Court Closing and Verdicts

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Court Closing and Verdicts

Postby admin » October 31st, 2010, 5:08 pm

THE COURT: Alright, the jury is out of the courtroom. On your motion for a psychologist's examination, which you said you would renew later, and I assume you have.

MR. ERBECKER: I do renew it.

THE COURT: It will be overruled.

MR. BOWMAN: I have a motion, for directed verdict.

THE COURT: Let's see your motion.

MR. BOWMAN: It is oral.

THE COURT: Want to say it out loud?

MR. BOWMAN: On behalf of John Stephan Baniszewski and Coy Hubbard, both defendants move for a directed verdict of not guilty. Both defendants further move the court to withdraw from the consideration of the jury the issue of First Degree Murder. Both defendants further move the court to withdraw from the consideration of the jury the issue of Second Degree Murder. Both the defendants further move for a withdrawal of the submission and additionally renew all previous motions for the withdrawal of the submission heretofore made, all for the reason that the separate trial prayed for was in fact necessary for a fair trial, as shown by the record in this case.

MR. RICE: Please the court, defendant Paula Marie Baniszewski at this time moves the court to withdraw her cause from the submission to the jury, and particularly with regard to the charge in the indictment alleging First Degree Murder, also with regard to the charge in the indictment with regard to Second Degree Murder, also with regard to the charge of Manslaughter, included under this indictment, first on the grounds of failure to have a fair and just trial on the grounds that there was not a separation of defendants for the purpose of trial, as prayed for and renewed on two occasions during the course of the trial. Some of the evidence before the jury is not fairly entitled to be considered, for consideration of the jury.

MR. NEDEFF: Richard Dean Hobbs makes the same motion for directed verdict and assigns the same reasons and grounds assigned by Attorneys Rice and Bowman, also for the additional grounds of lack of evidence,insufficient evidence to take the case and give it to the jury.

THE COURT: Any other motions?

MR. ERBECKER: Defendant Gertrude Baniszewski respectfully moves the court to instruct the jury to return a verdict of not guilty as to First Degree Murder for the reason the record is barren of any premeditated malice on the part of the defendant. The defendant further moves the court to direct the jury - to instruct the jury to return a directed verdict of not guilty to Second Degree Murder because the record is barren of all elements essential of Second Degree Murder. She further moves the court to instruct the jury to return a verdict of not guilty of First Degree Murder and all counts therein because the state failed to prove beyond a reasonable doubt she was sane at the time of the commission of the acts charged, and is sane now, as shown by the court appointed doctors in this case by the testimony of Dr. Kebel and by the other medical testimony in this case which the state was failed or refused to disprove, and as a matter of law the defendant here is entitled to a directed verdict of not guilty.

THE COURT: Show all motions overruled.

MR. BOWMAN: I would like to say for the record right now, so all parties are aware of the fact, the Home Edition of today's Indianapolis News carried on the front page, a photograph of the interior of this court room at the time court was in session during this trial, I believe in contravention of the rules laid down in Estes vs United States. I have been unable to determine whether or not any prejudice has resulted as a result of that.

THE COURT: I have charged the jury at every recess, even two minute recesses, not to read newspaper articles. No ruling is needed on what you said, is there? You just made a statement, correct?

MR. BOWMAN: Yes, I think for the information of all parties in the event somebody did not realize that it had happened. I think in all fairness, everyone should know it happened.

MR. ERBECKER: Gertrude Baniszewski at this time moves the court to poll the jury tomorrow morning to ascertain what degree of influence, if any, was made, what prejudice resulted, if any, by the unwarranted violation of the court's edict not to take pictures here, and since Mr. Bowman's description of the picture does include the jury, which would naturally give rise to the speculation they did view the picture, since their picture was there, did read the newspaper and contents of the trial and the article appearing with reference to the trial. I think, with reference to all defendants, the jury should be polled to determine what, if any, influence there has been.

THE COURT: I think the jury is going to listen to me, to what I saw. Motion to poll the jury overruled. As I got back from lunch some of the news media were very insistent I see the picture. I know what Mr. Bowman is talking about. Anything further, Gentlemen? How much time for argument.

MR. BOWMAN: I don't think I can determine that until after the instructions have been tendered.

THE COURT: Do you want me to reread instructions?

MR. NEW: The state does not, Your Honor.

