Sylvia - X: The Prosecutor (Or, The Importance of Being Leroy New)

Of all the people concerned in the aftermath of the Sylvia Likens murder, the one I most would have liked to have met is Leroy K. New. 

I think it’s because as a quiet person I’m fascinated by people with big personalities.  Researching New’s life and career, my opinion of the man wavers between bemusement and unabashed admiration.  I’m not sure how he would take someone like me.  Although I hope we would find common ground on certain issues, Leroy New espoused a much different worldview from my own.  He was a staunch Nixon Republican and an eager combatant in the early battles of the culture wars, so there would probably have been a few topics of conversation to avoid.  However, the people who knew him best remembered him as an upright, loyal, and generous man who strove to better the lives of those around him.

New was involved with a number of organizations and causes including his church, the Boy Scouts, the Carmel-Clay (Indiana) Chamber of Commerce, Lions Club, and the Masons.  He was active with the local musicians union throughout his life and was a founding director of the Indianapolis Municipal Orchestra as well as a supporter of the Carmel Symphony Orchestra.  He also possessed an entrepreneurial spirit.  During and after his tenure with the Prosecutor’s Office New engaged in a side career as a real estate developer in Florida, even founding and serving as president of the utility company that supplied the development’s water.  Public records also indicate that for a time New owned a private investigations agency in Carmel.  In addition to all this, during his time as a prosecutor New maintained a side practice specializing in probate law. 

By accounts New enjoyed horseback riding and fishing in his free time and he owned a small stable of BMW motorcycles over the years.  True to form as a skilled courtroom litigator, he was something of a raconteur.  New’s 2005 obituary is a litany of accomplishments by a man who devoted himself to family and community. 

Leroy Kenneth New was a Leap Year baby.  He was born in Alexandria, Virginia, on February 29, 1920, as his father, Edward Funston New, Sr., completed his legal studies at American University.  After graduation the family moved to Indiana.  Something of a prodigy, Leroy and his brother Edward, Jr. (a future judge) were regular performers on a local radio show as small children.  A gifted musician who played the saxophone and piano,[1] he was part of the opening band in the movie The Wizard of Oz and toured for a while with the Tommy Dorsey Orchestra.  He entered Butler University at age sixteen, transferring to Stetson University in Florida after three years.  At Stetson, he pledged Sigma Nu and played baseball and tennis.  While at university, Leroy met his future wife Joyce whom he won over by serenading her with the song “For You” outside her dormitory window.

New went on to earn his law degree from Indiana University.  He joined the U.S. Coast Guard during the Second World War after he and his brother resigned from the Navy V-7 commissioning program.  New served at the Coast Guard Academy and overseas in Italy and was discharged in 1945 as a Musician First Class. 

Returning home, New entered the practice of law.  With his wife and two daughters they built a life for themselves in the Indianapolis suburb of Carmel.  In 1957 New became Chief Trial Deputy under Marion County Prosecutor Noble Pearcy.  He would work in this capacity for the next 18 years.  State Senator Lawrence Borst described Pearcy and New’s working relationship in his autobiography.  According to Borst, New handled the day-to-day running of the Prosecutor’s Office while Pearcy schmoozed with Marion County’s Republican luminaries hosting weekday afternoon cocktail parties at his home.  (Pearcy’s relationship with the GOP’s Indianapolis nabobs wasn’t always a perfect one; the easygoing Pearcy did not get on well with the ambitious County Republican Central Committee chair L. Keith Bulen.  Pearcy had not supported Bulen’s previous candidacies before Bulen was finally elected in 1966.)

It’s interesting to look at New’s career in the context of Indianapolis politics.  In the state where I live local political offices such as district attorney are nonpartisan.  A mayor or county supervisor may be a Democrat or Republican but they cannot campaign or hold office as such.  In Indiana this is not the case.  Leroy New was a member in good standing of the Indianapolis Republican establishment.  He was an ally of an up-and-coming politician named Richard Lugar, who would fill two terms as Mayor of Indianapolis and later serve Indiana in the U.S. Senate for 36 years.  There is a fair amount of correspondence in the Lugar archive at the University of Indianapolis either with New or in which New is mentioned.   

