Opening of the Trial

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Opening of the Trial

Postby admin » October 31st, 2010, 7:22 pm

STATE OF INDIANA
COUNTY OF MARION

IN THE CRIMINAL COURT OF MARION COUNTY
DIVISION TWO
BEFORE THE HON. SAUL I. RABB, JUDGE
APRIL 18, 1966

STATE OF INDIANA
VS
GERTRUDE BANISZEWSKI
Alias GERTRUDE WRIGHT
JOHN STEPHAN BANISZEWSKI
PAULA BANISZEWSKI
STEPHANIE BANISZEWSKI
RICHARD HOBBS
COY HUBBARD

CAUSE NO. Cr. 65-1406

BE IT REMEMBERED, That on the 18th day of April, 1966, same being the Ninety-first Judicial Day of the January Term, 1966, of the Criminal Court of Marion County, State of Indiana, Division Two, the following proceedings were held in the above entitled cause, before the Honorable Saul I. Rabb, Judge of said Court, to-wit:[/Tab]

The cause being at issue, the same came on for trial by Jury before Judge Saul I. Rabb, Noble Pearcy, Prosecuting Attorney, and LeRoy New and Marjorie Wessner, Deputy Prosecuting Attorneys, appearing as counsel for the State; and William Erbecker, appearing as counsel for the defendant, Gertrude Baniszewski, alias Gertrude Wright; Forrest Bowman appearing as counsel for the defendants, John Stephan Baniszewski and Coy Hubbard; George Rice for defendant, Paula Marie Baniszewski; and James Nedeff, Public Defender, appearing as counsel for defendant Richard Hobbs.

AND BE IT REMEMBERED, That before the trial was begun, for the purpose of facilitating and expediting the trial of said cause, the said Judge Saul I. Rabb required to be present, Ruth Plummer, the Official Reporter of said Court, to take down in stenotypy the oral evidence including both questions and answers, and note all rulings of the judge in respect to the admission and rejection of evidence and the documentary evidence, if any, offered and introduced on the trial of said cause, the said Ruth Plummer having been, at the time of her appointment, duly sworn to perform faithfully her duties as such Official Reporter, which said appointment and her official oath as such Reporter are of and among the records of said Court.

AND BE IT FURTHER REMEMBERED, That the said Official Reporter was present and took down in stenotypy the oral and documentary evidence given upon the trial of said cause, including both questions and answers, and noted all of the objections made to the admission and rejection of evidence, and a transcript having been requested by the defendant, Gertrude Baniszewski, alias Gertrude Wright, of the evidence, objections and rulings of the Court thereon, including any and all documentary evidence, if any, and a typewritten manuscript of the same is being made by said Official Reporter, which typewritten transcript is in the words and figures following, to-wit:

THAT IS TO SAY:

THE JURY WAS DULY IMPANELED AND SWORN AND ADMONISHED AND EXCUSED.

THE COURT: Now, Gentlemen, we are going to have to settle preliminary instructions. You may be seated. I imagine that will take perhaps some length of time. They are all stock, I think. What shall I tell the regular panel, that they go for the evening and start tomorrow morning or keep on going as far as we can today?

MR. RICE: May it please the Court, I would like to see a recess declared, or an adjournment, till morning to take care of what business we must.

THE COURT: Call in the jury and alternate jurors. May they separate, Gentlemen?

MR. NEDEFF: The defendant, Richard Hobbs, has no objection to this jury scattering.

MR. RICE: No objection from Paula Marie Baniszewski.

THE COURT: I take it the jury may separate at least for tonight?

MR. ERBECKER: We have no objection. Gertrude Baniszewski has no objection to the jury separating tonight.

THE COURT: Mr. Rice?

MR. RICE: My client has no objection.

MR. BOWMAN: We are agreeable.

THE COURT: State?

MR. NEW: The State has no objection to the jury separating.

THE COURT: Can I say consent?

MR. NEW: Yes, we consent.

THE COURT: Bring in the jurors.

JURY PRESENT AND SEATED.

THE COURT: Ladies and Gentlemen of the Jury and Alternate Jurors, by agreement of counsel and with consent, of the State and defendants, given in open court, the jury is permitted to separate. By that, I mean you can go about your business and return to the courtroom jury room at 9:30 tomorrow morning. During this adjournment, please don't talk among yourselves and don't let anyone else talk to you about this case or any subject connected therewith. Do not form or express any opinion thereon until the case is finally submitted to you. Do not read any newspaper articles that may appear about the case and don't watch anything or listen to anything that may be broadcast about the case. The jury and alternate jurors are excused till 9:30 tomorrow morning.

