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THE JOHNSON

COUNTY
MURDERS
THE TRUE STORY OF AN INDIANA TRIAL
FOR TRIPLE MURDER
INCLUDING BONUS AUTHORS AUTOBIOGRAPHY

John R Berger
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THE JOHNSON
COUNTY MURDERS
THE TRUE STORY OF AN INDIANA TRIAL FOR TRIPLE MURDER
INCLUDING BONUS AUTHORS AUTOBIOGRAPHY

John R Berger

THE AUTHOR: The author is a graduate of Hillsdale College and Harvard Law School. He is
a retired judge of the Steuben Circuit Court and Professor Emeritus of Law at Tri-State
University. The Johnson County Murders and the authors autobiography, The Bubbles Rise, a
sentimental journey told with humor and poignancy, are both available in paperback at Amazon.

Copyright 2015 by John R. Berger, jrb11129@yahoo.com


All rights reserved. This book or any parts thereof may not be reproduced in any form without
written permission of the author.
Published 2015 by Lake James Press
20 Lane 200H Lake James
Angola, Indiana 46703

STATE OF INDIANA
SUPREME COURT

RANDALL T. SHEPARD, CHIEF JUSTICE

304 STATE HOUSE


INDIANAPOLIS 46204-2798

March 9, 2010

Hon. John R. Berger


20 LN 200H LK James
Angola, Indiana 46703
Dear Judge Berger:
Thanks so much for sending along a copy of your book The Johnson County Murders,
which I have enjoyed. It is a gripping tale.
When I am done, I plan to place the book in the permanent collection of the Supreme Court
Library, so that others will have an opportunity to read it.
Congratulations on the enormous effort the book represents (and, of course, on your work
decades ago in the events it recounts).
Thank you for your many contributions to the Indiana bench and bar.
Sincerely,
Randy Shepard
Randall T. Shepard
Chief Justice of Indiana

In memory of Susanna Ellen

Authors Note
The facts set forth in these materials are based upon actual facts. They are taken from trial
documents, the official trial transcript, interviews with the persons directly concerned including
investigating officers, jurors and attorneys, research and my memory.

I have simplified or

modified some of the materials but the basic facts are accurate. I have changed the names of the
victims, and some non police witnesses to provide privacy.

This is the tragic story of William, Elizabeth Ann and Jenny Harold who were brutally
murdered in the early morning of January 20, 1974, and of the trial of the accused, David James
Roberts. Interwoven are important legal and constitutional issues.

This is also my story as a young man, student, lawyer and judge. I was the judge for the
Roberts trial and it was the first murder trial involving the death penalty over which I presided.

I have included Notes at the end of the book which set forth additional or tangential facts
which the reader may find interesting and informative.

Follow the criminal proceedings, read the trial evidence as it unfolds, assume you were on the
jury, and decide the guilt or innocence of David James Roberts. Will you agree with the jury
decision?
John R. Berger
Angola, Indiana
January 1, 2015

STEUBEN COUNTY COURTHOUSE AND CIVIL WAR MONUMENT


Angola, Indiana

JOHN R. BERGER
Judge, Steuben Circuit Court
January 1, 1971

Whoever intentionally takes the life of another


with malice aforethought shall be guilty of the
crime of murder.
The definition of murder under English
common law.

PROLOGUE
New Whiteland, Indiana

It was about 4:30 a.m. on a cold and dark Sunday morning, January 20, 1974, in New
Whiteland, a small middle class white residential community located in Johnson County fourteen
miles south of Indianapolis, Indiana, when a passing car noticed smoke arising from the small
suburban ranch home of William and Elizabeth Ann Harold located on 915 Pine Drive. Within
five minutes the local volunteer fire department had arrived.

Upon entering the front door, the firefighters were met by a surge of fire coming from the
middle section of the house. The house was fairly airtight and therefore the fire had not spread
to the front and was mostly contained to a small den or TV room in the middle of the house. In
ten minutes the fire was brought under control and extinguished.

When the firefighters first arrived they observed through a back bedroom window a baby bed.
They broke the window, entered the bedroom and found the Harolds one year old daughter,
Jenny, in her small bed still alive but unconscious. She died on the way to the hospital from
smoke inhalation. Her first birthday was three days before.

The firefighters then searched the rest of the house. In the small den the burned bodies of
William and Elizabeth Ann were found. They were 25 and 23 years of age.

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Fortunately, their four year old daughter, Marie, was spending the night with her uncle.
The Investigation
The state fire marshals office, state and local police thoroughly examined the Harold home
for evidence as to the cause of the fire and the perpetrator of the crimes.
There was no evidence of forced entry. The front door was open when firefighters and police
arrived. It was determined that the fire was caused by gasoline igniting. A red five gallon gas
can was found in the den.
No evidence, other than the red gas can, was found at the house to indicate who committed
these crimes.
Harold family members described the Harolds as a loving young couple who had been high
school sweethearts. They were married shortly after graduation from high school. They were
wonderful parents. They had two daughters, Jenny and Marie.
The neighborhood was canvassed by the police and forty-one neighbors were interviewed.
No one had seen any visitors, salesmen or delivery persons in the afternoon or evening of the
murders.
Investigators canvassed all service stations within the New Whiteland and Indianapolis areas
to determine if possible the source of the red five gallon gas can.
Investigators determined from several witnesses that on the late afternoon prior to the murders
at about 5:30 p.m. at a gas station at the corner of 16th and Meridian Streets in Indianapolis a
black male in his late 20s, driving a 1970 tan or gold Buick Riviera, borrowed a five gallon red
gas can with $5 DEPOSIT ON THIS CAN in yellow crayon on the side and had it filled with
gasoline. One of the black employees stated to the investigator that he was the one who had sold
the gas and delivered the gas can. It was the same gas can found at the scene of the murders.

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After further thorough investigation, preliminary murder charges were filed and an arrest
warrant issued for David James Roberts. Roberts was arrested and held without bail.

David James Roberts

When arrested Roberts lived in Indianapolis. He was African-American. He was 30 years


old, 63 tall, 195 lbs., had a light brown complexion, black hair, brown eyes, mustache and
slight afro haircut. He had a tattoo Carlos. He appeared to be well educated and was very
articulate. He was attractive in appearance.

David James Roberts was born in Englewood, New Jersey, on January 25, 1944, and lived
there for four years. His parents were African-American.
He had three brothers and three sisters ages 19-37. He had a deceased father and sister. His
mother, sisters and brothers all lived in the Chicago, Illinois, area.
He attended grade school in Boston, Massachusetts and in New York State and attended high
school in St. Paul, Minnesota. He did not have any attendance problems and got along well with
his teachers.
He moved to the Chicago area in 1960. His father was self employed in the trucking business
transporting frozen foods. He owned trucks and heavy equipment. He was very successful in
this business until in the early 1950s when he developed diabetes and was unable to drive a truck
or heavy equipment. Roberts worked with his father in Chicago until his father died in 1965 and
the business was dissolved.

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Roberts later moved to Indianapolis and attended Indiana-Purdue University in Indianapolis


for three years. He enjoyed his college courses and received good grades.
In 1972 Roberts married Maryanne Duly. They had one child, Christopher, age 2. Roberts
classified his marriage as a good one.
Roberts had worked in a steel mill and as a quality control inspector for Detroit Diesel in
Indianapolis. He had speaking engagements at educational institutions in regard to penal reform.
Roberts enjoyed fishing and reading all types of books, especially law and literature.
Roberts was born a Catholic and has attended church in the past. He stated that he believed in
God.

Later the Johnson County Grand Jury issued Indictments for murder and arson against
Roberts. He was formally arrested again and after several preliminary hearings before the judge
of the Johnson Circuit Court, the case of State of Indiana v. David James Roberts was transferred
for trial to the Steuben Circuit Court, Angola, Steuben County, Indiana. I was the Circuit Court
judge and the case would be tried before me and heard by a Steuben County jury.

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DAVID JAMES ROBERTS

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PART ONE

STEUBEN COUNTY AND THE


CIRCUIT COURT

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1
Steuben County, Indiana
September 29, 1974

Steuben County is located in the far northeastern corner of Indiana. The history of Indiana 1
and its settlement were important ingredients in the selection of Steuben County as the Roberts
trial venue.
Indiana was first settled in the southern part of the state by people of southern origin using
water routes, primarily the Ohio River. They came from Virginia, Kentucky, North Carolina,
Tennessee and Maryland. They brought with them their southern white heritage and opinions
concerning African-Americans.

By 1850 most settlers lived in the south half of Indiana.

Beginning in about 1830, settlers from Ohio, Pennsylvania, New York and other northeastern
states began to immigrate into the northeastern part of Indiana including Steuben County. Their
heritage was northern with little prior contact with African-Americans. In the first quarter of the
1800s there were few settlers in the northern part and many Miami Indians. The Miami by treaty
were removed to the Kansas Territory by 1846.

The first permanent settler in Steuben County was Gideon Langdon who built his log cabin in
Jackson Township in 1831. Shortly thereafter other settlers began coming to Steuben County,
primarily as part of the western migration of English Protestants from eastern states and New
England.

Early settlements included Jackson Prairie, Vermont Settlement and Nipcondish

(Pleasant Lake). Steuben County was created in 1837 and named for Baron Frederick von
Steuben, a Continental officer in the Revolutionary War.

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At the time of the trial, Steuben County had a population of about 26,000. There was one
city, Angola2, with a population of about 5,000 and a beautiful 1917 Civil War Memorial
Monument located in a large circle park in the center of the city. The monument is 85 feet tall
and honored the 1,278 soldiers from Steuben County that served in the war of whom 280 never
came home. Angola had no stop lights.
There were also several small towns in Steuben County. The county had a small industrial
and commercial base, a large farm population, a small college, 101 beautiful glacier lakes which
provided many recreational opportunities, and beautiful Pokagon State Park and Potawatomi Inn.
There was only one black family residing in Steuben County. The county had a scenic small
lake called Fox Lake with all African-American summer residents.

They were mostly

professionals from the Toledo area. They were warmly accepted by the community and were
about the only African-Americans with whom Steuben County residents had become acquainted.

From this mix of merchants, a small group of professionals, farmers, blue collar small factory
workers, public school teachers, and college professors and employees a jury would be selected.
As would be expected, the jury as finally selected did not have any African-American members.
Even though there were not any African-Americans in the jury pool, because of the northern
heritage of most Steuben County residents and their limited exposure to African-Americans,
prosecution and defense counsel thought that they could select a jury that was not biased against
African-Americans. Steuben County was a compromise as defense counsel wanted the case
venued to an urban area and the prosecutor would not agree.

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2
Steuben County Courthouse

Shortly after the Civil War, in 1867-1868, Freeborn Patterson designed and built the present
brick courthouse in Angola for Steuben County.
He built it in the style of Faneuil Hall in Boston, a building famous for its role as a meeting
place for patriots during the American Revolution. The court house is distinctive for its arched
windows set in tall sunken panels, for its raking cornice carried by pairs of brackets, and for its
curved wooden staircase. The construction cost was $26,392.00.
The courthouse was built on mostly donated land at the southeast corner of the public circle
and its high cupola can be seen for many miles. The courthouse was enlarged in 1937 by adding
to the south side at a cost of about $31,000.00. The courthouse was two stories high with a rustic
basement. The first floor contained the offices of the County Clerk of Court, County Recorder,
County Assessor and County Treasurer. The basement contained retired files and the Goodale
Abstract Office.
The large circuit courtroom with a high ceiling and large arched windows, the judges
chambers, the court reporters and bailiffs offices, and the probation officers office occupied
the entire second floor. Access was by means of two large beautiful wood staircases, one on
each side of the entrance hall.
Originally there was a balcony overlooking the courtroom which was accessed by a small
rickety winding staircase. The balcony had been closed and walled off for many years and was
used as a storage area for old furniture and miscellaneous retired court files.

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When I was judge there was no courthouse security as there is today. A few years ago
someone in Oklahoma who was involved in a divorce action was not completely pleased with the
judges decision and shot His Honor dead in the courtroom. Immediately every courthouse in
the nation had to have armed security. Not to be left behind, the Steuben County Commissioners
since then have provided funds for two deputy sheriffs Monday through Friday from 7:30 a.m.
until 5 p.m. to man the courthouse door, complete with walk through and hand held wand
sensors.3
A cost comparison analysis would indicate that it would be a lot cheaper to not have security
and lose a judge now and then.

On the wall of a hallway outside the court room hung a photograph of a 1918 all male jury
that had deliberated the fate of Nora Coleman, a woman accused of murdering her mother. Old
records of the case were found which included the Coroners Report and an Affidavit by the
defendants husband.
The Coroners Report stated that the deceased had succumbed to her death from being shot in
the head. It stated the cause of death as follows: I find that the deceased came to her death as
the result of being shot in the head with gun shot charge entering just above right ear and lodging
in the skull. These were the complete findings of cause of death. It is interesting to compare
this report to the detailed many paged coroners reports of modern times. In 1918 they did not
elaborate on the obvious.
The Affidavit of the husband stated, I, Word Coleman, being duly sworn make statement as
follows:

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About 4 oclock a.m., Feb 7, 1918, my wife awoke me at which time she fixed fires and
came to bed.
She said to me that I would not need to be bothered with mother any more for she had took
the gun up there and shot her.
When I asked her why she did it she said so she would not keep harrissing (sic) me.
She gave no other reason.

She was a good wife. She kept the house warm and took care of a bothersome mother-in-law.

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3
The Judge

A trial judges legal training, prior law practice and judicial experience are very important in
formulating a judges thoughts and decisions. However, a judges background, life experiences
including military service and being a husband and father, compassion, courtesy, and an ability
to keep an open mind without bias are vital components in a judges decisions.

I was born to loving parents in Cincinnati, Ohio, on January 11, 1929. I had an older sister
and brother, Peggy and George. I was named John after my father and great grandfather. We
lived in a small house on one of the hills overlooking downtown Cincinnati.4

I attended Sacred Heart Academy for my first year of school. The only remembrance I have
of first grade is standing on the stage for our recital with Sister Marie conducting and proud
parents in attendance. At the appropriate time we all bowed down to avoid hitting our heads on
the bridge as we sang the chorus of Fifteen Miles on the Erie Canal:

Low bridge, evrybody down,


Low bridge cause were com-in to a town,
And youll always know your neighbor,
Youll always know your pal,
If youve ever navigated on the Erie Canal.

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I was the only boy in the class. I wonder if this had any deep psychological effect on my later
life and opinion of women.

I transferred for the rest of grade school to Annunciation Catholic School, a converted church
building with four classrooms near my home. Two grades were in each room presided over by a
stern and loving Franciscan Sister. Father Kelly was the pastor of the adjoining church and each
Monday morning quizzed the faithful children on their knowledge of the Catechism. They had
spent many hours each week memorizing the answers to the questions contained therein. I still
remember the first question and answer: Question: Who made you? Correct answer: God
made me.

In the seventh grade I was introduced by my parents to the adult world. They gave me a copy
of Sane Sex Life and Sane Safe Living. I was told to only read the third chapter and not look at
any of the graphic diagrams or photographs in other chapters! This was the extent of my formal
sex education. I guess I did not read the third chapter very well. When asked by a ninth grader
if I knew what a fishermans dream was, and after I answered No, he replied Two nights on
Veronica Lake. I asked where Veronica Lake was located.

When my daughter was in the sixth grade the world had changed. No longer were parents
responsible for sex education. Our school board, after heated discussions, decided four to three
to require all sixth grade students to have a two hour session (together with a graphic slide
presentation of the male and female reproductive organs and sperm valiantly seeking their goal
like Alaskan salmon in a Kenai stream) to inform the maturing students concerning the

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intricacies of reproduction. Mrs. Belair, a retired second grade teacher, was selected to give the
session because of her known expertise in this area. My wife and daughter attended one of the
first sessions. After the session, upon returning to our home, my wife sat down quietly with our
daughter and asked lovingly if she had any questions. Our daughter replied, Mom, I didnt
understand anything.

Three years of high school then followed at Cincinnati Country Day School, a private school
for boys, grades 1-12. There were twelve students in my junior year class and there were no
seniors. The classes were rigorous and included Latin, French, Spanish, grammar and the
classics.
When I think of grammar, I always remember my dear grandmother Lester from Tuscaloosa,
Alabama, who had a reverence for grammar. She said it was what separated one from the
common folks. She often reminded me that there are four very important things to remember:
Corn is raised and people are reared, Horses sweat and people perspire, Meals are prepared and
animals are fixed, and People become angry and dogs become mad.
I had a normal high school social life with only one caveat. My mother had a southern lady
background and required me, as an aspiring gentleman, to attempt to learn ballroom dancing. I
was duly enrolled in Madame Fedarovas dance classes which met monthly at a grand ballroom
at the Vernon Manor Hotel. There I met the daughters of Cincinnati society, one of whom I am
sure my mother intended me to someday wed. I disappointed her.
I attended law school at an Ivy League school. My first introduction to the Ivy League was at
my brothers bachelors dinner the night before his wedding. I was seventeen, about to enter
college, and a man!

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My brother was twenty three. He had received a medical discharge from the Army after being
wounded near the Arno River in Italy while serving in the U.S. Fifth Army under General Mark
Clark in the second war to end all wars. He was a front line medic when the average life
expectancy of a medic was measured in days. The home front tried to keep their spirits up by
listening to Vaughn Monroe singing When the lights go on again all over the world (Then
well have time for things like wedding rings and free hearts will sing) and Kay Kysers Praise
the Lord and pass the ammunition (and well all stay free).
My brother was about to marry his sweetheart, a delightful young lady from a traditional Yale
family. The dinner was of course at Morys in New Haven, the iconic private membership
Yalie eating club founded in 1849. The dinner was celebrated in the large and very impressive
upper room of Morys. Throughout dinner a very large loving cup filled with champagne was
passed between the revelers and we each took a large sip. There were many toasts. A final toast
was given at the end of the dinner and we all thrust our wine glasses into the burning fireplace
where they shattered in a beautiful array of reflected colors. We then stood, and solemnly bid
good wishes to my brother by singing The Whiffenpoof Song:
To the tables down at Morys,
To the place where Louis dwells,
To the dear old Temple Bar
We love so well,
Sing the Whiffenpoofs assembled
With their glasses raised on high,
And the magic of their singing casts its spell.
We are poor little lambs
Who have lost our way.