Here is where I should offer a caveat considering our perspective on Leroy New.  Considering the totality of his life and career I believe it important to parse his public career and private life.  New the family man and community leader presents a rather different picture from that of his career as an attorney and prosecutor.  For although he was widely respected in law enforcement circles not everyone was an admirer.  A man in Leroy New’s position is bound to acquire enemies along the way.  Gertrude Baniszewski’s lawyer William Erbecker is said to have roundly disliked New and may have harbored a grudge over cases he had lost to him.[2]  (Erbecker’s ill feelings probably weren’t assuaged when at one point in the trial New called Erbecker’s courtroom antics “buffoonery.”)  Johnny and Coy’s attorney Forrest Bowman was and is a pointed critic.

In his memoir of the first Likens trial, Forrest Bowman is forthright in his assessment of both New the man and New the lawyer.  Bowman describes New as “vain to the point of haughtiness.”   As Chief Trial Deputy Counsel, New could pick and choose which cases he tried personally.  Bowman accuses New of taking on only high profile cases, particularly where there was a “sexual element.”  He is also critical of what he considered New’s indifference to the finer points of criminal procedure: Bowman had lost two trials to New before the Likens case but both clients’ convictions were reversed on appeal.  Bowman notes sourly that this did not concern New much because it is trials rather than appellate court decisions which get publicity.

After Bowman’s book came out the Sylvia message boards lambasted his treatment of New, partly because of New having put Gertrude and Paula Baniszewski behind bars and partly because his family had cared for Jenny Likens after the trial.  Notwithstanding this Bowman raises valid points about New’s lawyering skills.  New was a successful trial attorney due to his rhetorical talents and ability to sway juries.  Looking over opinions of some of the criminal appeals New handled in private practice he seems to have been less effective persuading appellate court judges.  Out of the ten or so cases I researched online, New got his client’s conviction reversed in only one.  Common complaints in the holdings included New’s offering up irrelevant arguments and making assertions without supporting evidence. 

New was sometimes lax when it came to performing due diligence.  On one occasion this literally cost him.  He had been assigned as administrator of a decedent’s estate in the early 1960s.  New distributed the estate’s proceeds to its beneficiaries satisfied he had investigated the man’s financial liabilities.  In fact, the decedent had neglected to pay his Federal income taxes for several years.  New was found personally liable by the U.S. Tax Court in 1967 for the man’s back taxes, which amounted to approximately $5,000 (equivalent to about $36,000 today). 

The judge who wrote the opinion noted that New had relied on “several peripheral arguments, none of which are meritorious” to avoid liability.  He also observed that it would have been little trouble for New to research the decedent’s taxes since the Indianapolis IRS office was only two blocks from New’s office in the City-County Building.  New v. Commissioner of Internal Revenue, which held that an estate administrator who makes a unilateral investigation into a decedent’s tax liability does so at his own risk, achieved minor notoriety having been addressed in at least a couple of law review articles.

But this contretemps with the IRS wasn’t what kept Leroy New in the public spotlight.  Even when there wasn’t a high profile case, New wasn’t shy about weighing in on matters great and small for the Indianapolis press.  When the Kingsmen’s hit single “Louie, Louie” was being challenged on obscenity grounds across America, New naturally had his investigators subject the record to rigorous listening.  He couldn’t find anything morally objectionable in the garbled lyrics but the former professional musician did have something to say about the song’s artistic merit.  New commented that “the record is an abomination of out-of-tune guitars, an overbearing jungle rhythm, and clanging cymbals.  In fact the record is an indictment of the taste of the American public.”  Music critic Dave Marsh remarked that New didn't think the words were obscene, but the law "just didn't reckon with dirty sounds." 

New did have a tendency to moralize.  The cultural and generational divide of the 1960s forced people to take sides.  Leroy New was part of the Greatest Generation and his politics were decidedly conservative.  There is a handwritten note in the University of Indianapolis archives from New to the wife of then mayor Dick Lugar.  It asked her to tell Lugar, who was traveling to Washington to meet with President Nixon, to tell the President that he, Leroy New, fully supported Nixon’s law and order policies. 