MR. ERBECKER: Defendant Gertrude Baniszewski wants them reread.

THE COURT: The court will reread court's instructions 1 to 34. Court will give additional court's instructions No. - I will number them in a minute for you. Court will give court's additional instructions No. 35 to 62, Defendant Gertrude Baniszewski tenders her tendered instructions No. 1 to 193, as follows, H. I.

MR. RICE: Defendant Paula Marie Baniszewski tenders instructions No. 1 to 49.

THE COURT: Defendant Paula Marie Baniszewski tenders her tendered instructions No. 1 to 49, as follows, H.I. Defendants John Stephan Baniszewski and Coy Hubbard tender their tendered instructions No. 1 to 48 as follows, H.I.

MR. BOWMAN: Jointly and severally.

THE COURT: Defendants John Stephan Baniszewski and Coy Hubbard separately and severally tender instructions No. 1 to 48, as follows, H.I. Any others?

MR. NEW: The state has none, Your Honor.

COURT ADJOURNED.

MAY 17, 1966, AND THE TRIAL OF THIS CAUSE WAS RESUMED.

THE COURT: Show everybody here except the jury. Any objections to the court's final instructions?

MR. NEW: None by the State, Your Honor.

THE COURT: Defendant Gertrude Baniszewski?

MR. ERBECKER: Defendant Gertrude Baniszewski objects to the court's instruction No, 39 because it is an incorrect statement of the law. The defendant Gertrude Baniszewski objects and excepts to court's instruction No. 41 because it is not applicable, in that all the defendants are charged as principals and not aiders and abettors. The defendant objects to instruction No. 45 in that it is not a full and complete statement of the law and does not fully explain and set out completely and fully the law with reference to photographs.

THE COURT: What number?

MR. ERBECKER: No. 45, sir. 46, having been amended by the court, there is no objection to that. 47, having been amended by the court, there is no objection to that. Defendant Gertrude Baniszewski objects to court's instruction No. 50 because it is not a full and complete statement of the law. Defendant Gertrude Baniszewski objects to court's instruction No. 58 because it is not a full and complete statement of the law. It is incomplete in that it omits the words sanity and insanity, which is one of the issues with reference to Gertrude Baniszewski. Defendant Gertrude Baniszewski reverses herself and now objects to the court's instruction No. 47 in that it over emphasizes the plea of insanity and emphasizes detrimentally the plea of insanity and is prejudicial to the defendant in that it casts aspersions on the plea of insanity.

THE COURT: Show each and every objection overruled. Does Paula Marie Baniszewski have any objections to the court's final instructions?

MR. RICE: Defendant Paula Marie Baniszewski finds nothing objectionable to the instructions.

THE COURT: Defendant Coy Hubbard and John Stephan Baniszewski?

MR. BOWMAN: The defendants John Stephan Baniszewski and Coy Hubbard separately and severally renew their objections previously made on the record to the court's preliminary tendered instructions No. 1, 2 and 23, which the court previously gave as preliminary instructions and which the court has indicated will be reread to the jury and the defendants state, as their reasons for their objections, all of those reasons made a part of the record at the time the objections were previously made to the court's preliminary instructions No. 1, 2, and 23.

THE COURT: Show overruled, on all three objections.

MR. BOWMAN: The defendants Coy Hubbard and John Stephan Baniszewski separately and severally object to the court's tendered instructions No. 41, which the court has indicated it will give to the jury, for the reason that said instruction contains the text of a statute of the State of Indiana which violates the federal constitution. The statute and the instruction containing it permits a person charged as a principal to be convicted on evidence showing them to be no more than accessories, and for that reason violates the defendants' rights under the 5th and 14th amendments to the Constitution of the United States and specifically the due process of law provisions that guarantee them the right to know the nature of the charges against them.

THE COURT: Objection overruled. Next one.

MR. BOWMAN: The defendants, Coy Hubbard and John Stephan Baniszewski, separately and severally object to the court's tendered instruction No. 42, which the court has indicated it will give to the jury, for the reason that said instruction informs the jury that they are the exclusive judges of the question of the law and refers to that proposition, as stated elsewhere, which reference would be to the court's preliminary instruction No. 1 and 2, previously objected to by these defendants.

THE COURT: Overruled.