JURY EXCUSED.

THE COURT: Alright, Mrs. Bailiff, please give me a second to pass these instructions to The Court's preliminary instructions to the State of Indiana, and while I am excusing these jurors the Court is in recess. By that I mean I want you round, I want you available, but if you want to step out, it is not necessary for you folks to be here while I am excusing these folks. I want you available for these instructions, the defendants as well.

RECESS.

THE COURT: Has the State of Indiana had ample and reasonable time to see the instructions and examine same before either party has stated it's case, Mr. New?

MR. NEW: We have, Your Honor.

THE COURT: Do you have any objections?

MR. NEW: The State has no objections.

THE COURT: Do you have any to tender?

MR. NEW: The State has no preliminary instructions to tender.

THE COURT: Does the defendant Gertrude Baniszewski have any objections to the Court's instructions, preliminary instructions numbered 1 to 34 inclusive?

MR. ERBECKER: She has none. I perused them, examined them and checked them and we have none. We wish to tender none either.

THE COURT: Next, Paula Marie Baniszewski?

MR. RICE: May it please the Court, I have read them carefully on behalf of Paula Marie Baniszewski. I find no fault with them and have no desire to tender additional preliminary instructions.

THE COURT: Does the defendant John Stephan Baniszewski have any objection to the Court's instructions?

MR. BOWMAN: Yes, Your Honor, and before stating those I would like to tender a preliminary instruction in behalf of John Stephan Baniszewski.

THE COURT: Defendant John Baniszewski tendered preliminary instruction No. 1 and asks the Court to give same as follows: H.I. Do you want to be heard on this, Mr. New?

MR. NEW: Not necessarily, Your Honor. It is not a correct statement of law.

THE COURT: The court now indicates to defendant John Stephan Baniszewski - show all defendants in Court and the lawyers in Court and LeRoy New here for the State of Indiana. The Court now refuses to give tendered preliminary instruction No. 1.

MR. BOWMAN: Defendant John Stephan Baniszewski, now prior to the giving of any instructions by the Court, and after the jury in this cause has been sworn, objects to the Court's tendered preliminary instructions, No. 1 for each of the following reasons, the said instruction violates the defendant's right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States. The said instruction, by stating that the jurors are the exclusive judges of the law, violates the defendant's right to due process of law, as guaranteed by the Fifth and Fourteenth amendments to the Constitution of the United States. The Court's said instruction instructs the jury that the instructions of the Court are advisory only and that the jury may disregard them entirely and for this reason it violates the defendant's right to due process of law, as guaranteed by the Fifth and Fourteenth amendments to the Constitution of the United States. The Court's said instruction No. 1, in essence informs the jury that they may determine the law to be other than as it is stated to be in the instructions given them by the Court and for this reason said instruction violates the defendant's right to due process of law as guaranteed by the Fifth and Fourteenth amendments to the Constitution of the United States. The instruction No. 1 violates the defendant's rights to due process of law as guaranteed by the Fifth and Fourteenth amendments to the Constitution of the United States in that it subjects the defendant to a trial without any ascertainable legal standards. The Instruction No. 1 of the Court violates the defendant's rights guaranteed by amendments One through Fourteen to the Constitution of the United States in that in essence it tells the jury that they may disregard such instructions of the Court that contain instructions with respect to the aforesaid federally protected rights of the defendant. The defendant John Stephan Baniszewski objects to the Court's tendered preliminary Instruction No. 2 for each of the reasons just assigned in objecting to Court's preliminary tendered Instruction No. 1.

THE COURT: Do you want to do that for both defendants and save time?

MR. BOWMAN: I would like to state on the record - do I have your agreement, Mr. New, to state on the record that each of the objections made to any of the Court's preliminary tendered instructions are made on behalf of the defendant Coy Hubbard as well as the defendant John Stephan Baniszewski?

MR. NEW: I am not objecting. I just don't agree. Go ahead. I don't mean I have any objection any way to what you are doing.

THE COURT: He wants to save his record. He is making the same objection for each defendant, separately and severally. Let the record show defendants, John Stephan Baniszewski and Coy Hubbard separately and severally object to the Court's tendered preliminary instructions for the reasons assigned.