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Baa! Baa! Baa!


We are little black sheep
Who have gone astray.
Baa! Baa! Baa!

After my junior year in high school, the WWII draft was still in full swing. I was seventeen.
In order to attend college before being drafted, I enrolled after my junior year in high school at
Hillsdale College, a small liberal arts college in Hillsdale, Michigan, under a wartime early
enrollment program. I was teased later in life for practicing law when I did not even have a high
school diploma.
I majored in physics at Hillsdale and was deferred from the draft and Korea.5
Upon graduation, I received the University of Michigan Horace Rackham Graduate School of
Science scholarship for two years of graduate study in physics. The scholarship was tempting
but prompted by excellent courses in constitutional history and business law at Hillsdale College,
I decided to become a lawyer. I did not accept the scholarship to the great surprise and joy of the
alternate, and to the chagrin of my father who would now have to pay tuition, room and board.
Thus started my legal pursuit.

I applied to only one law school, Harvard Law School.


I was accepted and in early September of 1950, with some trepidation, at the age of twentyone headed east on US Highway 20 in my new bright red 1950 Ford convertible (a graduation
present from my parents) toward Cambridge, Massachusetts, and to the unknown.

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Law school consisted of three years of concentrated studies including the core courses of
criminal law, torts, contracts, property law, domestic relations, commercial transactions, civil
law and procedure, administrative law, constitutional law, taxation and jurisprudence. The 19501951 first year law class consisted of about five hundred students including for the first time
twelve women. Classes were held six days a week. Classes were divided into four sections of
125 students. Each section attended class together in 150 seat stadium type classrooms. This
was a new experience for me as I had twelve students in each class at Cincinnati Country Day
School and usually twenty at Hillsdale College.
While at law school I took a tour of Faneuil Hall located in adjoining Boston, never dreaming
that one day I would be a judge presiding in a courthouse that was an exact replica.
After three years of rigorous study, I was graduated from Harvard Law School with a Doctor
of Jurisprudence degree in 1953.6
During the summer of 1953, I took and passed the two day Indiana bar examination and was
admitted to the Indiana and Federal bar in November of 1953.7
The Korean War was still ongoing in the summer of 1953 and I was drafted into the Army as
a Private at the age of twenty-four.8
Since I had an undergraduate degree in physics and a Doctorate of Law degree, the Army
decided that I should be taught to assemble bridges and would make a perfect Field Engineer. I
was assigned to Fort Leonard Wood, Missouri, for sixteen weeks of basic and advanced
training.9 An armistice had been signed at Panmunjom on July 27, 1953 which effectively ended
the fighting and, after basic, I was assigned as a field radio repair instructor at Fort Monmouth,
New Jersey for the remainder of my two year active duty requirement. The armistice still stands
and, because South Korea never has agreed to the armistice, South Korea and North Korea are

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still technically at war. I am very thankful that, because of the armistice, I was not sent to the
front lines of Korea. After active duty I was required to be in the Ready Army Reserve for six
additional years during which period I was subject to active duty call up upon 24 hour notice. I
was almost called up for service during the Berlin Airlift. I received an Honorable Discharge
from the Army in December, 1961. I am very proud to have served my country.

The Berger family had spent summers at Lake James in Steuben County since 1936 and in
1946 my parents moved permanently to adjoining Jimmerson Lake. After release from Army
active duty I lived with them until my marriage in 1962 to Susanna Ellen Lemley, an attractive
and vivacious Angola first grade teacher. Susanna and I built a home near my parents on
Jimmerson Lake.

Susanna and I have two children, Susan Elizabeth (1966) and John

Christopher (1969).

I decided to start my law career in the small community of Angola rather than in a
metropolitan area. I have never regretted this decision.
In January of 1956, at the age of twenty-six, I joined two local attorneys, Donald Trennepohl,
a graduate of Indiana Law School, and Wilson Shoup, a graduate of Georgetown University Law
School, to form the legal partnership of Trennepohl, Berger & Shoup (we flipped a coin to
determine the name sequence). The partnership continued for 15 years until I was elected judge
of the Steuben Circuit Court.10
My election for judge of the Steuben Circuit Court was hotly contested. Indiana circuit court
judges are elected on a partisan basis with a primary and general election.

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Up until 1970, no doubt by virtue of the traditional egalitarian view, Indiana circuit judges
were not required to be lawyers and admitted to the bar. In 1970, Article VII of the 1851 Indiana
Constitution was amended to provide that all circuit court judges shall have been duly admitted
to practice law by the Supreme Court of Indiana.
I had to first run in the Republican primary against Olin Dygert, a friendly, fatherly and well
respected local Steuben County constitutional lawyer. I won the primary by 87 votes.
In the general election I ran against the incumbent democrat judge, Judge Louis Sisler, who
had been appointed by a democrat governor two years before to fill a vacancy. The vacancy was
created when the Steuben Circuit judge, Roger DeBruler, was appointed to the Indiana Supreme
Court in September of 1968.
Running against the incumbent is never an easy task. Further problems with my campaign
arose because I was perceived by some as an outsider (not having been born in Steuben County)
and because others were not sure that a Harvard graduate would be able to relate to the common
man. I ran a vigorous campaign. I sent out three thousand letters and posted signs on about
every telephone pole in Steuben County. I went to almost every farm house (sometimes a barn
or milking shed) in the county asking for votes. I went to many pot lucks and gave brief
presentations as to my many abilities.

At one potluck in the basement of the R.E.M.C. an

aspiring J. Danforth Quayle, later to be Vice-President, was present and making his pitch to be
elected to Congress. His assistant at the potluck was Dan Coats, later to be a Senator and
Ambassador to Germany
I won by a narrow margin.11 Both Dans went on to worldly challenges and I stayed home to
serve my community. I am reminded of one of my favorite poems, The Vision of Sir Launfal,
by James Russell Lowell:

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The little bird sits at his door in the sun,


Atilt like a blossom among the leaves,
And lets his illuminated being oerrun
With the deluge of summer it receives;
His mate feels the eggs beneath her wings,
And the heart in her dumb breast flutters and sings;
He sings to the wide world, and she to her nest,In the nice ear of Nature, which song is the best?

On January 1, 1971, in the old high ceiling county courtroom, I was sworn in as judge of the
Steuben Circuit Court by the clerk of court before a small group of friends, court personnel and
my loving wife and two small children. The elderly bailiff, Russell Jackson, and court reporter,
Iona Crain, presented me with a beautiful walnut engraved gavel which I cherish to this day.

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4
The Circuit Court

Each of the 92 counties in Indiana is served by a Circuit Court.


Originally, several counties were served by a single judge who presided over the courts of all
counties in the circuit. He would go on circuit and thus the name circuit judge. The first crcuit
court that served Steuben County was established in 1839. Originally Steuben County and
DeKalb County to the south were served by one circuit judge. Then Steuben County and
LaGrange County to the west were served by one circuit judge. This was the situation until
about 1950 when Steuben and LaGrange were separated and each had its own circuit court judge.

When I became judge, the court system in Steuben County consisted of the Steuben Circuit
Court and two lower courts, a Justice of the Peace Court in the Town of Fremont and an Angola
City Court, both of which had jurisdiction limited to traffic violations and small claims. Upon
request by either party, a decision of these courts could be appealed and tried de-novo in the
Steuben Circuit Court.
The circuit court had unlimited general jurisdiction of all matters and was the basic trial court
in Indiana.
There were five divisions of the circuit court consisting of criminal, civil, juvenile, domestic
relations (divorce) and probate (wills, trusts and the administration thereof). All divisions were
interchangeable and administered at the same time by the judge of the Steuben Circuit Court.12
There was only one judge and I was the judge. My court personnel consisted of a Court
Reporter, Iona Crain, who reported all evidence, testimony and court actions by shorthand or on

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an old tape recorder, a Bailiff, Russell Jackson, who acted as a receptionist and was in charge of
the court room and juries, and a Probation Officer who usually was a minister and was part time.
I immediately elevated the probation office to full time and appointed Thomas Hanselman, a
former Steuben County Sheriff, as Probation Officer.
Judgments of the circuit court could be appealed to the Indiana Court of Appeals or in
appropriate matters, to the Indiana Supreme Court. All murder convictions, sentences and
judgments were appealed directly to the Indiana Supreme Court.
Many people think that if an accused is found guilty that he or she can appeal to a higher
court and get a new trial before an appellate court. This concept is wrong. A defendant gets
only one chance to have a trial and that is before the circuit court.
An appellate court cannot substitute its opinion of the facts for that of the jury and trial court.
No new evidence is presented before an appellate court. The appellate court will only review the
evidence presented at the trial court. The appellate court will review whether the trial court
evidence favorable to the State is sufficient to sustain a verdict of guilty and only if it does not,
will it reverse the conviction. Rarely is a verdict reversed on this basis.
The appellate court primarily rules on errors of law that the trial judge may have made.
Examples of errors of law are an improper jury instruction given by the judge, or the judge
allowing improper evidence or testimony over proper objection to be introduced by counsel. The
Appellate Court must find a serious and prejudicial error of law made by the trial judge in order
to reverse a guilty verdict.
Therefore, David James Roberts realistically would get only one chance to defend himself
against the charges brought against him. He would have to seek a not guilty verdict from the
Steuben Circuit Court jury.

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PART TWO

THE TRIAL

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5
The Grand Jury
Johnson Circuit Court
March 15, 1974

Indiana law provided that a felony criminal charge could be commenced in two ways. The
prosecuting attorney of the county where the crime occurred could file a charging Information
setting forth the crime and the person charged, or a grand jury could issue an Indictment setting
forth the crime and the person charged. Both would be filed in the circuit court of the county
where the crime occurred.
A grand jury in Indiana consists of six members. It is convened by the circuit judge either by
the judge deciding to convene a grand jury or at the request of the prosecuting attorney. The
grand jury in secret hears and examines evidence presented by the prosecuting attorney
concerning crimes to determine whether an Indictment should issue charging a defendant (called
a Target under present Indiana law) with a crime. If an Indictment is issued it is called A True
Bill. If the grand jury decides that an Indictment should not be issued it is Not a True Bill,
which was originally called an Ignoramus (We know of no facts) in England.
Even though the jurors have the right to call witnesses, in practice the prosecutor decides
which crimes to present and which witnesses to call. In this way, the prosecutor may shape the
proceedings to almost ensure an Indictment being issued or to suggest that the grand jury decline
to indict. The proceedings are usually ex parte and the defendant has no knowledge thereof. Any
member of the grand jury also has the right to request his fellow jurors to commence an
investigation as to any offense.

33

A grand jury in issuing an Indictment does not determine the guilt of a defendant. It merely
finds that from the evidence presented to them that the defendant probably committed the crime.
An Indictment and an Information are merely methods to officially charge a defendant with a
crime. Whether the defendant is guilty (beyond a reasonable doubt) will be up to a judge or jury.
At trial, the jury is instructed by the judge that the filing of an Information or Indictment is no
evidence of guilt.
When I was judge a grand jury was required by law to annually examine the condition and
management of all county, city and town jails and file a written report with the judge. The
inmates always knew when the grand jury was in session as the meals were measurably better.

Often the grand jury option is used by a prosecuting attorney when the prosecutor does not
want the sole responsibility for charges being filed or not being filed. This usually occurs when
the facts present a circumstantial case or may have racial overtones as in the Roberts case.
The Roberts case was commenced by Grand Jury Indictment.

All federal prosecutions for felonies can only be commenced by grand jury indictment (16 to
23 members) pursuant to the Fifth Amendment. The Founding Fathers wanted to protect the
people from arbitrary authority of the government to commence a criminal prosecution. The
grand jury would represent the people and protect their interests. Charges could not be brought
unless the people sitting on a grand jury decided that charges should be brought. This Fifth
Amendment grand jury requirement is not binding upon the states.

34

Indiana in the 1816 Constitution adopted the requirement of a grand jury for felony
prosecutions based upon the same theory to protect the people from arbitrary government action.
However, grand juries were increasingly commencing investigations on their own and imposing
their views as to proper public order and public virtue, and issuing Indictments based thereon.
Their deliberations were in secret and ex parte. As a result of this practice and the rise of
Jacksonian individualism, there was great pressure to repeal the Constitutional grand jury
requirement. All things done in private were suspect. A compromise was agreed upon and the
new 1851 Indiana Constitution provided that the grand jury procedure would remain but that the
legislature could provide additional methods to commence a criminal prosecution.

The

legislature did so and provided that a criminal prosecution could also be brought by the
prosecuting attorney by Information. The traditional right of a grand jury to investigate crimes
and file Indictments on their own was abrogated by the Indiana legislature in 1981. Henceforth,
no Indictment could be filed with the court unless the prosecuting attorney approved.

Traditionally there were two types of first degree murder. The first type was intentionally
taking the life of another person with premeditation and malice. The second was taking the life
of another person which resulted from the commission of a felony (a serious crime). Intent to
kill, malice and premeditation was not required. This is called felony murder.

Since the crimes were committed in Johnson County, the facts and circumstances of the
crimes were submitted to a six member Johnson Circuit Court grand jury. After hearing the
evidence presented by Joe Van Valer, prosecuting attorney of Johnson County, Indiana, the

35

county where New Whiteland is located, the grand jury issued its unanimous Indictment against
David James Roberts in six counts:

Count I: Murder in the First Degree by intentionally taking the life of William Harold with
premeditation and malice;
Count II: Murder in the First Degree by taking the life of William Harold while in the
commission of burglary; (felony murder)
Count III: Murder in the First Degree by intentionally taking the life of Elizabeth Ann Harold
with premeditation and malice;
Count IV: Murder in the First Degree by taking the life of Elizabeth Ann Harold while in the
commission of burglary; (felony murder)
Count V: Murder in the First Degree by taking the life of Jenny Lynn Harold while in the
commission of Arson; (felony murder) and
Count VI: committing First Degree Arson by willfully and maliciously burning a dwelling
house.

Under Indiana law at that time Counts I, II, III, IV and V were punishable by life
imprisonment. If however Counts II, IV or V were committed by a person with a prior unrelated
conviction of robbery, then the penalty was death. Count VI was punishable by an indeterminate
sentence of five to twenty years, the exact length to be determined by the Indiana Department of
Corrections.

36

The six count Indictment was filed in the Johnson Circuit Court in Franklin, Indiana, and
approved by the prosecuting attorney and judge. The judge issued a formal arrest warrant for
David James Roberts to be held without bail which was served upon Roberts. Roberts was
already being held on preliminary charges in the Johnson County jail.

37

6
Preliminary Hearing
Johnson Circuit Court
March 26, 1974

On March 26, 1974, Roberts, shackled and in the custody of two deputy sheriffs, appeared
before Judge Robert Young of the Johnson Circuit Court in Franklin, Indiana, for a preliminary
hearing. Joe Van Valer, prosecuting attorney, was present. There were only three other persons
in the courtroom. Two appeared to be curious attorneys and one appeared to be a reporter.

Roberts was advised of the charges against him, the possible penalties, and his constitutional
rights including the right to be represented by an attorney at no expense to him if he could not
afford to employ an attorney.
Roberts asked that an attorney be appointed for him and the judge, after an examination of his
assets and income, determined that Roberts did not have assets or income available to him to
afford engaging private counsel and that pauper counsel should be appointed.

The judge then

appointed Tom Jones, a Franklin defense attorney, to represent Roberts.


The judge then told Roberts that the matter would be set for formal arraignment after he had a
chance to confer with his attorney. At the arraignment Roberts would be again advised of his
constitutional rights and asked to enter his plea-guilty or not guilty.
Roberts then stood up and asked if he could address the court.
permission.

38

The judge gave him

Your Honor, a terrible mistake has been made in charging me with any crime. I am innocent.
There cannot possibly be any evidence implicating me in these horrible crimes. Please release
me without posting bond on my personal recognizance. Let me return to my family and job.

The judge wondered where Roberts had learned the term personal recognizance (it was a
legal term that meant his personal promise to return to court when asked).
The judge patiently explained to Roberts that the court could not release him. With a charge
of murder the law required that he be held without bail.

He should talk to his attorney, Tom

Jones, before he discussed this matter with anyone.


Judge Young then remanded Roberts to the custody of the Johnson County Sheriff to be held
without bail.

The prosecutor, Joe Van Valer and defense counsel, Tom Jones, were in their 30s,
experienced in criminal cases, well educated, intelligent and always well prepared.

Tom Jones had never served as defense counsel in a case where the death sentence was
involved. Under present Indiana Criminal Trial Rules, he would not have been qualified to serve
as defense attorney for Roberts. Now, when a death sentence is sought, the judge must appoint
two attorneys to represent the defendant, a lead counsel and co-counsel. They must have at least
five and three years criminal litigation experience, five and three years felony jury trial
experience, one attorney must have been counsel in at least one case in which the death penalty
was sought, and both must have completed at least twelve hours of special training in defense of
capital cases within the previous two years.

39

7
Bail Hearing
Johnson Circuit Court
September 16, 1974

Even though the Eighth Amendment to the U.S. Constitution prohibits excessive bail, this
prohibition has been interpreted not to require bail when the charge is murder. The Indiana
Constitution provides that there shall be no bail for murder where the proof is evident, or the
presumption strong. This concept was incorporated in the original 1816 Indiana Constitution
and reaffirmed in the 1851 Constitution.
Therefore under Indiana law, if a defendant was being held in prison on a charge of murder
no bail was available unless the proof of guilt was not evident or the presumption of guilt was
not strong. A defendant could challenge his imprisonment without bail by filing a Petition for
Writ of Habeas Corpus and To Be Let to Bail with the circuit court asking for an evidentiary
hearing.
At such a hearing under the Indiana practice at that time, the defendant had the burden of
proving that the evidence of guilt against him was not evident nor the presumption of guilt
strong. If a defendant can sustain this burden, the court must set a reasonable bail amount and
upon posting sufficient bond, the defendant must be released from custody. This practice was
codified as of 1981. So much for the presumption of innocence. How does a defendant prove
that his guilt is not evident or the presumption of guilt is not strong? Does the defendant have to
call the states witnesses and ask them What evidence do you have against me?