MR. BOWMAN: I am not through. This instruction, insofar as it instructs the jury they are exclusively entitled to determine the question of law, violates the defendants' constitutional rights as guaranteed by the constitution of United States and specifically the 5th and 14th amendments and the due process of law provision therein for the reason it permits the jury to disregard the instructions of the court to ignore those instructions of the court that inform the jury of the federally protected rights of the defendants, and permits the jury to find the law to be less favorable to the defendants than the law in fact is, find the law to be less favorable to the defendants than it is, as enacted by the legislature.

THE COURT: Overruled.

MR. BOWMAN: That is all.

THE COURT: Does the defendant Richard Hobbs have any objection to the court's instructions?

MR. NEDEFF: No, Your Honor, no objections.

THE COURT: Alright, now have we covered everybody? Let's go with Gertrude Baniszewski's tendered instructions, No. 1 to 193, inclusive, as follow, H.I. In accordance with 210 Northeastern 2nd, 845, 847 - being one hundred and ninety three tendered instructions that is the Bingo case. The court gives the parties an opportunity to object to them under that Bingo case, if you know what it is.

MR. NEW: The State does make that objection, Your Honor, and specifically cites the case and points out it is impossible for attorneys, at the close of a case of this kind to adequately andcarefully examine the tendered instructions. We therefore object on that authority.

THE COURT: With reference to the instructions tendered by Paula Marie Baniszewski, numbered 1 to 49 - I call it the Bingo case. Does the state have any objection?

MR. NEW: The State makes the same objection, Your Honor.

THE COURT: With reference to the tendered instruction of John Stephan Baniszewski and Coy Hubbard, numbered 1 to 48, inclusive.

MR. NEW: The State makes the same objection.

THE COURT: With reference to the tendered instructions, the court, still keeping in mind the objection of the state, will give No. 124 of the tendered instructions of defendant Gertrude Baniszewski; No. 169 of the tendered instructions of defendant Gertrude Baniszewski; No. 183, with modifications, of the tendered instructions of the defendant Gertrude Baniszewski; No. 168 of the tendered instructions of the defendant Gertrude, the court will give; the court will give No. 31, as modified, of the tendered instructions of defendant Gertrude Baniszewski; the court will give No. 29 of the tendered instructions of the defendant Gertrude Baniszewski; the court will give No. 112 of the tendered instructions of the defendant Gertrude Baniszewski; the court will give 128 of the tendered instructions of the defendant Gertrude Baniszewski; the court will give No. 52 of the tendered instructions of the defendant Gertrude Baniszewski; the court will give No. 20 of the tendered instructions of the defendant Gertrude Baniszewski; the court will give No. 21 of the tendered instructions of the defendant Gertrude Baniszewski. The court also indicates to the parties that the court will give No. 40 of the tendered instructions of the defendants John Stephan Baniszewski and Coy Hubbard that the court will give No. 48 of the tendered Instructions of the said two defendants? The court will give No. 4 of the tendered instructions of the said two defendants and will refuse to give the rest. The court will further inform the parties the court will give No. 31 of the tendered instructions of the defendant Paula Marie Baniszewski, as modified! the court will give No. 36 of the tendered instructions of the defendant Paula Marie Baniszewski, as modified, and they are numbered in halves, eighths, quarters, and 3/16 so they will have sequence. Please don't lose the sequence. We will be in recess for five or ten minutes. I will make a record as to your other objections.

RECESS.

THE COURT: You have seen those I am going to give.

MR. NEW: The State does not have any objection, Your Honor.

THE COURT: Defendant Gertrude Baniszewski?

MR. ERBECKER: No, Your Honor, other than those noted.

THE COURT: Defendant Paula Marie Baniszewski?

MR. RICE: We have none.

THE COURT: Defendant John Stephan Baniszewski and Coy Hubbard?

MR. BOWMAN: None other than those dictated to the reporter.

THE COURT: Defendant Richard Hobbs?

MR. NEDEFF: None at all, Your Honor.

THE COURT: As we said yesterday, the court will reread to the jury the instructions given to them when the jury was sworn. I have changed the grammar of one or two to make it past tense instead of future or present, whichever the case might be. Court will not reread to the jury the last instruction No. 34 of the preliminary, which makes no sense, is it agreed?

MR. NEW: Agreed.

MR. BOWMAN: Yes.