New figured prominently in anti-obscenity prosecutions in Marion County.   The Lugar Mayoral Archive at U Indy contains numerous references to New’s crusade to clean up the city.  At times it appeared as if New was waging a one-man War on Smut.  He also found himself caught in the police vendetta against nightclub owner Jacque W. Durham.  Durham, himself a former Indianapolis police officer, owned the legendary after-hours jazz venue the Missile Room.  (Among other noteworthy contributions to jazz, the Missile Room was where Cannonball Adderley discovered guitarist Wes Montgomery.) 

During the late 1950s and early 1960s, Durham was frequently cited and occasionally jailed for violations of state liquor laws.  Durham claimed this was because he would not pay protection money to the police.  No matter, in 1963 Durham, who was black, was indicted for the statutory rape and sodomy of two white teenagers.  New assigned himself to try the case.  John Dean notes convictions against “vice kings who kept teenage prostitutes in slavery” among New’s record of trial victories; perhaps Durham was one of them.  There are few, if any, references to Durham in the Indianapolis press after 1964.

On another front of that era’s social conflicts, New was accused by supporters of the local chapter of the Black Panther Party of the improper prosecution of its leaders for allegedly conspiring to rob an armory.  One of them, Omar Shabazz, was later tried and acquitted of conspiring to murder Indianapolis police chief Winston L. Churchill.  The 1960s were clearly a busy time for both Indianapolis and Leroy New.  New undoubtedly enjoyed every moment in the arena.

New courted publicity even while the ship was going down.  After his patron Noble Pearcy was defeated for reelection in the Democratic sweep of 1974 New refused to drop charges against Mary Martin, a madam at the heart of the police corruption scandal which had contributed to Pearcy’s loss.  As the Indianapolis Star noted at the time, “Chief Trial Deputy Prosecutor Leroy K. New, known as a flamboyant courtroom performer, announced he would 'pull out all the stops' in the trial as a grand finale to his 14-year [sic] prosecutorial career.”  The Star went on to note wryly, “Prosecutor-elect James F. Kelley is not expected to retain New after the first of the year.”

Around the same period, New publicly implicated a man named Andrew Foster as a heroin kingpin.  New failed to win an indictment against Foster from the grand jury and Foster sued Pearcy for libel alleging Pearcy had been negligent in hiring and supervising New.  It would be nearly five years before the Indiana Supreme Court resolved the case in Pearcy’s favor citing the prosecutorial immunity of both Pearcy and New.[3]

The Foster kerfuffle did not end with this victory however.  New had also made statements to the press alleging Foster was a drug trafficker after he had left the Prosecutor’s Office, and so Foster sued New for libel.  After two unsuccessful appeals by New to get the lawsuit dismissed the case was remanded for trial.  (Foster’s attorney?  Forrest Bowman.)  I was unable to uncover the outcome of the trial, assuming there wasn’t a settlement or that the suit wasn’t withdrawn.  In any case New failed to recognize that sometimes discretion is the better part of valor.

History has not treated Pearcy’s tenure as County Prosecutor favorably.  The adjective “corrupt” is frequently applied by the journalists, politicians, and lawyers who observed the Prosecutor’s Office during the Pearcy era.  This does not bode well for Leroy New’s legacy as Pearcy’s lieutenant since Pearcy’s critics tend to mention both men in the same sentence.  The Tinder Committee, chaired by Pearcy’s predecessor John Tinder, investigated the Prosecutor’s Office’s practices after Pearcy’s departure.  Tinder commented to the Star that he was “alarmed at some practices used” and urged the Indianapolis Police Department and Prosecutor’s Office to adopt his recommended reforms. 

Pearcy and New’s perceived mishandling of the police corruption investigation created a deep rift among Indianapolis Republicans in the run-up to the 1974 election.  One Charles O’Brien wrote an angry letter to Dick Lugar, who was making his first run for U.S. Senate.  O’Brien declared he would not vote for Lugar if he continued to support Pearcy and New, “even if they are Republicans,” following the bribery indictment of two Indianapolis Star reporters.  The reporters, legendary Indianapolis newsmen Dick Cady and Bill Anderson, had gotten an informant to offer a bribe to a police lieutenant as part of their investigation. 