40

On June 25, 2013, the Indiana Supreme Court in a 3-2 decision (Fry v. State of Indiana)
decided wisely that placing the burden of proof upon the defendant was unconstitutional
and that henceforth the burden would be upon the prosecuting attorney to prove that the
evidence of guilt was evident or that the presumption of guilt was strong. The proof must
be by a preponderance of the evidence (more likely than not).
Often an experienced criminal defense attorney would file such a petition to be able to find
out what evidence the prosecutor had against the defendant with no real expectation of being
able to obtain release of the defendant from jail on bail.
Roberts through his attorney, Tom Jones, filed such a petition and a hearing date before the
Johnson Circuit Court was set. Tom Jones did not expect to be able to obtain bail for Roberts but
took advantage of the procedure to obtain what amounted to a free deposition, an examination
under oath, of the prosecutors witnesses. Roberts surprisingly was confident that the judge
would set bail and allow him to post bond and be released.
The hearing was held September 16, 1974. David James Roberts, Joe Van Valer, prosecuting
attorney, and Tom Jones, defense counsel, were present at the hearing before Judge Robert
Young.
At the hearing testimony was presented as to the evidence found at the Harold residence
including the fact that a red five gallon gas can was found in the den.
Richard Roman, an employee of Renkite Shell Station, Indianapolis, was then called upon to
testify concerning a red gas can and gas purchase. He testified that he had in fact sold gas and
delivered a red five gallon gas can to a black male in his late twenties at about 5:30 p.m. on the
afternoon before the murders.

41

He was then asked if he could identify and, if so, point to the person who had purchased the
gas and received the gas can. Richard Roman nervously looked around the courtroom and
directly at Roberts. Richard hesitated and then stated to the judge that he did not see anyone in
the courtroom who looked like the gas purchaser or the person who received the gas can.
The prosecutor, Joe Van Valer, was stunned as the police had told him that Richard Roman
had previously told the police that Roberts was that person.
William Hardy was the next witness to testify. He was another gas station employee at
Renkite Shell and was a witness to the gas purchase and can delivery. He also had previously
told the police that Roberts was that person. He was asked if he could identify Roberts as the
person who had received the gas can. William Hardy gave the same response as Richard Roman.
Neither identified Roberts!
Judge Young asked the prosecutor if he had any further evidence to introduce. The prosecutor
did not offer any further evidence and Judge Young thereupon found that the evidence of guilt
was not clear and convincing, that Roberts did not pose an eminent risk of flight to avoid
prosecution, and set bail at $10,000.00.
Roberts was not surprised. He had said all along that they had the wrong man. Tom Jones
told Roberts that he would meet with Joe Van Valer and discuss a dismissal. The prosecution
obviously had no case.
Roberts immediately posted a $10,000.00 bond and was released from custody.
The prosecutor would not dismiss the case. The prosecutor was up for election in November
in a hotly contested prosecutors race. How would it look to the Johnson County voters if the
prosecutor dismissed triple murder charges approved by six honorable Johnson County grand
jurors?

42

8
Change of Venue Hearing
Johnson Circuit Court
September 17, 1974

Indiana law provides that in a criminal matter a defendant can request a change of venue to
transfer a case to another Indiana county. Such a transfer is discretionary with the trial judge and
can be granted if the judge believes that the defendant cannot receive a fair jury trial in the
county where the crime was committed because of prejudicial pretrial publicity.
The Harold murders and Roberts subsequent arrest received complete and repeated coverage
in the Indianapolis newspapers, which were widely circulated in Johnson County, as well as the
local Johnson County newspaper.
On September 17, 1974, one day after the bail hearing, Tom Jones filed a Motion to Change
Venue from the County with the Johnson Circuit Court contending that such publicity was highly
prejudicial to Roberts and that the defendant could not obtain a fair and impartial jury in Johnson
County. At the hearing many newspaper articles were presented to the judge and the motion was
granted.
It is not surprising that the change of venue was granted as the docket is always
overwhelming in the circuit court of a non metropolitan county with only one judge. A two or
three week jury trial would wreck havoc with the court calendar. Also, the case was certainly
inflammatory and was the type of case that a judge does not hesitate to transfer.
Counsel were instructed by the judge to try and agree on an appropriate county to which the
case would be transferred for further proceedings and trial and if they could not agree, the judge

43

would name three counties from which the parties would alternately strike. Counsel agreed that
a county far removed from the metropolitan Indianapolis area would be best.
After talking with several attorneys in Angola, the county seat of Steuben County, 120 miles
northeast of Indianapolis, concerning the demographic of Steuben County and the competence
and experience of the Steuben Circuit Court judge, counsel agreed that the case be transferred to
the Steuben Circuit Court, Angola, Indiana, the Honorable John R. Berger presiding. Pursuant to
the agreement, the case was so transferred.
I was the sole judge of the Steuben Circuit Court. I was first made aware of a criminal case
being transferred to Steuben County when, during a coffee break at Bassetts Restaurant across
the street from the courthouse, two local attorneys reported to me that they had been contacted
by Franklin attorneys concerning the circuit judge and the community. The local attorneys said
it was a high profile murder case with a black defendant. They wanted to know if I knew
anything about it. I didnt.

I wondered why the defense agreed to transfer the trial of an African-American to Steuben
County rather than to an urban area with a large African-American population. The jury in
Steuben County would undoubtedly be all white. This concerned me very much.

Although a judge to whom a case will be transferred cannot refuse a transfer to the court,
usually the transferring judge will contact the judge of the court where the case will be
transferred and obtain consent. This was not done in the Roberts case, probably because Judge
Young knew there would be reluctance to accept transfer if the facts of the case were known.

44

When the case file was received and filed in the Steuben Circuit Court on September 23,
1974, I knew that the case would be a tremendous challenge especially since the State was
seeking the death penalty. State of Indiana v. David James Roberts was the only murder trial
involving the death penalty over which I presided as judge. A search of the docket of the
Steuben Circuit Court reveals that from its inception in 1839 until the present, except for the

Roberts case, there has not been a murder case tried where the death sentence was requested.

I had no way of knowing the physical, mental and emotional strain that there would be upon
me and my family.

45

9
Arraignment
Steuben Circuit Court
October 21, 1974

On October 21, 1974, David James Roberts, Joe Van Valer, the prosecuting attorney of
Johnson County, and Tom Jones, defense counsel, appeared before me as judge of the Steuben
Circuit Court in the old court house in Angola for formal arraignment.
Just before the arrival of Roberts and Jones, I was looking out the window of my second story
chambers and noticed the arrival by car of two young men with brief cases dressed in suits with
ties. I noted to the court reporter and bailiff that two of the attorneys in the Roberts case had
arrived. It was only when the men appeared in court and after introductions that I realized that
one of the men was the defendant, Roberts.

Roberts appearance, demeanor, intelligence and

communication skills were well above average. He was always dressed in a suit and tie.

After the trial, one of the jurors told me that when the jurors were first present they wondered
where the defendant was. At the defense table were defense counsel Tom Jones and David
James Roberts. They thought that Roberts was another defense attorney!

When all were present in the courtroom, upon motion, I gave Craig Benson, the Steuben
County prosecutor, permission to assist Joe Van Valer in the prosecution, and appointed Steuben
County attorney Albert Friend as co-counsel for the defense to assist Tom Jones. Local co-

46

counsel is especially helpful in the selection of local jurors. They also present a local presence
which makes a venued cause more familiar and acceptable to the jury.

I then read to Roberts the Indictments and explained the statutes under which the Indictments
were drawn including the possible penalties (life imprisonment and death).
I further explained in detail the defendants constitutional rights including the right to be
presented with witnesses against him before an impartial judge or jury, the right to call witnesses
on his behalf, the right to a speedy trial, the right not to be compelled to be a witness against
himself and the right to a jury trial before twelve jurors selected from Steuben County.
I also explained that a judge or jury must find the defendant guilty of a crime beyond a
reasonable doubt before he can be convicted of any crime and if there is a jury trial, the jury must
be unanimous in its decision before a conviction or acquittal. Roberts then told me that he fully
understood the charges against him and his rights, entered a plea of not guilty to all charges
and requested that all matters be tried by jury. The jury trial request was automatically granted
and bail previously set by the Johnson Circuit Court was continued without objection.
I set the matter for an Omnibus Hearing.

47

10
Omnibus Hearing
Steuben Circuit Court
March 11, 1975

At an omnibus hearing the attorneys exchange the names and addresses of prospective
witnesses with the substance of their testimony, and a list of proposed documentary and forensic
evidence. Also, any motions are considered by the judge. At this time the requirement of an
omnibus hearing was fairly new. Previously, the prosecutor and defense counsel did not know
prior to trial what witnesses or other evidence would be introduced. This made it especially
difficult to prepare a defense. We used to call it trial by ambush.

Joe Van Valer had lost his bid in November for reelection as prosecutor of Johnson County.
Charles Gantz, an accomplished Franklin attorney in his mid thirties had defeated Van Valer. In
spite of the disastrous bail hearing, Charles Gantz had refused to dismiss the Roberts case and
was preparing for trial. Mr. Gantz was convinced that Roberts was guilty.

The hearing was held March 11, 1975. At the hearing the newly elected prosecuting attorney
of Johnson County, Charles Gantz, submitted a list of forty five prospective witnesses. Defense
counsel, Tom Jones, submitted a list of eight. Defense counsel did not know at that time whether
the defendant would be testifying.

48

I submitted for approval or objection twenty-three Preliminary Instructions which I would


read to the jury at the commencement of the trial explaining the charges of murder, arson,
burglary, the possible penalties, the presumption of innocence, the definition of malice and
premeditation, and the fact that each juror must be convinced beyond a reasonable doubt as to
the guilt of defendant before he could return a guilty verdict. The instructions were approved.

Both the prosecutor and defense counsel filed Motions in Limine. Such motions if granted
would forbid counsel or any witness from mentioning certain facts at the trial.

Defense counsel had indicated that the defense had evidence that Buddy Harold, a prospective
witness for the prosecution and the brother of William Harold, had embezzled funds as Executor
of the Harold estates and as Guardian for the surviving Harold child, Marie, and that such
evidence would be offered to impeach his testimony. Evidence that a witness is a thief can be
considered by the jury as evidence that the witness is not truthful in his testimony.

The

prosecutor wanted any such evidence excluded unless, after a hearing out of the presence of the
jury, I found any such evidence credible.
The defense filed motions to exclude any evidence or testimony of previous charges against
Roberts. I will discuss these motions later.
I granted all motions.

The defendant also filed Notice of Alibi which stated that defendant intended to introduce
evidence that he was in fact at the Fall Creek Y.M.C.A. the evening and morning of the murders.

49

Tom Jones requested that I authorize the employment of an arson cause and reconstruction
expert at a cost of between $900.00 and $1200.00. I granted the request.

I spent considerable time preparing for the trial. Such preparation consisted mainly of
anticipating what witnesses might testify and what objections might be made by counsel to
proposed questions. Also possible objections to the introduction of any other evidence needed to
be considered. If necessary the judge needed to research the law in advance of trial as to a
proper ruling on any objections. In the heat of a fast paced murder trial the judge must be able to
rule immediately (and correctly) on all objections. A judge cannot recess the trial to do research
every time there is an objection. An incorrect ruling on the admission or exclusion of evidence
could result in an appellate court reversal and new trial.
Also adding to the pressure upon the trial judge in a jurisdiction where there is only one
judge, is the fact that the judge, in addition to presiding over the trial, must also be available to
conduct other matters within the courts jurisdiction. The judge must conduct arraignments for
new criminal cases, approve new criminal cases and order warrants to be issued, hold juvenile
hearings, make emergency orders in divorce and custody matters, and hold temporary mental
commitment hearings.

I also did considerable research in regard to recent United States Supreme Court decisions as
to the death sentence and to the qualification of jurors in respect thereto.
The constitutionality of the death sentence per se had been presented to the United States
Supreme Court many times. It had consistently been upheld. However, certain aspects of the
imposition of the death sentence had also been considered.

50

The United States Supreme Court on June 29, 1972, three years before the Roberts trial, in

Furman v. Georgia had decided that the Georgia and Texas criminal statutes allowing juries,
after they had heard the evidence, to decide guilt and impose the death sentence without being
given any guidelines as to under what circumstances they could impose the death sentence rather
than a life imprisonment sentence was unconstitutional. Any such practice or law violated the
Eighth Amendment which prohibited cruel and unusual punishments and was incorporated by
the Fourteenth Amendment. Defendant Furman, an African-American, had been surprised by a
homeowner during an attempted burglary.

He tried to flee, tripped, fell and accidentally

discharged his gun killing the homeowner. The jury had sentenced him to death.
Indianas murder and death penalty criminal statutes, together with 39 other states statutes,
were similar to Georgias and therefore became unconstitutional by virtue of the Furman
decision.

The Attorney General of Indiana, Theodore Sendak, had filed a brief amicus curiae (a friend
of the court) with the Supreme Court in the Furman case urging that the Georgia and Texas
statutes be upheld. This was Indiana taxpayers money being spent on a lost cause.

On May 1, 1973, the Indiana Legislature, following the lead of many other state legislatures,
quickly passed a new murder and death penalty statute which was intended to avoid the Furman
case. The new Indiana law mandated the death sentence in certain circumstances (killing a
human being while perpetrating or attempting to perpetrate arson or burglary by a person who
has a prior unrelated felony conviction of robbery) and therefore, the legislature reasoned,

51

guidelines were not necessary. The death sentence was mandatory and therefore a jury would
have no discretion. No need to provide guidelines. Roberts would be tried under this new 1973
statute. If Roberts was found guilty by the jury of murder as charged, and if Roberts had a prior
robbery conviction, the jury by law would have to sentence Roberts to death!

In anticipation of a large number of prospective jurors being challenged and excused at trial, I
issued a venire to the sheriff of Steuben County to summon forty prospective jurors to appear for
trial on July 1, 1975 at 8 a.m.

The jurors selected for a particular trial were chosen from a pool of prospective jurors
selected by the Steuben County Jury Commissioners.

The two Jury Commissioners are

appointed by the Circuit Court judge. Their function at the time of the Roberts trial was to meet
every three months to select a number of prospective jurors from a list of property owners in
Steuben County. In the smaller counties, the jury commissioners knew most of the property
owners and were very selective in the jurors that they chose. This process was later modified to
include voting lists to create a more representative list of jurors. The jury pool is now selected at
random from the voting lists by a jury administrator appointed by the judge. No longer are
prospective jurors selected by jury commissioners who knew them and their qualifications to be
jurors.

52

11
Jury Selection
Steuben Circuit Court
July 1, 1975

The right to trial by jury developed as part of the English common law. The first English
jurors were selected if possible from among persons who had witnessed the crime. How better to
arrive at a fair and just verdict! Jurors usually did not take very long to arrive at a verdict. To
insure promptness, no food or beverages were served to the jurors.

Traditionally jurors were white property owning men. Qualification to be a juror was often
tied to the right to vote. The original federal Constitution did not specify who was eligible to
vote-this was left to the states to decide.
In the debates by the delegates to the 1850 Indiana Constitutional Convention a resolution
was offered to grant universal suffrage. One delegate stated, According to our general
understanding of the right of universal suffrage, I have no objection to the proposed resolution
but if it be the intention of the mover of the resolution to extend the right of suffrage to females
and Negroes, I am against it.

All free white males over the age of twenty-one years-I

understand this language to be the measure of universal suffrage.


What universal suffrage meant in Indiana in 1851 was clearly set forth in the 1851 Indiana
Constitution. Article 2, Section 2 states Every white male citizen of the United States of age of
twenty-one years and upwardsshall be entitled to vote. Section 5 states No Negro or
Mulatto shall have the right to suffrage.

53

The XV Amendment of the United States Constitution had granted the right to vote to male
Negroes in 1870. In a delayed response thereto, in 1881 Article 2 of the Indiana Constitution
was amended to delete the requirement of white and Article 5 was repealed. Male Negroes
were thus granted the right to vote by Indiana law. The 1880 Indiana census listed White,
1,938,798; Colored, 39,503, including 29 Chinese and 246 Indians and Half-Breeds.
Even though granted the right to vote, jury commissioners in examining the list of property
owners and their perceived qualifications to serve as jurors would not select Negroes to serve as
jurors for many years.

Women were granted the right to vote by the XIX Amendment of the United States
Constitution in 1920 and by the Indiana Constitution in 1921. Even after the passage of these
amendments women were still often excluded from jury service on the grounds that their primary
duty was to take care of their homes and families. Even if women could vote, strong male
prejudice (male jury commissioners) continued to dictate that they should not be chosen as the
raw material women might hear in the course of a criminal trial would shock their delicate
sensibilities.
It was not until 1936, fifteen years after the Indiana Constitution specifically allowed women
to vote, that the first women jurors served in Steuben County.

Although the common law of England was initially incorporated by Indiana courts, several
basic changes were made including the qualifications of jurors. Jurisprudence in the United
States has adopted the rigorous rule that jurors must not have any prior knowledge of the facts

54

and must not have formed any opinions in regard to the facts or the guilt or innocence of the
defendant.
In order to obtain such jurors, prospective jurors are questioned as to their qualifications
before being selected to serve as a juror. The process of examination is called voir dire, a French
phrase meaning to speak the truth.
On July 1, 1975, at 9 a.m., with the defendant, all attorneys and forty prospective jurors
present, the bailiff intoned, All rise, the Honorable John R. Berger, presiding and I entered the
courtroom from a door behind my bench.
Traditionally the judges bench and chair were raised about two steps. About twenty feet in
front of the judges bench were two large desks facing me. One was on the left for defense
counsel, his assistant and the defendant, and one was on the right for the prosecutor, his assistant
and the chief investigating officer. The twelve seat jury box was to the right at a right angle to
the judges bench. The witness box was just to the right of the bench. All testimony and
proceedings would be taped or written in shorthand by the court reporter who sat just to the left
of the bench in her own box.