MR. BOWMAN: The defendants John Stephan Baniszewski and Coy Hubbard separately and severally object also to Court's tendered preliminary instruction No. 23 for each of the following reasons. On Line 5 of said instructions, said instruction states that the word "malice" is used and intended to denote an action and this is an incorrect statement of the law for the reason that the word "malice" is used and intended to denote an intent. At Line 9 and 10 of said instruction the instruction states that malice may be implied from any deliberate and cruel act against another, however sudden. This is an improper statement of the law for the reason that malice may only be implied from an unlawful, deliberate, and cruel act against another.

THE COURT: Defendants objection to Court's tendered instruction - preliminary tendered instruction No. 1 and 2 overruled. Objection to Court's preliminary Instruction No. 23, overruled. Now, anything further?

MR. NEDEFF: The defendant Richard Hobbs at this time joins in the objection. Is that overruled too?

THE COURT: Well, I don't know if it is going to be overruled too. Do you have any citation to help you at this time?

THE COURT: Right now, overruled. We will recess now until 9:30 tomorrow morning. Court will give these instructions. Mr. Erbecker has an unresolved Motion to Suppress Evidence. That calls for a hearing. I have not ruled on that. We will hear that tomorrow morning in the absence of the jury. Let's say we will reconvene at 9:00 A.M. and do that then because we told the jury to come in at 9:30.

MR. BOWMAN: My two defendants I don't want here on the Hearing to Suppress. They did not join in the Motion.

THE COURT: As I learned, defendants are entitled and should be at every stage of the proceedings and there is some question whether or not argument on a Motion is a stage of proceedings. Let's say everybody be here at 9:00 A.M.

MR. BOWMAN: My defendants object to being here during Mr. Erbecker's Motion to Suppress.

THE COURT: Objection overruled. He may say something. Court will recess till tomorrow morning at 9:00 at which time we will proceed on the Motion to Suppress Evidence, filed by defendant Gertrude Baniszewski. All defendants are ordered, with counsel, to be here tomorrow morning 9:00 A.M.

RECESS.

APRIL 27, 1966, AND THE TRIAL OF THIS CAUSE WAS RESUMED.

THE COURT: Is it alright to proceed without Miss Wessner, Mr. New?

MR. NEW: It is, Your Honor.

THE COURT: We are all here. The hearing scheduled for 9:00 o'clock this morning, on the Motion to Suppress Evidence, at the request of Mr. Erbecker who made the motion, the matter is continued till 1:45 today, is that what you want, Mr. Erbecker?

MR. ERBECKER: Yes, we request it at 1:45.

THE COURT: Are you ready for the jury?

MR. BOWMAN: No, Your Honor, at this time in behalf of these two defendants, Coy Hubbard and John Stephan Baniszewski, I want again to repeat the objection I made when we started this proceedings over a week ago, that has consumed the last seven days in Voir Dire examination. The jury has now been sworn and we are apparently ready to proceed with the trial and I find myself still seated at the same counsel table with three attorneys, representing three co-defendants. This court has been notified for some considerable time that counsel considers the interest of these parties adverse. I am seated here within sight and hearing of those other three counsel. My clients are seated behind me. Any conversation I would have with them would be within hearing of the other three defendants and their counsel. Throughout Voir Dire examination it was apparent to me that communication could not be had with these defendants without being overheard. I was able to overhear bits and pieces of conversation the other defense attorneys had with their clients and were able to observe from time to time their notes. This is quite important because we are all ready to proceed to trial.

THE COURT: Bring in the regular panel.

JURY PRESENT AND SEATED.

COURT INSTRUCTS JURY.

THE COURT: The State will now make it's opening statement to the jury, Mr. New.

MR. NEW MADE OPENING STATEMENT TO THE JURY.

MR. ERBECKER MADE OPENING STATEMENT FOR GERTRUDE BANISZEWSKI.

MR. RICE WAIVED OPENING STATEMENT ON BEHALF OF PAULA MARIE BANISZEWSKI.

MR. BOWMAN WAIVED OPENING STATEMENT ON BEHALF OF JOHN STEPHAN BANISZEWSKI AND COY HUBBARD.

MR. NEDEFF MADE OPENING STATEMENT ON BEHALF OF RICHARD DEAN HOBBS.

MR. ERBECKER: At this time defendant Gertrude Baniszewski respectfully moves the Court for separation of defendants because of the facilities here for conducting defense and for separation of witnesses.