The scandal stirred up a storm of recriminations.   The Marion County Sheriff accused New of “brainwashing” the grand jury into not returning indictments against two police officers accused of the armed robbery of an illegal poker game.  For his part New blamed the Star for undermining public confidence in law enforcement, complaining that “Every hoodlum who’s been indicted says he’s being picked on.  It’s the stock response.” 

This last statement was a bit of hyperbole, even for New.  The Star was then owned by the archconservative Pulliam family and would not have picked a fight with prominent Republicans such as Pearcy and New without good reason.  I’m told Cady discusses the police scandal in his memoir Deadline: Indianapolis, but I have yet to read it.  Cady, Anderson, and Harley Bierce received the Pulitzer Prize for their reporting.  The bribery charges against Cady and Anderson were dropped after Pearcy’s successor James Kelley took office.

I do not believe either Pearcy or New was literally corrupt.  However, their law and order agenda undoubtedly blinded them to corrupt practices within the Indianapolis P.D. and there was more than a hint of cronyism between the county’s top two prosecutors and the police department leadership.  For New’s part, his refusal to back down in the public arena even when he was clearly in the wrong lent additional credence to his and Pearcy’s enemies’ claims.

We all have our foibles, I guess.  Perhaps New was vain, as Bowman accuses.  He also comes across as a take-no-prisoners political infighter with turf to protect.  His ego occasionally led him into cringe inducing acts and statements.  But it’s clear to me that he was a man of probity in his personal life.  He believed in the value of good works and he lived that belief.  New demonstrated true generosity of heart when he and his family fostered Jenny Likens in the months following the trial.  A lesser man would have savored his victory for a moment then moved on to the next challenge satisfied he had done all he could do.  New sought to do more.  Not wanting to see Jenny subjected to another round of being boarded out to strangers while Lester and Betty returned to the fair circuit, New and his wife instead provided her with a home as well as a sense of stability and safety in the wake of chaos and fear. 

Remarkably for a man who missed few opportunities for self-promotion, I could not uncover any evidence New ever exploited his benevolence to the Likens family.  In fact there really aren’t that many references to it in any account of the Sylvia Likens case.  John Dean devotes a few paragraphs to Jenny’s stay with the News in House of Evil; Kate Millett mentions it only in passing in The Basement.  Other references to it, such as in news media retrospectives on the case are either incidental or absent.  I can only conclude that his help to Jenny, which included procuring a new leg brace for her, was simply an act of caritas or charitable love.  I think that alone outweighs a multitude of venial sins.  Leroy New may have had a high opinion of himself, but we should keep in mind that one must love oneself before one can love others.

I think his assisting Jenny was characteristic of his overall approach to the people in his personal life.  A post by a relative to New’s online obituary mentioned that New had once said that he had lived a charmed life and this obligated him to help people whenever he could.  This sentiment was undoubtedly behind his community activism and charitable work.  Despite his controversial public profile Leroy New was remembered by those closest to him as warm and kind and supportive of his friends.  I suspect that once he had left the Prosecutor’s Office and the temptations of the public stage it afforded him New pursued a more grounded existence.

 

Upon leaving public service New went into private practice with Pearcy.  By 1990 he was operating a solo practice from his home in Carmel as well as from his second home in Florida.  Sylvia Likens remained in his thoughts as the years passed.  For New, Sylvia’s tragedy was a morality tale that we forget at our peril.  He frequently revisited the case in his writings and public statements.  Although he did not get the full measure of justice he sought for Sylvia Likens and her family, Leroy New spent the balance of his life making sure the world never forgot her. 

That by itself is quite a legacy.

© 2015 The Unassuming Scholar

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[1] Interestingly, New’s co-counsel in the Likens trial, Marjorie Wessner, had studied the string bass and piano at Jordan Conservatory before entering law school.

[2] Erbecker had a checkered legal career, due in part to his periodic nervous collapses and alcoholism.  Prior to the Likens trial he had been indicted for suborning perjury the charge was later dropped.  During the 1970s and 1980s he was the subject of several disciplinary actions.  Erbecker drew a year’s suspension from the bar by the state supreme at one point for missing court appearances and appearing in court while intoxicated.  In another incident he was reprimanded for plagiarizing part of a legal brief.

[3] The U.S. Supreme Court limited prosecutorial immunity in 1993 with its holding in Buckley v. Fitzsimmons.