Historically under the common law, a jury consisted of twelve members. The Constitution
provides in the VI Amendment that all persons charged with a crime shall be granted an
impartial jury trial. The Constitution does not specify how many members there must be on an
impartial jury. The United States Supreme court decided in 1970 that a six member criminal jury
for non capital crimes pursuant to a Florida statute was constitutional. Since then many states
have passed legislation permitting less than a twelve member jury for certain crimes. Indiana in
1981 passed legislation requiring a twelve member jury for serious felonies and a six member

55

jury for lesser felonies (Class D) and misdemeanors. A misdemeanor is usually classified as a
crime providing for a sentence of one year imprisonment or less.

The voir dire examination in the Roberts case then began before a crowded and hushed
courtroom.
With considerable apprehension and a quiet prayer, I was about to embark upon my greatest
test as a judge.

I welcomed the prospective jurors. I then introduced myself, all attorneys, the defendant and
the chief investigating officer. I explained briefly the charges, the possible penalties and the
procedure that would follow.
First a jury of twelve with one alternate would be selected by voir dire examination. Those
not chosen to be jurors would be excused. Then preliminary instructions will be given by me to
the jury as to the charges against the defendant and the law which the jury should apply. The
jury will then hear opening statements by the prosecutor and defense counsel. The presentation
of evidence will then be made, first by the prosecutor and then by the defense. At the close of
the evidence, the prosecutor and defense counsel will make closing arguments and I will give the
jury final instructions. The jury will then retire to deliberate. During the trial, except for the
time the jurors are in court, the jurors will be allowed to separate and carry out their normal lives.

Twelve of the prospective jurors were first seated in the twelve seat jury box and questioned.
In some courts, the judge asks all of the questions. I took the traditional approach and allowed
the attorneys to ask the questions. The questions were addressed to the initial twelve but all

56

other prospective jurors were instructed by me to listen to the questions. If a juror was excused,
another prospective juror was called forth and took the vacant seat in the jury box to be
questioned.

Many courts now submit to prospective jurors several weeks prior to trial a jury questionnaire
which must be answered under oath. These questionnaires contain basic questions concerning
biographical background, prior experience with the law, law enforcement or the court system,
ability to serve as a juror, and knowledge of the case and of any prospective witnesses. Some
questionnaires are over fifty pages long and subject to presentation and argument before the
judge prior to being agreed upon and submitted to the prospective jurors. The attorneys have the
opportunity to examine the answers prior to trial to assist them in determining whether to accept
or challenge a juror. The use of the questionnaire does not replace voir dire examination by the
attorneys at trial but rather supplements and shortens the voir dire.

The 1994 O.J. Simpson questionnaire was seventy-five pages long and contained three
hundred and two questions. It included the following questions.
Please state your personal belief regarding each statement. Answer the following four
questions by stating: Strongly agree? Agree? Strongly disagree? Disagree? No opinion?
1. If the prosecution goes to the trouble of bringing someone to trial, the person is probably
guilty.
2. The testimony of law enforcement officers is not entitled to any greater or lesser weight
merely because they are law enforcement officers.

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3. Regardless of what the law says, a defendant in a criminal trial should be required to prove
his or her innocence.
4. A defendant in a criminal trial should testify or produce some evidence to prove that he or she
is not guilty.
5. How big a problem do you think racial discrimination against African-Americans is in
Southern California. Serious? Somewhat serious? Not too serious? Not at all?
6. Have you ever experienced fear of an African-American? Explain.
7. How would you feel if a close family member married an African-American? Favor? Would
not approve? Would oppose it? Explain.
8. What is your view concerning the reliability of the DNA analysis to accurately identify a
person as the source of blood or hair found at a crime scene? Very reliable? Not very reliable?
Somewhat reliable? Unreliable? Dont know?

It would be interesting to know how the trial jurors under oath answered this last question as
they found him not guilty in spite of the DNA evidence of his blood found at the scene which
excluded only one out of one hundred and seventy million as a match.

The procedure for voir dire was to allow alternately the prosecuting attorney and defense
counsel to question jurors as to their backgrounds and qualifications. By statute, jurors must be a
voter, freeholder, householder, or spouse of a householder. Also, ferryman, policeman, fireman,
veterinarians and dentists and those over 65 could be excused from jury service upon request.
Grand jury qualifications were more restrictive by Indiana statute. A grand juror could not be
insane or in the habit of becoming intoxicated but a regular (petit) juror could!

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The voir dire examination of jurors by the attorneys provides an excellent opportunity for the
attorneys by their questions to stress certain aspects of their case.
Roberts attorney explained to each juror the doctrine of defendants presumption of
innocence that followed throughout the trial, and the rule that before conviction a juror must be
convinced beyond a reasonable doubt that the defendant is guilty of the crime charged. Each
juror was asked if he or she understood the doctrines and if he or she would be willing to accept
and apply it. He asked this of all jurors and therefore it was emphasized over and over again.

Unlimited challenges to a juror by counsel for cause are permitted, examples of which are:
the juror is related to a victim or a prospective witness or had an opinion as to guilt.
Also, in a murder case, each party had 20 peremptory challenges without cause. No
explanation need be given to have a juror excused if peremptorily challenged. Peremptory
challenges are made by counsel to try and shape the jury to favor their client. In some well
funded high profile cases, jury consultants are hired to advise counsel as to which jurors to
accept or excuse.
In the Roberts case, defense counsel tried to eliminate women, educated, older, middle and
upper class jurors. The prosecutor tried to retain such jurors. If this case had been tried in a
metropolitan area with a large black population, perhaps peremptory challenges might have been
used by the prosecutor to challenge black jurors. A later United States Supreme Court case
declared unconstitutional the use of peremptory challenges for the sole purpose of excluding
blacks.

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The prospective imposition of the death sentence raised close questions concerning what
views a juror could hold concerning such a sentence and not be subject to a challenge for cause.
If a juror stated that he or she could never vote for a death sentence, he or she would be
excused for cause.
If however, a juror was generally opposed to the death sentence, this would not of itself be
justification for a challenge for cause. A juror would be qualified if such a juror stated that he or
she could possibly vote for the death sentence under a certain set of circumstances even though
generally opposed. In the Roberts case there were several prospective jurors who were of this
opinion and were not excused by me for cause. Even though not excused for cause, the
prosecutor peremptorily challenged them.

In a death sentence case, the typical jury questionnaire asks questions concerning the above
beliefs and often asks:
Are you in favor of the death penalty as a punishment for crime? Explain.
Do you believe that the death penalty serves any legitimate purpose in our society? Yes?
No? If so, what purpose: Punishment? Retribution? Deterrence? Prevention?

The possibility of a death sentence also posed another problem in selecting a juror. Steuben
County residents had rarely been exposed to a person accused of murder. They had never been
asked to decide whether a person should be put to death. Several prospective jurors stated that
they were not opposed to the death penalty but they could not make a decision that could lead to
a death sentence. I excused such jurors for cause.

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After a long day of voir dire examination, twelve prospective jurors were accepted by the
defense. The cause was continued for further voir dire until the next morning. All prospective
jurors were admonished by me to not discuss the case with any one and not to read any articles
or listen to any radio or television reports. The jurors were then allowed to separate and directed
to return to court at 9 a.m. the next morning, July 2.

During the entire voir dire examination, no questions were asked of the jurors by defense
counsel as to a jurors opinion of African-Americans and if the juror could render a fair verdict
when an African-American was the defendant and a white woman was the victim. Only the
general question, Is there any reason why you as a juror could not render a fair and impartial
verdict was asked.

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12
Jury Selection
Steuben Circuit Court
July 2 and November 5, 1975

On the next day, July 2, 1975, before the jury assembled, defense counsel called to my
attention an article published the previous day in the Fort Wayne Journal Gazette, a newspaper
widely circulated and read in Steuben County.

The article described the trial about to begin in Angola and set forth in detail certain previous
unrelated charges against Roberts. Such information would not be admissible at the trial and if
read by any juror would be highly prejudicial to the defendant. Defense counsel then made a
motion that the entire jury panel be dismissed. I questioned the prospective jurors as to whether
any of them had read any article about the trial, and received answers from two jurors that they
had read the article in the Journal Gazette. Since I had admonished the jurors not to read any
articles, I was not certain that the responses of the other jurors that they had not read any articles
were accurate. It would have been difficult for a juror to admit that the judges admonishment
was ignored. Because of this uncertainty and to eliminate any possibility of a tainted juror, I
dismissed the entire panel. The cause was reset for trial on November 5, 1975.

On November 5, 1975, again with an overflow courtroom, forty prospective new jurors
assembled and voir dire examination began. After two days of voir dire, twelve jurors with one
alternate were accepted by both the prosecution and the defense. The jury then took an oath to

62

well and truly try and determine this cause at issue and now on trial and return a true verdict
according to the law and the evidence as it is presented to you during this trial, so help you God.

The jury consisted of three women and nine men. The alternate was a woman. Each party
seemed satisfied that it would be a fair and impartial jury (and maybe by their skillful use of
peremptory challenges decide in their favor).

After selection of the thirteen jurors and jurors

being peremptorily or for cause challenged and excused, only six remained of the original forty
prospective jurors. The selected jurors were admonished, excused for the day and ordered to
return at 9 a.m. on November 10.
If more jurors had been needed, the law provided that a judge could order the sheriff to go to
any public place (the street in front of the courthouse) and select more prospective jurors from
among the previously happy shoppers. They would have to immediately appear before the judge
for jury service. This law has now been changed and no longer can the judge order bystanders to
be jurors.

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13
The Trial-Preliminary Instructions
Steuben Circuit Court
November 10, 1975

On November 10, 1975, the courtroom was again filled to capacity with others standing
outside the large courtroom doors waiting for a vacant spectator seat. Security was high at all
times when Roberts was present including four deputy sheriffs.
Roberts two brothers and several friends were present throughout the trial. They were
thoroughly searched by the deputy sheriffs before being allowed to enter the courtroom. One
brother was overheard saying, He wont be in jail much longer. No other Roberts family
members attended the trial.
William Harolds three brothers and Elizabeth Harolds sister attended the entire trial.
However, since the Harold brothers would be witnesses, they could not be in the courtroom until
after they had testified. The Harolds parents did not attend the trial. All members of the Harold
family, except Elizabeths sister, were also searched before entering the courtroom.

Charles Gantz and his supporting staff, prosecution witnesses, and involved police officers
stayed during the entire trial at the new Holiday Inn five miles north of Angola near the Indiana
Toll Road Angola exit. Tom Jones and David James Roberts stayed at the nearby Cedar Lodge,
a small modest family owned (American) motel. The defense budget was limited by Judge
Young and the Johnson County Commissioners who had to approve all defense expenditures.

64

Iona Crain, the court reporter, who lived in a house in the woods near the courthouse,
remembers being so frightened during the trial that she kept all her blinds closed at night at her
house.
I welcomed the jurors and commenced by reading to the jurors the Preliminary Instructions
which included the murder and arson charges, and the fact that as to certain murder charges a
second phase of the trial may be held to determine if the death sentence should be imposed.
I explained that the trial would be bifurcated to accomplish this. That meant that there would
be two phases in the trial. The first would be the presentation of evidence as to the guilt or
innocence of the accused on all counts. The second, in the event of a finding of guilt by the
jurors on counts II, IV or V, would also be heard later by the same jury in order to decide if the
death penalty would be imposed. At the death penalty hearing, the jury could consider additional
evidence and statements of counsel.

The bifurcation procedure was not set forth in Indiana law at the time of the Roberts trial. I
adopted this procedure however to keep certain evidence that may have been very prejudicial to
the defendant that was admissible in the second life or death determination phase separate from
the guilt or innocence phase of the trial.

I also read preliminary instructions to the jurors concerning the Presumption of InnocenceBurden of Proof, Reasonable Doubt, and Credibility of Witnesses-Weighing Evidence as
follows:

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PRESUMPTION OF INNOCENCE BURDEN OF PROOF

Under the law of this State you must presume that the defendant is innocent. You must
continue to believe he is innocent throughout the trial, unless the State proves that the defendant
is guilty, beyond a reasonable doubt, of every essential element of the crimes charged.
Since the defendant is presumed to be innocent he is not required to present any evidence to
prove his innocence, or to prove or explain anything. If, at the conclusion of the trial, there
remains in your mind a reasonable doubt concerning the defendants guilt, you must find him not
guilty.
REASONABLE DOUBT
A reasonable doubt is a fair, actual and logical doubt that arises in your mind after an
impartial consideration of all of the evidence and circumstances in this case. It should be a doubt
based upon reason and common sense and not a doubt based upon imagination or speculation.
If, after considering all of the evidence, you have reached such a firm belief in the guilt of the
defendant that you would feel safe to act upon that conviction, without hesitation, in a matter of
the highest concern and importance to you, when you are not required to act at all, then you will
have reached that degree of certainty which excludes reasonable doubt and authorizes
conviction.
The rule of law which requires proof beyond a reasonable doubt applies to each juror
individually. Each of you must refuse to vote for conviction unless you are convinced beyond a
reasonable doubt of the defendants guilt. Your verdict must be unanimous.

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CREDIBILITY OF WITNESSES-WEIGHING EVIDENCE


You are the exclusive judges of the evidence, the credibility of any witness and the weight to
be given to the testimony of each witness. In considering the testimony of any witness, you may
take into account his or her ability and opportunity to observe; the memory, manner and conduct
of the witness while testifying; any interest, bias or prejudice the witness may have; any
relationship with other witnesses or interested parties; and the reasonableness of the testimony of
the witness considered in the light of all of the evidence in this case.
You should attempt to fit the evidence to the presumption that the defendant is innocent and
the theory that every witness is telling the truth. You should not disregard the testimony of any
witness without a reason and without careful consideration. However, if you find that the
testimony of a witness is so unreasonable as to be unworthy of belief, or if you find so much
conflict between the testimony of witnesses that you cannot believe all of them, then you must
determine which of the witnesses you will believe and which of them you will disbelieve.
In weighing the testimony to determine what or whom you will believe, you should use your
own knowledge, experience and common sense gained from day to day living. You may find
that the number of witnesses who testify to a particular fact, or one side or the other, or the
quantity of evidence on a particular point does not control your determination of the truth. You
should give the greatest weight to that evidence which convinces you most strongly of its
truthfulness.

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14
The Trial-The States Evidence Day 1
November 10, 1975

After I read the preliminary instructions to the jury, Charles Gantz and Tom Jones made
opening statements to the jury.
Opening statements are used by attorneys to ingratiate themselves with the jurors and to set
forth their case. The prosecutor goes first and then defense counsel.

Charles Gantz carefully described the crimes charged and the possible penalties including
death. He outlined the witnesses that he would call and the testimony that he expected to elicit.
He described the exhibits that he would offer into evidence and their relevancy. He stated that
the jurors represented the conscience of the community and, even though it would be a most
difficult task for them, he was convinced that, after hearing all of the evidence, the jury would do
their duty and find David James Roberts guilty of all charges.

Tom Jones gave a brief statement reminding the jury that, as the judge had instructed, they
must presume that the defendant did not commit any crime and that they should not form any
opinions as to guilt or innocence until they had heard all of the evidence. He stated that the
defendant did not have to prove his innocence and that the entire burden was upon the
prosecution to prove the guilt of defendant beyond a reasonable doubt. He stated that, after they
had heard all of the evidence, he believed strongly that they would not find Roberts guilty of any
charged crime.

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In a criminal trial, the prosecutor presents the states evidence, subject to cross examination,
first. Next the defense counsel presents evidence subject to cross examination. The prosecutor
then may present evidence in rebuttal.
Upon motion of counsel, all prospective witnesses, except the chief investigating officer, Lt.
Robert Allen, were separated from the courtroom and admonished by me to not discuss their
testimony with anyone until after the trial. The purpose of separation of witnesses is to prevent a
prospective witness from hearing any prior or future proposed testimony and possibly altering
their testimony to comply with the other testimony.

The jurors had been instructed by me as to the law and had heard the opening statements of
the prosecution and defense. It was now time for them to hear the evidence.
In the first phase of the trial the prosecution had to present evidence to convince the jury
beyond a reasonable doubt that the defendant had:
Intentionally killed William and Elizabeth Ann Harold with malice (ill will) and
premeditation (intended to kill in advance of the killing) which required a life sentence and/or
Killed William and Elizabeth Ann Harold while committing Burglary (breaking and entering a
dwelling with intent to commit Murder or Arson) which required a life sentence and under
certain circumstances (to be determined in phase two of the trial) a death sentence and/or
Caused the death of Jenny Harold as a result of Arson (intentionally and maliciously burning
any part of a house) which required a life sentence and under certain circumstances (to be
determined in phase two of the trial) a death sentence and/or
Committed Arson.

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When any witness was called to testify, I would have the witness stand before me and the
bench, and raise his or her right hand. I would also raise my right hand, look directly into the
eyes of the witness and say, Do you swear or affirm that the testimony that you are about to
give in this matter is the truth, the whole truth and nothing but the truth, so help you God or you
do so affirm? Upon an I do from the witness I would ask the witness to be seated in the
witness box (the stand).
During the first phase of the trial the prosecutor presented forty-five witnesses.
The actual testimony of each witness or a summary thereof is presented below.

Prior to trial I had no knowledge of the facts in this case. I knew the charges that had been
filed and the fact that there had been a bail hearing at which the prosecutor had failed to present
sufficient evidence to have Roberts held without bail. Other than that, I was just like a thirteenth
juror about to hear the evidence.

The States first witness was Gary Harter.