THE COURT: Defendant moves for separation of defendants and witnesses. Granted as to witnesses. All witnesses who are now in the courtroom stand and hold up your right hands please.

WITNESSES SWORN BY THE COURT.

THE COURT: There has been a motion for separation of witnesses on behalf of the defendant. Motion has been made on behalf of defendant Gertrude Baniszewski, which has been granted. Defendants will stay in the courtroom. The State of Indiana may elect to keep one witness.

MR. NEW: Will the record show, Jenny Likens?

THE COURT: The State will keep Jenny Likens. She will remain. All other witnesses right now will please go into the adjoining room. You will be in charge of a bailiff. You will be separated from the others. When court reconvenes we will find a more convenient place for you. During this separation and during the trial, the entire trial till it is ended, you are not to tell one another other what you are going to say when you become a witness and after you have testified, you are not to tell one another what you did say. You are permitted to talk to the attorneys, attorneys for the defendants as well as attorneys for the State of Indiana. That is permissible. The witnesses then will please leave. Find a place for them out there. Ladies and Gentlemen of the Jury and Alternate Jurors, since there is a matter that has to be done in your absence, I am going to recess the jury and alternate jurors for lunch. May the jury separate?

MR. NEW: The State consents to separation.

THE COURT: Defendants?

MR. RICE: Yes.

MR. BOWMAN: Yes.

MR. ERBECKER: Defendant Gertrude Baniszewski has no objection to a separation.

THE COURT: May I show consent from all defendants?

MR. NEDEFF: Richard Hobbs has no objection the the jury separating.

MR. BOWMAN: These two have no objection.

THE COURT: By agreement of counsel and with consent of State and defendants made in open court, the jury is permitted to separate. There will be a recess now for lunch. The bailiff will take you to lunch, if you care to go with her. If you don't care to go with her, that is your business. However, you will return to the jury room so we can start court at 2:00 o'clock today. You may think this is an unreasonable recess. There are matters that have to be done in your absence. You come back at 2:00 o'clock. Do not hold the recesses against anyone, please. Recesses are necessary. If anybody has to be blamed, blame Judge Rabb. Remember what I told you and let me repeat, don't talk among yourselves and don't let anyone talk to you about this case of any subject connected therewith. Don't form or express any opinion on the case till it is finally submitted to you. Do not read any newspaper articles that may appear about this case and don't watch anything or listen to anything that may be broadcast about the case. I want the entire court to remain as you are till the jury leaves the courtroom.

JURY EXCUSED.

THE COURT: Miss Secretary, call the building and see if we can get another table placed perhaps along the side of defense counsel table so there will be a little more separation among them if that is the way it should be. During the noon recess, see if the tables can be set up so there can be a little more separation. That is the extent I can go. Again, all spectators, I don't want you getting near the jurors or talking loud enough for the jurors to hear. We are conducting a trial and this is an important case and I don't want any errors made because of what the spectators might do.

RECESS.

1:45 P.M. AND THE TRIAL OF THIS CAUSE WAS RESUMED.

THE COURT: Can I move the spectators way back so you won't be crowding the jury, please. The jury is not in the courtroom. The parties are all here, with their lawyers. You may proceed, Mr. Erbecker, on your Motion to Suppress Evidence, in the absence of the jury.

MR. BOWMAN: Your Honor, prior to Mr. Erbecker proceeding, I want the Court to understand and I do point out to the Court - these two defendants, John Baniszewski and Coy Hubbard, do not join in the Motion to Suppress Evidence. We are here unwillingly.

THE COURT: This only goes, if the motion is sustained, only as to the defendant asking for it.

MR. BOWMAN: I want the record to show clearly we are not joining in or participating in this voluntarily. We are not moving parties.

THE COURT: I don't think you signed it, did you?

MR. BOWMAN: No, sir.

THE COURT: In behalf of defendant Gertrude Baniszewski, hearing on Verified Motion to Suppress and Reject Evidence.

MR. ERBECKER: The three police officers I would like to have separated.

THE COURT: They are always separated. They are separated now.

MR. ERBECKER: Melvin Dixon.

THE COURT: Were you sworn this morning?

WITNESS: Yes, sir.

THE COURT: This is on a Motion to Suppress Evidence. Be sure the record shows the jury and alternate jurors are not here and not within hearing of these proceedings.
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