marie’s credibility when he asked her if she had been untruthful on the stand, which she started to deny until she realized what she was saying with a startled “Oops!” that elicited much laughter in the courtroom.  This was probably the only moment of levity in an otherwise grim proceeding.

The personal conflicts among the lawyers at the trial have become apparent with last year’s publication of Bowman’s memoir Sylvia: The Likens Trial.  Bowman alleges Leroy New was driven by an overweening desire for publicity and accuses New of grandstanding when cross-examining defense witnesses.  Bowman, a careful legal scholar with a strong respect for procedure, found New’s courtroom style irksome.  He describes his dislike of New ripening into contempt when he chose to call Shirley to the stand to testify against Gertrude.  Bowman relates that during a lunch break New stopped him on the street and suggested he put Johnny on the stand to testify against his mother as well despite the fact this would endanger Johnny’s Fifth Amendment right against self-incrimination.  During this encounter New vowed “to put Gertie’s ass in the electric chair.”  Bowman criticizes New for seeking first-degree murder convictions and the death penalty against all six defendants, even the juveniles, as the “ultimate ego trip” for New, a gamble he did not win in Bowman’s eyes.

I think both New and Bowman had a deep capacity for righteous indignation.  While Bowman conducted himself professionally, the actions of the other defense lawyers raise eyebrows.  Gertrude’s lawyer Erbecker was determined to portray his client as insane at the time of the crime and so he asked nearly every witness he examined and cross-examined whether they thought Gertrude actually was.  Ricky’s public defender Nedeff was of questionable competence.  At one point Bowman, fearing Nedeff was jeopardizing Nedeff’s own client’s life, barged into Judge Rabb’s chambers during a courtroom break to protest Nedeff’s assignment to a capital case.  (After the jury convicted Ricky on the lesser charge of manslaughter, Rabb remarked to Bowman in passing, “That Nedeff is some lawyer.”) 

But it was the conduct of George Rice, Paula’s attorney, whose conduct raises my hackles most.  A speech professor with a Ph.D. in psychology who practiced law on the side, he had a reputation for eccentricity and button-pushing.  (He once mockingly clicked his heels like a German soldier in front of Rabb, who was Jewish.)  Rice’s questions during his cross-examination of Jenny Likens reflect his quirkiness.  He led off by asking her if her legal name was in fact Virginia; while this was not the case Jenny inexplicably answered in the affirmative twice.  (When Rice later questioned Nurse Sanders on the stand he referred to Jenny as “Virginia Likens,” understandably confusing her.)

Rice’s lines of questioning reek of attempted character assassination, zealous advocacy notwithstanding.  He asked Jenny about Sylvia’s grades; she said she thought Sylvia was an average student.  What about Jenny’s grades?  C’s and D’s, mostly.  Was Sylvia involved in any sports or extracurricular activities at school?  No.  Any awards or scholarships?  No.

Then Rice’s questioning took an ugly turn.  Did Sylvia have dates, boyfriends?  Yes.  How many dates a week?  Leroy New objects here unless the time was fixed; Rabb sustained him.  All right, then, how many dates did Sylvia have in the spring of 1965?  She had a boyfriend when they lived on New York Street; sometimes she would visit his house.  Was she there often? 

At this point Jenny makes one of those inexplicable stray, offhand, potentially damaging comments which are scattered throughout her testimony.  “Well, there were the twins…”  When Rice pounces on this and asks if Sylvia saw them often Jenny realizes her misstep and quickly adds that Sylvia was good friends with the twins’ sister too. 

The ugly implication of these questions is quite clear.  Because Sylvia wasn’t a straight-A student, wasn’t class president, wasn’t captain of the volleyball team her life was somehow less worthy.  Justice was for well-scrubbed, well-heeled suburban girls, not for those from Eastside.  Add to that the insinuation Sylvia had had a number of boyfriends, well…

But Rice wasn’t the only defense attorney who tried to cast aspersions upon Sylvia’s honor.  Or Jenny’s.  Before Rice began his cross Gertie’s lawyer Erbecker had clumsily tried to elicit an admission from Jenny that perhaps she herself was faster than she wanted to admit.  After bizarre exchanges over whether her disability gave her discomfort and whether she smoked while living with Gertrude—occasionally at first; later, no—Erbecker asked about Jenny’s boyfriends and dating history.  She answered she had had boyfriends but had never been on a date. 