DIRECT EXAMINATION BY MR. GANTZ:


Q. Please state your name.
A. Gary Harter.
Q. How old are you?
A. Twenty-six.
Q. Where did you live on January 19th, 1974?

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A. In New Whiteland, Indiana.


Q. Calling your attention to the evening of January 19th, 1974, did you have occasion to be in
the vicinity of Pine Drive in New Whiteland.
A. Yes.
Q. Please describe what you did and saw that night and early the next morning.
A. Well, I had been out with my girlfriend, who is now my wife, and we had been to a show. I
took her home, which was at 719 Pine Drive, and we watched TV for a while. I left and came
back to her house at about 1 a.m. and we watched TV some more. I left at about 4:30 in the
morning to go home. When I was driving by the Harold house I noticed smoke coming from the
house. I contacted a friend of mine, Deputy Adams, who was cruising in the neighborhood. I
told him there was a house on fire on Pine and he said Okay and went on. He must have
notified the fire department cause they showed up a few minutes later.
Q. Then what did you do or see?
A. We both ended up at the Harold house. We went up and looked around the house, and beat
on the windows, to see if anybody was in there, and couldnt find anybody. We couldnt hear
nobody or see anything through the windows.
Q. Well, now at the time you left your girlfriends house, who is now your wife, could that have
been earlier than 4:30?
MR. JONES: I am going to object to that, Your Honor. This is his witness. He cant impeach
him as to his testimony.
THE COURT: Its overruled. You may answer.
A. Not much before that.
Q. Did you see flames when you first saw the house?

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A. Yeah, very small flames coming out the side window.


Thats all I have from this witness.
MR. JONES: I have no questions.
MR. GANTZ: At this time Your Honor, we would call Charles Long to the stand.

DIRECT EXAMINATION BY MR. GANTZ:


Q. Please state your name and address.
A. My name is Charles Long and I live in New Whiteland.
Q. What is your occupation, sir?
A. Assistant Fire Chief of the New Whiteland Volunteer Fire Department.
Q. And what are your duties?
A. I direct men at the fire and investigate fires.
Q. Did you have reason to investigate a fire on the 20th day of January, 1974, at 915 Pine Street
in New Whiteland, Indiana, belonging to William and Elizabeth Ann Harold?
A. Yes.
Q. Can you relate to the court and to the jury what you did?
A. When we first got to the scene the fire was going and we-I later went to the hospital with the
baby that we removed from the house.
Q. When did you arrive at the scene, sir?
A. Approximately 4:38 on the morning of the 20th.
Q. Okay, and what did you do upon arrival?
A. I was directing the fire trucks and laying out and connecting the hoses.
Q. What observations did you make?

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A. There were flames showing from the front window of the house.
Q. Where were the flames?
A. They were coming from the top of the window of the middle room which was used as a den
or television room.
Q. What did you do next?
A. When the fire equipment arrived I was at the ambulance and when they brought the baby up
from behind the house we put the baby in the ambulance and I went with the baby in the
ambulance to the Johnson County Hospital.
Q. Do you know if the baby was alive or dead when you were in the ambulance?
MR JONES: Now show our objection to that, Your Honor, unless there is some foundation for
such an opinion. I think the cause of death requires an expert opinion.
MR. GANTZ: I did not ask for the cause of death. I asked if the baby was dead.
THE COURT: I think you could ask the witness if she had any symptoms of life or death.
Q. Well, were there any such symptoms?
A. I could not say because I was not in the back of the ambulance with the baby.
Q. Was the baby crying or moving?
A. No.
Q. What did you do next?
A. I returned to the scene of the fire at about 5:00 oclock and entered the room where the two
bodies were. It was the den.
Q. What did you see then?
A. The body of a male victim laying face down on the floor, feet next to the door, his head
toward the television set in the corner. There was a gas can sitting right next to his shoulder.

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The body of the female person laying crossways of the room with her feet on the couch face
down.
Q. Were the bodies clothed or not clothed?
A. The female body appeared not to be clothed. The male body looked like it had clothes on the
underneath side and they had been burnt off the top-or the back side, I mean. There was burned
clothing piled on top of each body.
Q. Did you observe anything else in the room?
A. Yes. There had been a fire burning in various places in the room and around the door and out
into the hallway. The chair and couch was also burned pretty badly.
Q. Did you observe other fire damage in the house?
A. Yes. There was fire damage to the wall outside the den, to the hallway leading to the kitchen,
and toward the living room. There was fire damage to the rug running out to the living room and
in the living room. There was a lot of heat damage and the drapes in the front room had caught
fire and burned. There was smoke and heat damage which caused peeling of wallpaper and this
sort of thing in other rooms in the house.
Q.

Did you observe any clocks?

A. There was a clock in the hallway that leads to the kitchen. The cord on that clock had burned
in two. The clock was stopped at approximately four oclock.
MR GANTZ: No further questions.

CROSS EXAMINATION BY MR JONES:


Q. Mr. Long did you observe a bathroom in the residence?
A. Yes.

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Q. Isnt it a fact, Mr. Long, that in that bathroom there was a bath tub filled to bath level with
water?
A. There was water in the tub, Im not sure of the exact depth of it, sir.
Q. And the female body was nude?
A. Yes, sir, as far as I know.
MR. JONES: No further questions.
MR. GANTZ: No redirect examination.

The State will call John Lasiter.

DIRECT EXAMINATION BY MR. GANTZ:


Q. Please state your name, residence and occupation.
A. I am John Lasiter. I live in Johnson County and am a Deputy Sheriff of Johnson County.
My rank is Detective Lieutenant.
Q.

Did you have occasion to investigate a fire on the morning of January 20, 1974, at the

Harold residence on 915 Pine Drive in New Whiteland, Indiana?


A. Yes, sir.
Q. What time did you arrive at the scene and what did you do?
A. I arrived at approximately 5:05 a.m. Shortly after I arrived the draperies in the living room
re-ignited and was extinguished by the fire department. I entered the house and went to the
family room or den where I visually viewed two bodies. The male body was lying parallel to the
south wall of the room. The female body was lying parallel and at right angle to the west wall

75

with one leg on the couch. There was burned clothing over the top of the female body. The
female was naked. There was debris from the room over most of the male body.
Q. Did you know the subjects that were dead in that house?
A. I knew them by name at that time-knew who lived there.
Q. What further observations did you make concerning the den or TV room?
A. The TV room was charred from obvious fire damage and had a strong odor of gasoline. I
observed a five gallon metal can. There was no male clothing in any of the closets in the TV
room. There were several neckties knotted together on the chair and floor. There was a chair
with several partially burned personal items on the seat-papers such as payment books,
checkbook, and the victims wallet or purse. All of these items were turned over to Officer Flint
for safe keeping.
Q. Was there any money or currency in the wallet or purse.
A. No.
Q. What other observations did you make concerning other rooms in the house?
A. There was a small room in the back that had a cot and several barbells, weight lifting devices.
There was a partially filled beer bottle on a small table. The room was heavily damaged by the
fire. In the master bedroom there was a rack with several guns and a bow and arrow set. In the
infants room there was a crib. In the bathroom the tub was filled to bath level and the water had
a heavy smoke skim across the top. Between the living room and the kitchen was a plastic and
wood room divider which had not been burned and was lying on the floor.
Q. Did you observe anything with regards to the front living room?
A. Yes. There was a ladies coat and a diaper bag in a chair near the front door. There was some
fire and smoke damage. There was an area of heavy fire damage on the rug, kind of like a fire

76

trail, leading from near the front door to the TV room where the Harold bodies were. At the start
of the trail in the living room near the front door there was a metal cap which we later found fit
the gas can we found in the TV room. It was a cap with a long flexible pouring spout. Next to
the spout we found a book of matches and a pair of black leather mens work gloves.
MR. GANTZ: Thats all I have for this witness.
CROSS EXAMINATION BY MR. JONES:
Q. Okay, now Lieutenant, did you search the house the day you were up there?
A. The best we could do under the conditions.
Q. Did you find any male clothing in the closet of the master bedroom?
A. Yes. There was several shirts, a uniform type pants of blue wash and iron material. There
were no sports coats or suits.
Q. Were there any sport coats or suits in any closets in the entire house?
A. If my memory serves me correctly, no, there were none.
Q. Tell us whether or not you found any money in the entire residence.
A. We found no currency or coins in the house if my memory serves me correctly.
Q. Did you ever investigate a burglary case?
A. Yes, many.
Q. In the course of your career as a policeman in Johnson County, isnt it a fact that this had
many of the earmarks of a first degree burglary case?
A. With the exception of no forced entry that we found.
Q. There was no forced entry at all, was there?
A. Not that we found, no sir.

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Q. In other words, whoever went into that house that night forced open no windows or doors
that you could find, isnt that correct?
A. Thats correct.
Q. And when you got there, the front door was standing wide open?
A. Thats true. The screen door was closed though.
Q. Now you indicated that there was a partition that had been knocked down before the fire?
A. Yes there was.
Q. So what you are telling us is that there was a struggle back over in this room, wasnt there?
A. That was my opinion.
Q. Well, weve got a struggle and a bathtub full of water and neckties knotted together and
money missing, but no forcible entry, right?
A. I dont know that there was money missing because I dont know that there was money in
there before.
Q. Your investigation showed that they had been out that evening-been to a movie, had some
pizza, a couple of beers before they came home. This indicates that probably there was some
money or change in the house when they got home.
A. All I know was that we did not find any money.
Q. Did you know William Harold prior to his death?
A. Yes.
Q. Did he work out with weights and was he a person who could probably take care of himself?
A. Yes, sir.
Q. Now, in the course of your investigation did you receive information that the house had been
broken into prior to January 19th and that two mens suits had been taken?

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A. Yes I did.
Q. My point being, Lieutenant, that there was a breakin that same house, wasnt there?
A. Yes, sir.
Q. Okay. Now, in the course of your investigation, did you determine whether or not there had
been any black people rent a room at the Rubys Motel four- tenths of a mile east from the
Harold house in New Whiteland?
A. Yes sir, I did.
Q. Tell the Jury what your investigation disclosed as to when these negroes or blacks arrived at
the motel.
A. I interviewed the owner and he stated that two black males and two black females rented
separate rooms from January 20, 1974, at 12:30 a.m. and left at 3:30 a.m. I showed him a series
of photos including one of Roberts and they were negative.
Q. Did he tell you any reason at all why these negroes or blacks would have left that motel at
3:30 in the morning?
A. No, sir, they did not.
Q. Incidentally thats half an hour before the clock stopped up there at Pine Drive, isnt it?
A. Thats correct.
Q. Now in the course of your investigation did you determine that a black male, or negro male,
was seen at the Harold residence driving a light tan or gold big type automobile about 6:30 a.m.
the morning of the fire?
A. Yes.
Q. The exact same type of car that you eventually looked for in connection with David Roberts,
isnt that correct?

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A. Thats correct.
Q. Did you determine the identity of the black man who drove that car?
A. The volunteer fireman who saw the black man was shown six photos including a photo of
David Roberts. He said if he had to pick out one of the people, it would probably be the photo of
a person named Douglas Milford, not David Roberts.
MR. JONES: I have nothing further.
RE-DIRCT BY MR. GANTZ:
Q. Isnt it a fact that you received many leads in this case.
A. Yes, sir.
Q. And isnt it a fact that these leads led nowhere?
A. Thats correct.
Q. Did you find any leads which led elsewhere than to David James Roberts?
A. No, sir.
Q. Isnt it a fact that there were many valuables in the house including the guns and they were
not taken or missing?
A. Thats true.
Q. Did you attach any significance to the fact that there might have been a prior burglary and
that a person named Douglas Milford may have driven by the Harold house the morning of the
fire?
A. Yes. We investigated further. We could find no leads on the burglary and determined that,
in my own mind, Douglas Milford was not involved in the murders.
Mr. GANTZ: No further questions

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Some jurors wondered why the police had a photograph of David James Roberts. At this
point in the evidence there had been no evidence connecting him to the murders.

RE-CROSS BY MR. JONES:


Q. All right. You dont think that this burglary was significant or that another person was
identified at the Harold house that morning other than the defendant, or this business about the
bathtub being full, none of that you felt was too significant?
A. It cleared up the fact that there were no suits at the Harold house.
Q. So you did not follow up on any of this?
A. I personally did not follow up on the burglary.
Q. You had your suspect, didnt you?
A. Well, IQ. You werent looking for somebody other than Roberts, were you?
A. Yes, we were.
MR. JONES: Nothing further.

Mark Flint, Johnson County Deputy Sheriff was next called by Mr. Gantz.

He testified as to the following:


He arrived at the scene at 4:41 a.m. He observed smoke and fire coming from the Harold
house. He went around the house looking in the windows and observed a baby crib in the back
bedroom. With the assistance of a fireman, he broke through the window and retrieved the baby,
Jenny Harold. He went with her in the ambulance to the Johnson County Memorial Hospital and

81

on the way administered cardiovascular resuscitation, closed heart massage and mouth to mouth
resuscitation. They arrived at the hospital in about four minutes. Emergency doctors worked
with the child for about fifteen minutes and then declared her dead.
He returned to the scene and took photographs of the house showing the fire damage, a small
tract house built on a slab. He also took photographs of every room in the house, the gun rack,
the crib, the bodies, the fire damage, the knotted neckties, the gas can, the cap and nozzle, the
matches, the black gloves, the checkbook, wallet and purse, and the turned over room divider.
He also testified as to placing hair samples from William and Elizabeth Harold which he had
received from the coroner in plastic bags. He also obtained a sample of the liquid which was in
the gas can. There was between two and three gallons of gas left in the can. He testified that he
turned all samples and the gas can over to the sheriffs property room. He stated that he had
been in control of all photographs and that they accurately represented what he had seen. The
photographs were entered into evidence and shown to the jury.

1. Photograph of William Harold body in den


2. Photograph of Elizabeth Harold body in den
3. Photograph of gun rack
4. Photograph of crib
5. Photograph of gas can nozzle
6. Photograph of gas can in den

The photographs are as follows:

82

PHOTOGRAPH OF WILLIAM HAROLD IN DEN

83

PHOTOGRAPH OF ELIZABETH HAROLD IN DEN

84

PHOTOGRAPH OF GUN RACK

85

PHOTOGRAPH OF JENNYS CRIB

86

87

GAS CAN NOZZLE FOUND NEAR FRONT DOOR

RED GAS CAN FOUND IN DEN


88

He also testified that he had taken photographs during the autopsy. These photographs were
to be offered into evidence when the doctor performing the autopsies testified.
He was asked upon cross examination if he had taken any footprint imprints, or if he had
attempted to take any fingerprints within the house, on the gas can and nozzle, or front door
knob. He stated that he had not.
Upon re-direct by Mr. Gantz, he stated that there were hundreds of footprints from the
firemen and officers and therefore it was impossible to determine any individual footprints. Also
the wet and sooty conditions did not allow valid fingerprints to be taken.

Deputy Sheriff Joe Barger then testified that he was in charge of the property room and that
the exhibits and materials obtained by Mark Flint were turned in to him and that the same
property was at all times in his possession until brought to the court.
All physical items observed at the scene including the red five gallon gas with $5 Deposit
in yellow crayon, the gas can nozzle, purse, wallet, checkbook, ties, matches and gloves were
identified and admitted into evidence.
There was no further testimony from these witnesses.

Winfrey Burton, Town Marshall of New Whiteland, was the next witness. He testified that
he had been at the scene at about 5: 30 a.m. on the 20th of January and had observed the burned
house and two bodies. He staked out the house with police ribbons. He also called the coroner,
Dr. Palmer, to come to the scene. He then visited with a brother of the Harolds and determined
that the older daughter, Marie, had been with the brother.

89

He further testified to obtaining an

arrest warrant for David James Roberts and arresting him on January 26, 1974. Marshall Burton
also made arrangements for a 1970 gold and tan Buick Riviera found at Roberts residence to be
impounded. A search warrant was then obtained to search the vehicle and the registration of the
vehicle in the name of David James Roberts was found in the glove compartment.

The

registration was admitted into evidence.

At the conclusion of this testimony I adjourned the court for the day. I allowed the jurors to
separate (to go home and not be sequestered) and admonished them not to discuss the case with
anyone, not to read, see or listen to any accounts of the trial, and not to form any opinion as to
guilt or innocence until they had heard all of the evidence, the final statements of counsel, my
final instructions as to the law applicable to this case, and had an opportunity to deliberate with
fellow jurors.
I thanked the jurors and told them to return the next day at 8 a.m.

At this point in the trial the jurors have heard no evidence connecting Roberts to the burglary,
arson and murders. The jurors were wondering why Roberts was arrested.

90

15
The Trial-The States Evidence Day 2
November 11, 1975

At 8 a.m. the next morning, November 11, 1975, trial resumed. It was Veterans Day but I
decided not to take a break. Further evidence was presented by the prosecutor.

The first witnesses were Dr. Harley Palmer, Johnson County Coroner and Dr. Russell
Benz, forensic pathologist from Marion County General Hospital who performed the autopsies
on William, Elizabeth Ann and Jenny Harold on January 21, 1974. They described in detail the
findings. Dr. Palmers testimony as to cause of death was:
Q. Dr. what is your opinion as to the cause and manner of death of William Harold, Elizabeth
Ann Harold and Jenny Harold?
A. Well, as to William and Elizabeth, they died of asphyxia.
Q. What exactly is asphyxia?
A. Asphyxia is the same as a smothering type of death-its a lack of oxygen. It may be produced
in several ways.
Q. And what are the ways in which asphyxia can be accomplished?
A. There are numerous ways to obstruct the nasal or nose passage and the mouth passages, any
one of which would produce asphyxia.
Q. What about compression of the neck-would that be a way?
A. Yes, sir.