THE COURT: Gentlemen, these are the verdict forms which I intend to show to the jury and the indictment, so let's take a few minutes to look at them. On the ruling as to 210 Northeast, 2nd, page 845-847, court will sustain the state's objection, based on that case, to the applicable matters there other than those selected and given by the court, basing it on the proposition the state could not have ample time to read and examine,so on. The court will take the responsibility on it's own because I did take ample time to study them over the night to show that the tendered instructions, given by the various parties, as tendered, are refused because I did not think they were the law or did not state the law completely, and because the court thought they were covered in other instructions. Show state's objection, based on 210 Northeast, 2nd, page 845 at page 847 sustained in part and overruled in part, as stated by the court.

MR. BOWMAN: You are not going to send John Baniszewski's special answer with the rest of the pleadings?

THE COURT: The Affidavit of Age? I think it is a preliminary matter and preliminary matters are not to be given to the jury. I don't think an Affidavit of Age is a matter that should go to the jury.

MR. BOWMAN: The defendant John Stephan Baniszewski filed a written plea in this cause and I do request -

THE COURT: What does the plea say?

MR. BOWMAN: Omitting the caption and formal parts, it is entitled "Special Verified Pleading" - "Comes now John Stephan Baniszewski and being duly sworn, on his oath alleges and says he is not guilty. 2. He is twelve years of age", and I do state for the record we request that plea go with the indictment and special written plea of Gertrude Baniszewski and the state's reply.

MR. RICE: May I inquire of the court whether or not the order just submitted to us is mandatory? May I inquire whether the material that is going to be taken by the jury into deliberation - is that order mandatory, proceeding in the manner it is fastened by clip?

THE COURT: You mean as to the way they are put together?

MR. RICE: Yes.

THE COURT: I think that is the proper way, don't you? Gertrude first and Paula Marie next?

MR. RICE: I don't mean with regard to the findings possible to the jury.

THE COURT: You are talking in circles.

MR. RICE: If I am talking in circles, I will try to straighten it out. The papers which were presented here indicate certain possibility of findings, Murder in the First Degree. All the way down to not guilty. My inquiry is it mandatory when the papers are placed in the hand of the jury for their ultimate use in returning a verdict, is it required it be given to the jury in the present order, the sequence they are not in, given to the attorneys at this bench?

THE COURT: Mix them up yourself. If that is what you meant, sure, you mix them up the way you want. Don't tear them up. Let's have all them. You want the "Not Guilty" on top?

MR. RICE: Yes.

THE COURT: On the theory, Mr. Bowman, that you cannot do anything indirectly you can't do directly, I do not intend to give the affidavit of age and the written plea of not guilty to the jury as part of the pleadings in this case. Show an objection by Mr. Bowman and exception to the ruling of the court, because the preliminary instructions say that the defendant John Stephan Baniszewski has pleaded not guilty. The verdict forms, along with the indictment and the Plea of Five Paragraphs of the defendant Gertrude Baniszewski, and the state's reply, will be given to the jury when they retire to deliberate. Are you ready for the jury?

MR. RICE: Ready.

MR. NEW: The State is ready, Your Honor.

THE COURT: Bring in the jury.

JURY PRESENT AND SEATED.

THE STATE AND DEFENDANTS MADE CLOSING ARGUMENTS TO JURY.

COURT READS INSTRUCTIONS TO THE JURY.

JURY IS EXCUSED AND DELIBERATES.

COURT ADJOURNED.

MAY 19, 1966, THE JURY RETURNS THE VERDICTS.

DEFENDANT GERTRUDE BANISZEWSKI IS GUILTY OF FIRST-DEGREE MURDER.
SENTENCE - LIFE IMPRISONMENT.

DEFENDANT PAULA MARIE BANISZEWSKI IS GUILTY OF SECOND-DEGREE MURDER
SENTENCE - LIFE IMPRISONMENT.

DEFENDANT STEPHANIE KAY BANISZEWSKI - NO VERDICT RETURNED.

DEFENDANT JOHN STEPHAN BANISZEWSKI IS GUILTY OF MANSLAUGHTER
SENTENCE - TWO TO TWENTY-ONE YEARS.

DEFENDANT COY HUBBARD IS GUILTY OF MANSLAUGHTER
SENTENCE - TWO TO TWENTY-ONE YEARS.

DEFENDANT RICHARD DEAN HOBBS IS GUILTY OF MANSLAUGHTER
SENTENCE - TWO TO TWENTY-ONE YEARS.
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