In other words Erbecker hoped to establish that she went around with men while Jenny clearly meant your typical middle school, I-like-you-do-you-like-me, passing notes in class sort of thing.  (John Dean writes that Jenny was embarrassed by this line of questioning, hanging her head in humiliation.)  After a further round of scattershot questions, including a few concerning the Long Beach house party, Erbecker wound up his cross by asking Jenny if she believed Gertrude was insane.  After the inevitable flurry of objections and rephrased questions, she replied she didn’t know.

The term “slut shaming” didn’t exist in 1966, but the practice did.  The onus of virtue was on the young woman; she was either a “good girl” or she wasn’t.  Portraying Sylvia as a “bad girl” was the only hook the defense had as mitigation since the evidence was so strongly against them.  Today I hope we are enlightened enough to where a jury would ignore that sort of argument even without instruction from the bench.  But back then even the hint of promiscuity could be damning.  With Sylvia not around to defend herself, it became a matter of the Likens family’s word against that of the Baniszewskis. 

The trial did not want for dramatic or poignant moments.  Few witnesses provided as many such moments as the deputy county coroner who first examined Sylvia’s body at the Baniszewski house, Arthur Kebel.  When asked by New the extent of her injuries Kebel paused a moment before answering, “One would hardly know where to begin” which naturally brought loud objections from the defense.  Too often Kebel’s desire to explain the full extent of the harm done resulted in him being admonished by Judge Rabb to confine his answers to a simple “yes” or “no.”  At one point, frustrated at having his testimony circumscribed in such a manner, Kebel asked the judge if he could answer in his own way.  Rabb came back with a sardonic, “You try, doctor.”  (The testimony of the pathologist who performed the autopsy, Charles Ellis, proceeded somewhat more smoothly.)

But perhaps the one most affecting statements from a witness during the trial, aside from those of the Likens family, was when Dr. Kebel was asked his reaction upon first seeing Sylvia’s lifeless body.  Leroy New recalled in an interview years later Kebel said he and his wife were unable to have children and he could not understand why anyone would destroy a young child.  Unfortunately this remains the great imponderable of Sylvia’s murder.

It wasn’t just the witnesses who supplied the drama during the trial.  The spectators, enticed by months of sensationalistic, even prurient news coverage, crowded the courtroom, their periodic murmurs and exclamations testing Judge Rabb’s patience to the point where he barred standing spectators.  This led to competition for spectator seats; at one point two women physically struggled over possession of the last remaining seat.   (One was injured and taken to the hospital.)  Another woman walked into Rabb’s chambers during a recess to complain that people at the rear of the courtroom couldn’t hear what was being said.  Baniszewski family lawyer John Hammond, who represented Stephanie, caused a minor furor after it became known he had urged Forrest Bowman to get a severance for Johnny and Coy during an elevator ride in the presence of a juror.

William Erbecker predictably provided his share of awkward moments, particularly when his quest to have Gertrude found insane ultimately backfired in the most embarrassing fashion.  One of his witnesses, psychologist Jerome Relkin, an odd mannered gentleman who passed the time waiting to testify soundly sleeping in an armchair in the antechamber, gave interesting testimony.  Relkin said he had given Gertrude several personality tests, among them one where Gertrude was asked to draw herself with Relkin interpreting the way she drew her hands.  Despite Erbecker’s best efforts Relkin stopped short of saying Gertie was not responsible for her actions.  Recalled to the stand by the prosecution, Leroy New quickly demolished Relkin by establishing that not only had Relkin trained at the LaRue Carter State Hospital but that he had also been a patient there.  (It later came out that Erbecker, who was bipolar, had first met Relkin at LaRue Carter as a fellow patient.  Erbecker denied this.)

There were affronts to the integrity of testimony: Witness Judy Duke’s mother was reprimanded and told to leave the courtroom for answering questions from the audience during Judy’s testimony.   There were the eccentric moments: One Jay Tuck, an Antioch College student who was observing the trial on behalf of the American Humanist Association, expressed his outrage over the neighbors’ apathy toward Sylvia’s plight to the Star as well as the barbarity of the state seeking the death penalty for the juvenile defendants.  (Tuck would go on to become a prominent radio announcer in Europe.)  And there was a surfeit of pathos: Jenny Likens, who was present in court throughout the trial, frequently broke down crying, and there were occasions where her sobbing became so loud she had to be escorted from the courtroom by her minder Officer Norman Collins.