91

Q. Can you say what method of asphyxia was used on Elizabeth Harold?
A. Yes. She had bruising inside her neck structures. She had hemorrhages in her eyes-all very
characteristic of a smothering type of suffocation. She was smothered or strangled.
Q. How about William Harold?
A. He had small hemorrhages within his eyes which is also consistent with asphyxia by
smothering. He was smothered or strangled.
Q. Could knotted neckties or two inch wide tape have been used to strangle Elizabeth Harold or
close her mouth?
A. That is possible.
Q. Okay.

Now in your opinion were William and Elizabeth Harolds deaths caused by

accidental means?
A. No, sir.
Q. And what was the cause of death of Jenny Harold?
A. She died of smoke inhalation and carbon monoxide intoxication.
Q. Was her death accidental?
A. No, sir.
Q. In your opinion Doctor, were William Harold and Elizabeth Harold dead when they were set
on fire?
A. Yes.
Q. What else did you observe as to the condition of the bodies of William and Elizabeth Harold?
A. There were various bruises, abrasions or hemorrhages on the forehead, eye, nose, chin and
necks on both of them.

92

Q. Are such conditions indicative of having been attacked or hit by someone-of a struggle or
fight?
A. Yes, sir.
Q. Doctor, were you able to determine if Elizabeth Harold had been raped?
A. No, I was not. Because of her burned condition it was not possible to make any such
determination.
CROSS EXAMINATION BY MR. JONES:
Q. Now Doctor, the tape, the knotted neckties, the asphyxia, the bruises and other conditions of
the bodies in no way indicate to you who is the guilty party-youll agree with that, wont you?
A. Thats correct.
Q. You dont have any idea about that?
A. Thats right, sir.
Q. All you know is that these people died-shall we say of unnatural causes?
A. Unnatural causes, yes, sir.

Dr. Benz testified that he had observed injuries on Elizabeth Harolds wrists which were
consistent with her arms being bound. He also observed marks on the mouth of Elizabeth Harold
possibly from having tape removed.

Many large color photographs of the autopsy showing multiple views of the bodies before the
autopsy and during each stage of the autopsy were offered as evidence. Defense counsel
objected to the introduction of the photographs claiming that defendant admits the death and
cause of death of the victims and that the only purpose of introducing the photographs was to

93

inflame the passions of the jury against the defendant. I carefully examined each photograph and
admitted only six as follows:

1. Morgue view of Elizabeth Harold body (back side)


2. Morgue view of Elizabeth Harold body (face and neck)
3. Morgue view of William Harold body (back side)
4. Morgue view of William Harold body (face and neck)
5. Morgue view of Jenny Harold body
6. Blackened throat and lung of Jenny Harold at autopsy

Photographs 1, 3, and 5 are as follows:

94

AUTOPSY PHOTOGRAPH OF ELIZABETH HAROLD

95

96

AUTOPSY PHOTOGRAPH OF WILLIAM HAROLD

97

AUTOPSY PHOTOGRAPH OF JENNY HAROLD

98

The next witness was Dee Corbin of the Indiana State Police Fire Marshals Office. He
testified as to his extensive training and schooling in fire investigation and eighteen years of
experience. He stated that he arrived at the scene at 7 a.m. the morning of the 20th and had made
a complete examination of the Harold house. His opinion was that the fire was caused by
gasoline igniting and that the inflammable had been contained in the red five gallon gas can
found in the den. He stated that it definitely was arson. He testified as to a fire trail on the rug
from the living room near the front door, where the gas can nozzle and match book were present,
and leading down the hallway into the den or TV room. It was apparent to him that gasoline had
also been poured on the Harolds bodies and around the den. He estimated that the fire
temperature was between 1600 and 1800 degrees.

He gave his opinion that the arsonist may have started pouring the gasoline on the rug in the
living room, then down the hallway, and ended up in the den where he poured gasoline on the
bodies and around the den. He left the gas can in the den assuming that it would be burned and
unrecognizable and returned to the living room. He then set fire to the beginning of the gas trail
and left through the front door.

He testified that he had watched Deputy Mark Flint make a drawing of the den which was an
accurate representation. The drawing was admitted into evidence and is as follows:

99

DIAGRAM OF DEN

100

There was a vigorous cross examination by defense counsel Albert Friend. The witness did
not change his opinion.

The next witness was Russell Forbes, a chemist for the Indiana State Police. He testified that
he had examined the sample of the fluid taken from the five gallon gas can and that it was
premium gasoline. There was no cross examination.

Sherrill Anspagh of the Indiana State Police then testified.

He also had examined the Harold house and stated that effective fingerprints could not be
taken because of the wet condition and soot.
He had searched Roberts gold and tan 1970 Buick Riviera automobile pursuant to a search
warrant. In addition to the registration to David James Roberts he found a hair fiber near the gas
pedal and turned it over to Ronald Eltzeroth of the Indiana State Police Crime Laboratory for
examination and comparison.

The next witness was Ronald Eltzeroth, an expert forensic scientist who worked in the
Indiana State Police Crime Laboratory.

He testified to examining and performing tests on various items turned over to him by
investigating officers in the Roberts case. No hair sample from Roberts had been turned over to
him. He did examine hair samples from the heads of William and Elizabeth Harold and pubic
hair from Elizabeth Harold. He had compared them to a human hair sample obtained from a pair

101

of black leather gloves found at the scene near the front door and the hair sample found in
Roberts car. They were not comparable. The hair sample on the gloves ranged in color from
brown to very black. He was asked by Mr. Gantz, Did the hair sample found on the glove bear
any characteristics similar to any particular race? The answer was, The hair maintained
characteristics of the negro race in that it had a very black, very course texture.
Mr. Eltzeroth further testified that he had examined the gas can and nozzle for latent
fingerprints. He stated, The prints found failed to exhibit a sufficient number of characteristics
to determine any identification.
He also examined for fingerprints a burned section of medical adhesive tape two inches wide
and the knotted neckties found near the bodies. No prints were found.
The cross examination by Mr. Jones was brief.
Q. Now, Professor-can I call you Professor?
A. Certainly.
Q. Are you going to tell us that that hair you found on that glove belonged to David Roberts?
A. No, sir, that was not my testimony.
Q. I didnt think it was either. I just wanted to make sure there wasnt any misunderstanding.
Thats all I have of this witness. Thank you Professor.

The next witness was Robert Forney.

He testified that he was a medical doctor and Professor of Toxicology at the Indiana School
of Medicine. He had examined blood samples of William and Elizabeth Harold taken at the
autopsies. He found no carbon monoxide in the blood indicating that they were dead before the

102

fire. He found no evidence of drugs. He found that the percent of alcohol in the blood of
William Harold was consistent with two beers and the percent of alcohol in the blood of
Elizabeth Harold was consistent with two ounces of whisky.
At the conclusion of this testimony I adjourned court for the day. I again allowed the jurors to
separate and admonished them as I had at the conclusion of the first day.
I thanked the jurors and told them to return the next day, November 12, at 8 a.m.

The trial jurors still have heard no evidence connecting Roberts to the burglary, arson and
murders. The next days evidence would attempt to connect Roberts to the crimes.
I wondered why the hair sample from the glove found inside the Harolds living room near
the front door was not compared to a hair sample from Roberts. This was before DNA but it
could have been determined that Roberts hair had many similar characteristics to the hair found
on the glove. There was no evidence that a hair sample had been obtained from Roberts or if
obtained and examined, what the results were.

103

16
The Trial-The States Evidence Day 3
November 12, 1975
At 8 a.m. the next morning, November 12, 1975, the cast again assembled and further
evidence was presented by the prosecutor.

Phillip Barrier and Rita Barrier were the first witnesses of the day.

They testified that they were good friends of the Harolds.


At approximately 8:30 in the evening of January 19, 1974, they stopped by the Harold house.
They went inside and visited for a few minutes with William and Elizabeth Harold (Billy and
Ann). They noticed no damage inside the house. They were familiar with the room partition and
stated that it was intact and standing up. The Harold children, Marie and Jenny, were at
Williams brothers house.
The four of them then went to the Regency Drive-In Movie Theater in Franklin. Phillip
Barrier was driving. After the movie they went to the Pizza Inn in Franklin. The boys split a
pitcher of beer and the girls had cokes.
Then they went to Green Acres Tavern in Franklin and arrived at about 2 a.m. The boys had
two beers apiece and the girls had one drink. They stayed there until about 2:45 a.m. They then
drove to New Whiteland and picked up the Barrier children.
Then they drove to the Harold house. They arrived there at about 3 a.m. or a little after that.
When they arrived at the Harold house the Harolds noticed that the porch light was not on. They
had turned the porch light on earlier and when they left the light was on.

104

William Harold went to the front door and Elizabeth Harold drove away in her car to pick up
their daughter Jenny.
That was the last time they saw William and Elizabeth Harold alive.
They further testified that William and Elizabeth were getting along that night and were not
arguing or fighting or anything like that.
There was no cross examination.

The next prosecution witnesses were Delores Buress and Patti Buress Regent, her now
married daughter.

They testified that at the time of the murders they lived about half a block from the Harold
house and that on the night of January 19, 1974, they had seen a goldish big car which was
between a 68 and 73 Buick, strange to the neighborhood, parked right across the street from
their house at 11 p.m. and also at about 2:15 a.m. the next morning. There was a street light right
next to the car. The car was facing away from the Harold house.
They said that cars were never parked where the goldish car was parked unless they were
coming to their house.
The car was gone when they were awakened at 4:30 a.m. by the fire truck sirens.
When shown a photograph of Roberts car Delores Buress stated that she did not get a good
look at the goldish car and Patti Regent said, I couldnt identify it positive.
Upon cross examination they stated that they had not seen anyone in or near the car.

Cindy Jenner, a teenage neighbor of the Harolds, testified next.

105

She stated that she often babysat for the Harolds and that on January 19, 1974, she had
babysat for them from 7 a.m. until they got home from work at 5:30 p.m. She also stated that the
hall wall clock was working and kept accurate time.
Also while at the Harold home she received a telephone call between two and four from a
male concerning some sort of survey. The caller wanted to know if the Harolds were home and
if not, when he could talk to them. She told him that they would be home by six oclock.
Cindy further testified that the Harolds returned home about 5:30 p.m. Later when being
driven to a ballgame by her father at 8 p.m., she observed that the porch light was on at the
Harold house. On her return home at about 12 a.m. the porch light was off, the hall light was on,
and the curtains pulled in the den at the Harold house. She said that the Harolds usually turned
the porch light on when they left the house and turned the internal lights off.
Upon cross examination, Cindy stated that she had not seen anyone at or near the Harold
house. She also stated that she could not identify the callers voice as that of Roberts since she
had never heard his voice.

During the testimony of the witnesses who lived in the Harold neighborhood, I made a time
line on my yellow note pad as to when the gold car was seen, when the porch light was on or off,
and when the Harolds were home. The time line was:

January 19, 1974


7-8 p.m. No parked gold car
8 p.m. Porch light on

106

8:30 p.m. Harolds leave home-porch light left on


11 p.m. Parked gold car seen
January 20, 1974
12 a.m. Lights on in den and porch light off
2:15 a.m. Parked gold car seen
3-3:15 a.m. Harolds arrive home-porch light off
3:15 a.m. Elizabeth Harold returns home with Jenny
4 a.m. Clock stopped from fire
4:30 a.m. Fire observed at Harold house-gold car gone

From the above time line it appeared that the driver of the gold car could have been parked
near the Harold house, observing or at the Harold house from 11 p.m. until 4 a.m. Perhaps the
driver left for awhile and was at the Waffle House between 1-2 a.m. looking for the Harolds (as
testified to later by Terry Harold) and then returned. All three Harolds were in the house from
about 3 a.m. until their deaths which, as to William and Elizabeth, was no later than about 4 a.m.

Winfred Buddy Harold next testified.

He testified that he was the brother of William Harold. He stated that that he was the operator
of a Standard gas station located at the intersection of U.S. 31 and Main in New Whiteland. The
station was about one mile from William Harolds house.
He stated that on January 19, 1974, he had three employees, his two brothers Terry Harold
and Elijah Junior Harold, and Joe Moore.

107

He further testified that in the late afternoon of January 19th at about 6 p.m. a black male in
his late 20s purchased $1.00 worth of gasoline for his car from attendant Joe Marcos Moore, 17.
He stated that the male had medium black skin, a medium afro haircut, a medium mustache, long
sideburns, and wore a black leather jacket. He was driving a 1969 or 1970 tan and gold Buick
Riviera. The car had no hubcaps and the driver side skirt was missing.
Winfred Harold later viewed several automobiles at the Indiana State Police Post and testified
that after looking at the 1970 Buick registered to David James Roberts that the car was the one,
or identical to the one he had seen at his gas station on the 19th.
He was asked by the prosecutor if the defendant, David James Roberts, sitting at the defense
table, was the person who had purchased the gas. Harold said he did not know.
Before cross examination of Winfred Harold, pursuant to the Motion in Limine, and before
me, Winfred was examined under oath by defense counsel out of the presence of the jury
concerning his alleged theft of Harold estate and guardianship funds. I ruled that there was not
creditable evidence of any such theft and that such matter could not be raised by defense counsel
upon cross examination.

Upon cross examination Winfred stated again that he could not now identify the defendant as
the person who had purchased the gas.

The defendant at the time of the trial had a short afro, no sideburns, no mustache and was
thinner than he had been in January of 1974.

108

Terry Harold was the next witness. He stated that he was working at the Harold gas station
at that time and verified Winfred Harolds testimony as to the description of the black person
who had purchased the gas. He stated that the vehicle at the gas station was like the one he had
seen at the State Police Post and registered to Roberts. He could not identify the defendant in the
courtroom as the person who had been driving the gold Buick. He said he did not get a really
good look at the driver.

Terry Harold then continued his testimony. He stated that at between 1:00 a.m. and 2 a.m. on
January 20th, the morning of the murders, he was at the New Whiteland Waffle House. Part of
his direct testimony states:
Q. Did you notice anything unusual at the Waffle House?
A. Yeah, I was waiting for my bill and there was a guy came in and looked around and he left
again.
Q. What did he look like?
A. He was colored and had a black leather coat on. He probably stood six feet. Maybe more.
He looked like the fella that I saw at the gas station earlier.
Q. OK. What drew your attention to this man?
A. Well, you know-I thought it was awful strange for a colored guy to just come in there and
look around and leave again. Well, I been goin there for about three or four years now and that
was strange-having some guy come in there, done that and just left. Also, there were no colored
that lived in New Whiteland or came to the Waffle House.

109

Soon after the murders, Terry Harold was shown six photos of African-American males
including Roberts and he stated that the photo of Roberts was very close to the person he had
seen at the Waffle House.

Terry also testified that he had been at his brother Williams house often and on many
occasions had observed water left in the bath tub even though no one was taking a bath.

Elijah Junior Harold was the next witness.

He stated that he also was working at the Harold gas station at that time and verified Winfred
Harolds testimony as to the description of the black person who had purchased the gas. His
description of the car was the same given by Winfred and Terry Harold. The car had no hubcaps
and a fender skirt was missing.

He also had viewed vehicles at the State Police Post and

testified that the car at the gas station looked the same as the one at the Police Post which was
registered to Roberts. He could not identify the defendant in the court room as the person who
had been driving the gold Buick.
He further stated that he was very close to his brother Billy and often stayed overnight with
Billy and Ann.

Billy and Ann were very close, got along very well and never had any

arguments. Billy had been a paratrooper in Vietnam.


Upon cross examination of Winfred, Terry and Elijah Harold, they stated that they were not
positive that the car was Roberts car.

The prosecutor then called Joe Moore to the stand. His testimony is as follows:

110

DIRECT EXAMINATION BY MR. GANTZ:


Q. State your name please.
A. Joe Marcos Moore.
Q. Okay. And where do you live, sir?
A. New Whiteland, Indiana.
Q. How old are you now?
A. Eighteen.
Q. Are you in anyway related to the Harolds of New Whiteland?
A. No.
Q. Now, drawing your attention to January 20, 1974, were you working at the Harold Service
Station that day?
A. Yes.
Q. Now, do you recall anything unusual that afternoon?
A. In what way?
Q. Did you see-ah-did you see any unusual cars?
A. No, not really.
Q. All right. Did you wait on any persons in a Buick automobile?
A. Yes.
Q. And do you recall any one sale in particular?
A. Yes, I do.
Q. All right. And when did this sale take place?
A. About 4 oclock in the afternoon.

111

Q. Okay. Now, did you sell some gas to someone?


A. Yes, I did.
Q. And is that your job to sell gas?
A. Yes.
Q. Did you make a sale of gas to this customer?
A. A dollars worth.
Q. What kind of gasoline was that?
A. Premium.
Q. Okay. And did you have an opportunity to look at this car?
A. Yes.
Q. And what was the appearance of this car?
A. You know-it didnt look-you know-in real good shape or anything.
Q. Did you have an opportunity to see the color of this automobile?
A. Yes. It was a brownish gold color with a vinyl top.
Q. And what kind of an automobile was this?
A. It was a Buick Riviera-about a 68 or 9.
Q. Did you have an opportunity to observe the driver of this automobile?
A. Not real close, no.
Q. Well, do you-is there anything at all that you can say as a description of this customer?
A. Just that he was a black man.
Q. Can you say if he was a large man or a small man.
A. Well, he never got out of the car-you know-but he didnt sit to the shoulder though-you
know-just kinda-Id say about 6 1 or so-you know-the way he sat in the car.

112

Q. After the 20th did you have occasion to view any cars at the Indianapolis State Police Post?
A. Yes, I did.
Q. Did you individually?
A. Yes.
Q. And, did you see any cars that you recognized?
A. Maybe.
Q. And what car did you recognize?
A. A Buick Riviera.
Q. Well, Mr. Moore, was this the same Buick Riviera that you saw in the station the afternoon
of January 19, 1974 that you put gas in?
A. Im not sure. It probably was.
Q. Now, back to the gas station. How long did it take you to put gas in the car?
A. Not very long at all.
Q. Okay. And then what did you do when you put the gas in the car?
A. I put the cap back on and he gave me a dollar.
Q. Okay. Was that the end of the transaction?
A. No.
Q. Well, what else took place?
A. Well, after he gave me the dollar, he asked me ifMR. JONES: Just a moment. I want to preserve my record on this. We object to any statements
made by a third party declarant outside this courtroom and not subject to cross-examination.
This is clearly hearsay.
THE COURT: Objection is overruled-you may answer.

113

Q. What took place at this time?


A. Well, he gave me a dollar and as I was walking back toward the building he asked me if I
knew where Pine Drive was.
Q. And what did you tell him?
A. I just pointed that direction and gave him what streets to turn on.
Q. Is Pine Drive the same street that William and Elizabeth Harold lived on?
A. Yes it is.
MR. GANTZ: Thank you Mr. Moore. No further questions.
CROSS EXAMINATION BY MR. JONES:
Q. A few questions, Marcos. How was this man in the automobile dressed?
A. Ah-well, I dont remember of him having a tie, and I dont remember him being real sloppyyou know.
Q. Is it a safe statement to say that you really dont know at this point anything except he didnt
have a coat and tie on?
A. Yes.
Q. Now think very carefully Marcos. Was the man who bought the gas the defendant David
James Roberts?
A. I dont know. I did not get a good look at him.
MR. JONES: Okay, Marcos, thats all I have.
MR. GANTZ: No further questions.
At the conclusion of this testimony I adjourned the court for the day. I again allowed the
jurors to separate and admonished them as I had at the conclusion of the first day.
I thanked the jurors and told them to return the next day, November 13, at 9 a.m.

114

The jurors have begun to hear some evidence possibly connecting Roberts to the burglary,
arson and murders. A gold car was seen the evening and early morning of the murders parked
very near the Harold house, a gold or tan 1970 Buick Riviera driven by a black man the late
afternoon before the murders was at the Harold service station, the driver had asked directions to
Pine Drive where the Harolds lived, and the car was like the one registered to David James
Roberts. No witness could identify Roberts as the person who had asked directions to Pine
Drive. The next days evidence would attempt to further connect Roberts to the crimes and
provide a possible motive.

Tom Jones and David talked briefly on the front steps of the courthouse. They were
encouraged by the days testimony.

115

17
The Trial-The States Evidence Day 4
November 13, 1975

At 9 a.m. on November 13, 1975, court was again called into session. All parties and counsel
were present. Further evidence was presented by the prosecutor.

The first witness called to the stand was Lt. Robert Allen of the Indiana State Police. He
was the chief investigating officer of the Harold murders.

Lt. Allen testified that he had interviewed Harold family members concerning the personal
and business lives of William and Elizabeth Harold. He was advised that William Harold
worked at an Indianapolis Sears Roebuck in the automotive department. On October 10, 1973, a
scheduled day off for William Harold, he was called in to work for another sick employee.
Further investigation revealed that on that day he sold and had installed three tires and some
muffler work done on a car for a black male in his late 20s using the name Robert Johnson. The
purchaser drove the car away without paying for the tires or muffler work. The purchaser was
later picked out by William Harold from a series of photographs. The photograph was of David
James Roberts.

The next witnesses were Dale Fleetwood, service manager at the Indianapolis Sears, and
Floyd Huckleberry, assistant manager at Sears.

116

They testified that William Harold worked under their supervision and that they had an
October 10, 1973 sales slip and work order signed by William Harold as the salesman which
named a Robert Johnson as the purchaser for three tires and muffler work. The sales slip and
work order contained the serial numbers of the tires, indicated that it was to be a cash transaction
and that such work had been performed. At the end of the day the car keys had not been picked
up, the purchase price had not been paid, and the car was gone.
They reported the apparent theft to the security officer at Sears, Jerry Quackenbush.
The sales slip and work order were then admitted into evidence and shown to the jury. The
purchasers name was Robert Johnson of 3357 Meadows Court and the total was $320.88. The
serial numbers of the tires and the fact that the vehicle was a tan 70 Buick was also shown.

The prosecutor called Jerry Quackenbush as the States next witness.

He stated that in October of 1973 he was a security officer for Sears and Roebuck in
Indianapolis and a police officer of the City of Indianapolis. He had eleven years experience in
criminal investigation. He had participated in the investigation of a theft of tires on the 10th of
October, 1973 at the Indianapolis Sears Roebuck automotive store and service station.
He stated that he was the officer who had shown several photographs to William Harold and
that William Harold had picked out the photograph of David James Roberts as the person who
had ordered the tires and muffler work.
Officer Quackenbush was then asked how he knew the person in the photograph was
Roberts. He answered that he had found the identity from police records. This answer took
defense counsel by surprise and he immediately objected on the basis of hearsay and the best

117

evidence rule (that the actual photographs should be shown at trial to the witness). I overruled
the objections and allowed the answer to stand. The proper objection should have been that the
answer from police records indicated that Roberts had a criminal record and that evidence of a
defendants past crime is highly prejudicial and inadmissible. At the omnibus hearing I had
ordered the prosecutor and any of his witnesses not to refer to or mention anything that would
indicate a previous criminal record of Roberts. Defense counsel was in a bind though. If he
objected to the from police records statement by officer Quackenbush for the proper reason, he
would just be emphasizing to the jury that there was a police record.
Officer Quackenbush also testified that he had checked out the address on the sales slip and
no one had ever heard of Robert Johnson at that address. It was a false name and address.
He next was asked by the prosecutor:
Q. And what did you do next?
A. I went to the parole office to find out where Mr. Roberts lived and where he was employed.
MR. JONES: Your Honor, does-now wait a minute. No objection yet.
Again defense counsel was taken off guard. Pursuant to my previous order the witness should
have been instructed by the prosecutor not to refer to any inquiry at the parole office. This
definitely would call to the attention of the jury that Roberts was on parole. This was highly
prejudicial. A person is not on parole unless he has committed a serious felony. If Mr. Jones
had objected, I would have immediately sustained the objection and would have instructed the
jury to disregard the fact that officer Quackenbush had inquired at Roberts parole office. A lot
of good that would have done. Once the cat is out of the bag- - -.

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Sometimes a police witness will try and help the prosecution by slipping something into their
testimony. Probably in this case it was inadvertent. I assumed that officer Quackenbush had
been instructed by Mr. Gantz not to make any statement which would indicate Roberts previous
record. I called the attorneys to the bench for a private conversation and told Mr. Gantz that,
except if Roberts testified or except in phase two of the trial, if any prosecution witness ever
again made any reference to the previous criminal record or parole of Roberts that it could lead
to a mistrial if requested by the defense. I adjourned court for a few minutes so that Mr. Gantz
again could privately instruct his witness concerning any reference to Roberts criminal record or
parole.

Officer Quackenbush then described going to Roberts employers office and viewing a
bronze 70 Buick Riviera registered to David James Roberts. He compared the serial numbers
on the three tires on the Buick to the serial numbers on the work order and they matched.

On October 19, 1973, he later arrested David James Roberts pursuant to a charge of
misdemeanor larceny (theft) filed in the Indianapolis Municipal Court. If convicted, Roberts
could be sentenced to one year in prison and fined $5,000.00. Roberts posted bond and was
released from custody. After several trial date settings and continuances, the final trail date was
set for February 8, 1974.

Officer Quackenbush then identified the defendant sitting in the courtroom as the same person
he had arrested on the larceny charge.

119

The next witness prosecution witness was Deidre Edwards.

She testified that she was a Court Reporter and that on request of the attorney for David
James Roberts, Harold Chavis, she reported a written sworn Deposition given by William Harold
on January 15, 1974. Present at the Deposition were William Harold, the deponent, Harold
Chavis, attorney for David James Roberts, and Joseph Karen, an intern with the Marion County
Prosecutors Office.

In the Deposition, William Harold described the entire transaction

concerning the theft of tires and positively identified David James Roberts as the person who had
ordered the tires and muffler repair.

The Deposition was offered in evidence and defense counsel strongly objected. He claimed
that defendant would have no opportunity at trial to cross examine William Harold as he was
deceased. How could defendant show any racial bias of William Harold? How could he bring
out that William Harold was not sure of the identification? How could he show that William
Harold had not dealt with many black men and therefore was not good at identification of them?
Were black faces confusing to him? How could he show that William Harold had a motive to
make a quick identification in order to get his sales commission?
I overruled the objection and admitted the Deposition into evidence. The Deposition was then
read to the jury by the prosecuting attorney.

Trial of David James Roberts was of course never held as the primary witness, William
Harold, was murdered on January 20, 1974, five days after his deposition identifying Roberts
and nineteen days before the final trial date.

120

The jury had now heard evidence concerning a possible motive for Roberts to kill William
Harold, the sole witness against him in the theft charge. The jury also had heard testimony that
Roberts was on parole. A theft conviction would violate Roberts parole and possibly lead to the
imposition of a prison term for parole violation in addition to whatever sentence would be
imposed on the theft conviction.

The next witness called by the prosecution was Indiana State Police Lieutenant Robert Allen.
He had testified before.
He stated that he was the chief investigating officer in the Harold murders and in that capacity
had interviewed 41 residents who lived in the vicinity of 915 Pine Drive. He also prepared and
distributed 1000 copies of a flyer in an attempt to locate the source of the gas can found at the
scene. The flyers were distributed on January 26, 1974, to police departments in New Whiteland
and Indianapolis.
As a result of the flyer, he received information concerning the sale of a similar gas can by the
Renkite Shell gas station in Indianapolis on January 19, 1974, the afternoon before the murders.
At the Shell station he interviewed the owner, Elwin Renkite, and two employees, William
Hardy and Richard Roman.
A copy of the flyer was then admitted into evidence.

121

REFERENCE: ISP Case # 44F7882


Johnson County 7436
Arson and Homicide 1-2044

Attempt is being made to locate source of 5 gallon gasoline


can at scene. Markings on can suggest it may be a "loan
out" or "deposit" can.
Can pictured, replica of one in question and is as follows:
Five 5 gallon capacity, red in color, with yellow word
''GASOLINE" in approximately
2" letters. In smaller letters NAPA, Alcamp, Indiana USA.
Stock # 14-1872, can has yellow plastic air valve, white plastic on
handle and approximately 2 1/2' spout bears yellow crayon
markings on side: "$5.00 this can" Request checks be made
with stations to determine if they are missing red, 5 gallon can
only in past two (2) months.
Any further information contact: Det/Sgt. R. L. Allen, Indiana State Police

122

Lt. Allen then stated that, pursuant to an arrest warrant, he had arrested David James Roberts
on January 26, 1974, in Indianapolis and taken him to the Johnson County jail. Roberts had a
pistol with him when arrested. Upon arrival at the jail Lt. Allen read the Miranda Rights to
Roberts, allowed Roberts to read his rights, and asked him to sign the form acknowledging that
he understood his rights. Roberts Preferred Not to Sign the form.
Lt. Allen further testified that at that time Roberts appeared to understand his rights, was not
under the influence of drugs or alcohol and made no complaints of a medical nature.
Roberts did not request an attorney at that time and stated that he was willing to answer
questions.
The Miranda Rights Form was admitted into evidence.

123

124

CONTINUATION OF DIRECT EXAMINATION OF LT. ALLEN BY MR. GANTZ:


Q. And did you have conversations with Mr. Roberts after the reading of the rights?
A. Yes, sir.
Q. And what were those conversations?
A. I made inquiries as to his activities particularly on the dates of January 19th and January
20th, 1974. He answered that on January 19th at sometime between twelve noon and 1:00 p.m.
he had went to Ayr-Way East, which is located in Indianapolis, and purchased points and plugs
for an automobile. Then he purchased five or six dollars worth of gas at a Shell filling station
across from Ayr-Way.
Q. Did you have other conversations?
A. Yes. I asked him what he did after 1:00 p.m. He advised he was working on an automobile
behind the residence of Callie Loraine Myers, which is on Kingston Street, and behind her
mothers house, at 604 Taft Road. Callies mothers name was Florence Loraine. He worked on
the car until the conclusion of the U.C.L.A. Notre Dame basketball game.
Q. What other conversations took place?
A. I asked him who he might have talked to while at the residence. He said he had talked to
Callie Myers, her brother LeRoy Loraine, and he had a brief conversation with her brother
Dewey Loraine. I asked Roberts what he did after the ballgame and he said he left the Loraine
residence to test drive his automobile. He said that at about 6:00 p.m. that evening he and LeRoy
Loraine had went to Mandarin Inn, Indianapolis, a Chinese restaurant, and obtained some
carryout food and returned to the Loraine residence where that food was consumed. I asked him
who was present at that time and he stated that Callie Myers, Mrs. Florence Loraine, and LeRoy
Loraine were present at the meal.

125

Q. Were there other conversations?


A. Yes. He said that after the meal he was at the Loraine residence watching television with
LeRoy Loraine, and that at approximately 10:00 p.m. on that evening he went to Rudys Liquor
Store and purchased a half pint of vodka and some Colt 45, returning to the Loraine residence
and watching TV and drinking those beverages with LeRoy until approximately 1:30 a.m.
Q. Were there any other conversations?
A. Yes, sir. I asked him his whereabouts after 1:30 a.m. He advised that he then returned to the
Fall Creek Y.M.C.A where he was staying and upon arrival inquired of the switchboard operator
if he had any calls. He then retired. He further stated that he arose the next morning at
approximately 6:00 a.m., having went to sleep with the window open, awaking cold. He went
out into the hallway and called the switchboard again inquiring if there had been any calls for
him. He then went back to sleep until approximately 8:00 a.m. on the morning of the 20th. He
said he dressed and proceeded to the Loraine residence and did have the noon meal at the
Loraine residence.
Q. Were there any other conversations at that time which you recall?
A. Yes. I asked him if anyone else had used or borrowed his Buick Riviera over the weekend of
the 19th and 20th. He stated that he was the only one to use the car.
Q. Any other statements by Mr. Roberts?
A. Yes, sir. Roberts asked what this was all about. There were conversations regarding the
charges he had been arrested for, as to the location of the alleged crime, and as to who the victim
was. There were conversations regarding a deposition which had been taken the proceeding
week. I asked him if he was aware of the deposition being given, he answered, Yes. I asked

126

him if he was aware of the individual who had given the deposition and he referred to the
individual several times as a fellow named Harris and once as Harold.
Q. Were there any other conversations?
A. Yes, sir, there were. David Roberts made the statement that, I have not murdered anyone
and I would be willing to take a polygraph on that particular subject matter. I advised him that
it was unlikely that I could arrange a polygraph that particular evening and that if he was
interested we could accommodate him on a polygraph.
Q. In the twenty-two months since that time has he or his attorney ever asked for a polygraph?
A. No, sir.
Q. Did you take certain mileage measurements?
A. Yes I did. The mileage from the Loraine residence to the Harold service station was 25
miles, from the Harold service station to the Harold house on Pine Drive was 1.1 miles, and from
the Harold house to the Waffle House was .4 miles.
Q. Did you subsequently contact the Loraines and employees at the Fall Creek Y.M.C. A. to
attempt to verify the statements of Roberts as to his whereabouts on the 19th and 20th of
January, 1974.
A. Yes, sir, I did.

CROSS EXAMINATION BY MR. JONES:


Q. Lieutenant, in your interviews with the 41 residents on or near Pine Drive did anyone say that
they had seen the defendant, David James Roberts at any time on January 19th or 20th, 1974?
A. No, sir.

127

Q. Now Lieutenant, as the chief investigating officer, how many gold or tan 1970 Buick Riviera
automobiles did you find that are registered in Indiana?
A. I have no idea.
Q. Well then, how many in Marion County and Indianapolis?
A. We did not check that.
Q. Do you suppose that there are at least one hundred?
A. Probably not that many.
Q. OK, how about fifty?
A. I told you. We did not check.
Q. No. You did not check. Great police work Lieutenant. Thats all I have of this witness.
RE-DIRECT EXAMINATION BY MR. GANTZ:
Q. How many gold and tan 1970 Buick Riviera automobiles with the hubcaps and a fender skirt
missing are registered in Marion County?
A. I only know of one-Roberts
There was no further direct or cross examination of this witness.

All of the previous witnesses were white. The next six witnesses will testify concerning their
knowledge of the whereabouts of David James Roberts on the 19th and 20th of January, 1974.
They were all African-American.

The next witness was Florence Loraine.


She testified that she lived on Taft Road in Indianapolis and that she had three children, Callie
Loraine, LeRoy Loraine and Dewey Loraine. Her daughter Callie lived next door. She knew

128

David James Roberts. Until about three or four days before January 19, 1974, he had been living
at her daughters house.
When asked if she saw Roberts on January 19, 1974, she replied, Well, truthfully, I dontIm pretty sure that I saw him that day-you know. I dont remember what time I saw him that
day or what he was doing. When asked if she saw Roberts on January 20, 1974, and was he
there for a meal, she replied, Yes, I did. I could not tell you exactly what time, but I saw him.
He was not there for a meal.

The next witness, Dewey Loraine, stated that he had been to his mothers house briefly in the
afternoon of January 19, 1974, and had seen Roberts there. He did not remember the exact time
but he thought it was about 2:30 p.m. He did not see Roberts at any other time on January 19th
or 20th.

The prosecutor then called LeRoy Loraine to the stand. According to the testimony of Lt.
Allen, Roberts had told him that Roberts was at Florence Loraines house watching television
and having a few drinks with LeRoy Loraine from after dinner on the 19th until about 1:30 a.m.
on the 20th, except for a brief trip to the liquor store at approximately 10 p.m.
LeRoy Loraine testified that he knew David James Roberts and that Roberts had been the
boyfriend of his sister, Callie. He identified Roberts in the courtroom. LeRoy lived at his
mothers house in January of 1974 and his fiance was Veronica, his present wife. He saw
Roberts working on his car in the back yard sometime in the morning of January 19, 1974. He
also saw Roberts at his mothers house watching the U.C.L.A.-Notre Dame basketball game in
the living room at about 2-3 p.m. He remembered having take-out Chinese dinner between 6-7

129

p.m. with Roberts, Florence, Callie and Veronica. After dinner he went into the den with
Veronica and did not see Roberts again that evening. He thinks that Roberts left the house by the
10 oclock news. LeRoy went to bed at about midnight and Roberts was not at the house. He
stated that he had not been watching television and drinking with Roberts that evening. He had
been with Veronica. He saw Roberts sometime on the 20th but could not remember when.