The closing statements varied in tenor and tone.  Marjorie Wessner closed for the prosecution, comparing Sylvia’s conditions to those in a German death camp.  The emotion of describing Sylvia’s suffering caused Miss Wessner’s voice to nearly break a couple of times.  George Rice spoke of the “chill penury” of the Baniszewski household and of Sylvia as the unfortunate target of their frustration after years of poverty.  Gertrude’s lawyer Erbecker gave a predictably strange closing, brandishing the photo of Sylvia’s mutilated body at the jurors.  Yes, Gertrude was responsible for the death of Sylvia Likens.  Yes, she was deserving of the electric chair.  But the jury couldn’t send Gertrude to her death because she was insane. 

Coy and Johnny’s lawyer Bowman lambasted Prosecutor New’s aggressive cross-examination of the child witnesses, as did Ricky’s lawyer Nedeff.   Bowman argued it was “just an accident” that it wasn’t Sylvia on trial for killing Johnny, that the climate of frustration in the Baniszewski home was such that the victim really could have been any of the children.  (The latter statement is plausible; Stephanie once said if it hadn’t been Sylvia she herself might well have been the victim.  I refuse to believe the former on general principle.)  Nedeff reminded the jury of all the adults in the community who were either aware of Sylvia’s abuse or should have suspected it and yet did not come to her aid.   

But it was Leroy New’s rebuttal to the defense which stole the show.  John Dean has likened New’s 35-minute speech to that of a revival preacher.  New told the jury Sylvia Likens did not run away from the Baniszewski home or report her persecutors because she “trusted in man” and could not believe that the people she had been entrusted to would actually continue to hurt her.  By the time she realized the seriousness of her predicament it was too late.  Addressing the defense’s plea of poverty, New retorted that poverty did not excuse bestiality and that he had lived in poverty himself.  (This last statement was gilding the lily a bit if one is familiar with New’s biography.)  Finally, dismissing all the defense attorneys’ rationalizations, New declared, “I can’t hear a word these people are saying because the voice of Sylvia Likens cries out to both God and man.” 

Powerful stuff, that.  But perhaps not as effective as Leroy New had hoped.  From the distance of fifty years it’s difficult to follow what the jury’s logic may have been arriving at its judgments of guilt and punishment.  Perhaps it was the youth of most of the defendants.  Maybe the defense’s insinuations about Sylvia implanted small seeds of doubt in some of the jurors.  The State of Indiana had asked for first-degree murder convictions and death by electrocution for each of them.  Gertrude was convicted of first-degree murder.  Paula was convicted of second-degree murder.  Each drew a life sentence.  The others—Coy, Ricky, and Johnny—were convicted of manslaughter and sentenced to two to 21 years imprisonment.  Johnny at the time was the youngest inmate ever at the Indiana State Penitentiary.  All three served the minimum sentence.

Gertrude and Paula successfully appealed their convictions and were granted retrials with a change of venue.  While awaiting trial, Paula briefly escaped and was soon caught.  The prosecution offered Paula a plea deal; she pled guilty to manslaughter and was sentenced to two to 21 years.  Astoundingly, she escaped a second time, was caught, and was still paroled two years into her new sentence.

Gertrude’s 1971 trial in Peru, Indiana was shorter than her first but resulted in the same outcome.  At the time under Indiana law, the only sentencing choices a jury had for first-degree murder were death or life imprisonment.  At the time of Gertrude’s conviction Indiana’s governor had imposed a moratorium on executions pending a decision from the state legislature, the state having last carried out an execution in 1961.  By the early 1970s death sentences were increasingly rare.  After 1972, with the U.S. Supreme Court’s decision in Furman v. Georgia, all existing death sentences were overturned and no new ones upheld until states changed their capital punishment laws to meet the Furman standard.  Even if Gertrude had drawn a death sentence both in 1966 and again in 1971 it is highly unlikely she would ever have been executed, and the sentence would have been commuted to life by Furman anyway.

And so Gertrude was once again sentenced to life.  Indiana’s legislature did not adopt life without parole as a possible sentence until 1993, which meant Gertrude would become eligible for parole at some point.  With the help of her prison chaplain, Rev. Rubin Fields, Gertrude applied for release in 1985.  She had been a model prisoner and a mentor to the younger inmates.  She had trained as a cosmetologist and as a secretary.  She received a favorable report from the warden.

When the news of Gertrude’s impending parole became known it was clear people in Indianapolis had not forgotten Sylvia Likens.  An activist group helped Jenny Likens file a lawsuit to block Gertrude’s release.  A petition circulated, and more than 40,000 signatures were collected. 

Initially, they were successful.  However the parole board reversed itself a second time and Gertrude went free in December.  Going by her middle and maiden names to put Gertrude’s past behind her, Nadine Van Fossan moved away to Iowa and obscurity.  She died of lung cancer in June 1990.

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