Upon cross examination LeRoy stated that he was not absolutely certain of the dates. He
testified, I am pretty sure. It has been twenty-two months ago, you know, but I do remember
the basketball game and the Chinese takeout

Veronica Loraine then testified.

She stated that she was at the Florence Loraine house the afternoon and evening of January
19, 1974, with her fianc LeRoy. The only times that she remembered seeing Roberts at the
house was when he was watching the basketball game at about 2 p.m. and when they all had
Chinese food together at dinner. After dinner she and LeRoy were in the den and did not see
Roberts after that. She and LeRoy came out of the den at about 11:30 p.m. to 12:30 a.m. and
Roberts was not in the house.

The next witness was Callie Loraine Myers.

She testified that on January 19, 1974, she lived next door to her mother, Florence. She knew
David James Roberts and identified him in the courtroom. She stated that Roberts was her boy

130

friend and he had lived with her for about five months. He had moved to the Y.M.C.A. several
days before the murders. The prosecutor asked her if she knew that Roberts had been married
and had a small child. Callie appeared to be stunned. She whispered, No. The prosecutor
asked her to speak up so that the jury could hear. She said in a firm voice, I dont believe it.
Roberts had not told Callie that he had been married and had a one year old daughter.
Callie further testified that on January 19, 1974, she saw Roberts from noon until 3:15 when
she noticed that his car was gone. She had watched the ballgame with him. She saw Roberts
again between 5:30 and 6 p.m. at her mothers house and they ate Chinese later at about 6:30
p.m. with the family. She left her house to go out with a girl friend at 8:30 p.m. and that was the
last time she saw Roberts that day or night. She returned to her house about 3 a.m. She saw
Roberts at about 10 a.m. on the 20th.
On cross examination, she stated that Roberts had told her about the theft charge and David
was cool about it. He knew nothing was going to happen. He had passed a lie detector test and
his attorney had told him that the case was going to be dismissed. He was not upset about the
case at all.
She further stated that when she saw Roberts at about 10 a.m. on Sunday the 20th, he acted
normally and was not excited or upset. He was relatively calm. He was just like he was on all
days.

The final witness of the day was Juanita Richard, the Fall Creek Y.M.C.A. desk clerk.

She testified that she had worked at the Fall Creek Y.M.C.A. for ten years and that she was
the desk clerk. The desk clerks duties were to open the door and register anyone in if they

131

come, and answer the telephone. Her hours were twelve at night until eight in the morning.
Pursuant to the rules she always locked the only entrance door at twelve oclock midnight and
unlocked it between 5:30 and 6 a.m. The door was not locked during any other time of the day.
She stated that she was employed and working her regular shift on January 19 and 20, 1974. She
did not remember a David Roberts living there at the Y.M.C.A. Within a week after the murders
she was shown a photograph of David James Roberts by a police officer and asked if she
recognized that person. She said that she did not. She also was asked, The picture that was
shown to you, do you remember at that time whether you had left this person in between the
hours of midnight and 6 a.m. on those dates? Her answer was, I dont think so.
Upon cross examination she stated that she was not positive that she had locked the door that
night but she usually did because she was supposed to. It had been a long time age so she was
not positive she worked those dates but she thought so.

She had stated that it was her duty to register anyone whom she let in. I wondered why the
registry book was not offered into evidence.

At the conclusion of this testimony I adjourned court for the day. I again allowed the jurors to
separate and admonished them as I had at the conclusion of the first day.
I thanked the jurors and told them to return the next day, November 14, at 9 a.m.

Today the jurors heard evidence that Roberts had been arrested on a Sears misdemeanor theft
charge which was still pending when William Harold was murdered, that the sole witness who
could identify Roberts as the tires purchaser was William Harold, that Roberts had been arrested

132

on the Harold murder charges, that after his arrest he gave a voluntary statement to the police as
to his whereabouts on January 19 and 20, 1974, and that important parts of his statement were
not verified and in some cases contradicted. The next days evidence would be crucial to the
prosecution. The prosecution would attempt to prove that in the late afternoon of January 19,
1974, Roberts had purchased the red five gallon gas can found in the Harold house. The
prosecution had failed to do this at the bail hearing.

133

18
The Trial-The States Evidence Day 5
November 14, 1975

On November 14, 1975, at 9 a.m. the next morning the trial continued. Charles Gantz
informed me and Tom Jones that the states evidence would conclude that day. That would work
out well as it was Friday and the court would be in recess over the weekend. The jury could rest
up a little. On Monday, the defense could present evidence.

The next three witnesses were African-American.

The first witness called to the stand was Elwin Renkite. He stated that in January 1974, he
was the owner of Renkite Shell Station at the corner of 16th Street and Meridian in Indianapolis.
It was in an African-American neighborhood. At that time William Hardy and Richard Roman
were his employees.

He further testified that he knew David James Roberts. He had been a good customer for
over a year. Upon direct examination the following testimony was given.
Q. Do you think you could indentify him here in the courtroom?
A. Im not real sure that I would-possibly.
Q. Well, is that person in the courtroom?
A. I wouldnt say yes. I would say possibly.
Q. Youd say possibly?

134

A. Possibly.
Q. And who might the person be who possibly could be David Roberts?
A. This man sitting here.
Q. Which man, sir?
A. The colored fellow right here-there. (The witness pointed to the defendant)
There was no further testimony from this witness.

William Hardy was next called as a witness for the prosecution.

He was about five feet two inches tall and very thin. He was the most nervous witness I had
ever seen. His legs shook during his entire testimony. I had to ask him several times to speak
louder.
William Hardy testified that he worked at the Renkite Shell Station at the corner of 16th and
Meridian Streets in Indianapolis. That at between 5:30 and 6 p.m. on January 19, 1974, a black
male in his late 20s, driving a 1970 tan and gold Buick Riviera, came to the Shell station. He
stated that he washed the windshield of the car. The customer then purchased from Richard
Roman, a fellow employee, some gas for the car. Also the customer obtained from Renkite Shell
a five gallon red gas can with $5 DEPOSIT ON THIS CAN marked in yellow crayon on the
side. At the customers request, the can was filled with ethyl gasoline by Richard Roman. He
stated that previously he, William Hardy, personally had written in yellow crayon $5 DEPOSIT
ON THIS CAN and his name on the gas can.
He was shown the five gallon gas can found at the Harold house which had been previously
admitted into evidence and identified it as the one loaned to the black customer. He stated that

135

he could see his own handwriting on the can. He said that the gas can had never been returned to
Renkite Shell.
He stated that he knew David James Roberts and that he had been a regular customer of
Renkite Shell. He further testified that he recognized the defendant in the courtroom as David
James Roberts but that he was thinner now, did not now have a mustache as he had before, and
his afro haircut was longer then.
He stated that the vehicle being driven by the person who had purchased the gas for his car
and obtained the gas can was exactly like the car that Roberts had always driven in the past.
He also stated that the man in the car was David James Roberts.
Cross examination and re-direct examination followed.
CROSS EXAMINATION BY MR. JONES:
Q. Mr. Hardy, is the Renkite station in a predominately black area?
A. Yes sir, right, yes, sir, about 9/8 of our customers is black.
Q. Now Mr. Hardy, do you remember being down in Johnson County and testifying in court at a
bail hearing over a year ago?
A. Yeah.
Q. Now do you remember me asking you at that hearing if you would point out the man that
borrowed that gas can from you on January 19, 1974? Do you remember that question?
A. Uh Huh.
Q. Do you remember that you were sworn by the judge to tell the truth?
A. Yes.
Q. And did you swear to tell the truth?
A. Yes.

136

Q. And do you remember tellin the judge and me and everybody else in the world that the man
who borrowed the gas can was not in the courtroom that day?
A. Yes, sir, I did.
Q. And isnt that the man that was in the courtroom that day? (pointing to the defendant David
James Roberts)
A. Yes, sir.
Q. You know David James Roberts dont you?
A. I think I do.
Q. Is this the man that borrowed the gas can from you, or do you know?
A. Im just gonna tell ya, I just dont know. I did not get a good look at him.
RE-DIRECT EXAMINATION BY MR. GANTZ:
Q. You testified that you had dealt with David James Roberts several times at the Renkite
station.
A. Oh, yes, I have.
Q. Now, I want you to get down from the stand for a moment. I want you to get a good look
and I want you to tell me-is this the man who got the red gas can from you recognizing the
differences? (William Hardy left the witness box and stood right in front of the defendant) Is
this David James Roberts right here? (the prosecutor points directly at Roberts)
A. It is.
Q. And that is the man that bought the can, is that correct, or got the can from the station?
A. Right, yes, correct.
FURTHER CROSS EXAMINATION BY MR. JONES:
Q. Well, now, didnt you just tell me this isnt the man?

137

A. I dont know-Im all mixed up, man.


Q. Now, Mr. Hardy, David Roberts is on trial for first degree murder and its becoming very
evident that whoever purchased this gas can has a problem, and I want you to know, or want to
ask you, sir, is this the man-can you say beyond a reasonable doubt that this is the man who
purchased or got that gas can from you on January 19, 1974?
A. I just-I tell ya I just dont know.

There were no further questions by Mr. Gantz or Mr. Jones. The witness was excused. He
hastily left the courtroom.

The next witness for the state was Richard Roman.

He stated that he was an employee of Renkite Shell on January 19, 1974, and his duties were
to pump gas and run the wrecker. He testified as follows:
Q. Have you ever done business with David James Roberts?
A. Yes.
Q. Could you look around the courtroom and see if you could find this person that you know as
David James Roberts?
A. I see-this fella looks like David Roberts-right here in the blue coat. (The witness points at the
defendant)
Q. Now, sir, on January 19, 1974, did you have occasion to wait on David James Roberts?
A. Yes, sir, I did. I sold Mr. Roberts some gas for his car and in a can.
Q. What kind of an automobile was it he was driving?

138

A. It was a 1970 gold Buick Riviera.


Q. Did he have his own gas can?
A. No. We had a five gallon gas can that we had taken in and I let him have this can.
Q. Was there a deposit on this can?
A. Yes, sir. There was a $5.00 deposit on the can. He gave me his check for $5.00 as deposit
and paid for all of the gas in cash.
Q. Was the check written on the 19th of January, 1974?
A. Yeah.
Q. Now sir, did you put gas in the gas can?
A. Yes. I filled it up.
Q. Did the gas can have a pour spout?
A. No. I got one off a two gallon can and put it on the five gallon can.
Q. And what did you do with the five gallon gas can?
A. I put it right down next to his car. Then I left to go and ring up the sale and thats the last
time I seen the can.
Q. Do you know if that can ever returned to the station?
A. No, it didnt.
Q. Ill show you what has been marked as States Exhibit #91 (the gas can found at the Harold
house) and ask if you could recognize this can, sir?
A. Yes, I recognize the can as the one I gave to Mr. Roberts.
Q. You can recognize the can?
A. Its definitely the can.
Q. How do you know, sir?

139

A. It says $5.00-there is part of the D-deposit. It says O-N (on) this. This is Bill Hardys
writin.
Q. And this is the same can that you put next to Mr. Roberts car?
A. Yes.
Q. Okay. Now, sir, you have testified at a previous bail hearing in Johnson County in which
you failed to identify David James Roberts, is that correct?
A. Yes, sir.
Q. And does Mr. Roberts look different today than he did at that time?
A. Yes indeed. When I sold the gas to him he had a mustache, his haircut was a little fuller than
what it is now, and he is slimmer now.
Q. Are you absolutely certain that this is David James Roberts (pointing to the defendant), the
man that you sold the gas to, the man that got the can, the man that wrote you the check for $5.00
on January 19, 1974?
A. Yes, sir.
CROSS EXAMINATION BY MR. JONES:
Q. Now, lets get back to the bail hearing, Mr. Roman. At that time you told the court that it
was not David Roberts that bought or borrowed a gas can from you-did you not say that?
A. Right.
Q. Your memory was fresh then, wasnt it.
A. I guess so.
Q. Were you sworn to tell the truth at the bail hearing?
A. Yes.
Q. Did you lie before God then or just now?

140

A. I have just told the truth. It was Roberts who got the can. I am not proud of my testimony at
the bail hearing but I was scared to death. He had just murdered a witness against him.
Tom Jones jumped to his feet. Objection, Your Honor. His answer was unresponsive and
very prejudicial. I move the court to strike the last statement and admonish the jury not to
consider it.
THE COURT: Objection sustained. The jury will not consider as evidence the last statement of
the witness.

I could have admonished the jury by saying, The jury will disregard and not consider the
witnesss last statement that Roberts had just murdered a witness against him. I cautiously did
not do so. Some pro-prosecution judges would have.

Q. Now, Mr. Roman, could you be incorrect on the date of January 19th about the business
about the gas can?
A. Could not be any other date.
There was no further direct or cross examination of Mr. Roman.

The State then called Edward Sheets as the next witness.

He testified that he was the Operations Manager at Midwest National Bank in Indianapolis.
His position included having custody of bank records. He stated that David James Roberts had
an account with his bank. At the request of the prosecutor he had brought accurate copies of all
checks cleared by his bank written by David James Roberts for January and February 1974. He

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was asked if he had an exact copy of check number 205. He answered yes and produced the
check.

The check was numbered 205 and was drawn on the Midwest National Bank of Indianapolis.
It was dated January 19, 1974 and in the amount of Five Dollars. It was payable to the order of
Renkite Shell. The check had DAVID J. ROBERTS printed on the top and was signed David J.
Roberts. The check was offered and admitted into evidence.

The next witness for the prosecution was Douglas Buck. He stated that he was a Captain in
the Indiana State Police and in charge of the Questioned Documents Section. He had over
seventeen years experience examining and comparing handwriting.
He stated that he had examined check number 205 allegedly written by David James Roberts
to Renkite Shell for $5.00 on January 19, 1974, and compared it with known exemplars of the
writing of David James Roberts. Before he was asked to give his opinion, Mr. Jones on behalf of
the defendant stipulated that the check was written by David James Roberts. The witness was
thanked and excused.

Charles Gantz then called Laurence Phillips as the states next witness.

Laurence Phillips stated that he was a detective sergeant with the Indiana State Police and
that he was a crime scene reconstruction specialist. He testified as to his training and experience.
He continued with his testimony as follows:

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Q. Mr. Philllips, have you examined the exhibits introduced at this trial and read the
investigation report prepared by Lieutenant Robert Allen, the chief investigating officer?
A. Yes, I have.
Q. And assuming that the materials and information that you have received are accurate, do you
have an opinion as to what happened at the Harold residence in the morning of Sunday, January
20, 1974?
A. Yes, I do.
Q. And what is that opinion?
A. It is my opinion that William and Elizabeth Harold left their house at approximately 8:30 on
Saturday, January 19, 1974, with their friends and returned at approximately 3 a.m. on January
20, 1974. William Harold went into the house. Elizabeth Harold left in the family car to pick up
their daughter, Jenny, who was with a baby sitter. The murderer had probably been watching the
house for some time and had sometime before midnight unscrewed the front porch light bulb to
prevent being seen when he entered and left the house. After William Harold had gone into the
house, the murderer then entered the house through the front door which was unlocked in
anticipation of the return of Elizabeth Harold. The murderer was wearing leather gloves and
may have hidden the gas can filled with gasoline outside the front door. William Harold then
confronted the intruder and a struggle ensued in the living room and hallway. The intruder may
have had a gun. William Harold was subdued and then strangled to death. His body was
dragged into the den. Shortly thereafter, Elizabeth and Jenny returned to the house. The intruder
hid until Jenny was placed in her crib. Then the intruder attacked Elizabeth and subdued her.
Her wrists were bound with duct tape and her mouth was covered with duct tape. Her clothes
had been removed. She was probably raped and then strangled to death with several mens ties

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fastened together. Her body was dragged into the den. The murderer then retrieved the gas can
and placed it in the living room near the front door. He then removed the gas can spout,
removed his gloves, placed matches on the floor and poured gas from near the front door to the
den and on top of the bodies. Clothes from the nearby closet were piled on top of the bodies. At
approximately 4 a.m. the fire started. I have no opinion as to why the gas can was left in the den
and the gas can spout, matches and gloves were left near the front door. Perhaps the murderer
then lighted the gasoline near the front door, watched as the flames followed the gas trail to the
den, and then fled believing that the can, spout, matches and gloves would be burned and
untraceable. The two to three gallons of gas found remaining in the gas can indicates that
perhaps when the murderer was pouring gas onto the bodies gas vapor had spread to the pilot
light of the gas hot water heater and a small explosion and subsequent flash fire erupted forcing
him to immediately flee leaving the possible evidence behind. The front door was found open.
Q. Thank you detective Phillips. I have no further questions of this witness.
CROSS EXAMINATION BY MR. JONES:
Q. I just have a few questions detective. You were not there at the Harold house on that
Saturday night or Sunday morning, were you?
A. No.
Q. You dont mean to tell the jury that the intruder was the defendant, David James Roberts, do
you?
A. No.
Q. In fact you have no idea who the intruder was, do you?
A. I have no idea.
Q. You dont know really what happened, do you? It is just your guess.

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A. It is my expert opinion based upon the evidence presented to me.


Q. Did Lieutenant Allen tell you about a black man named Douglas Milford driving slowly by
the Harold house early that morning?
A. He may have mentioned that.
Q. Could Douglas Milford have been the person who murdered the Harolds?
A. I dont know. He could have been. Anybody could have been. As I said before, I do not
know who was in the house.
Q. Just so the jury is not confused-you are not saying that David James Roberts murdered
anyone, are you?
A. No I am not.
There was no additional direct or cross examination of this witness.
Mr. Gantz then stated that the prosecution had no further witnesses and the State rested its
case.
At the conclusion of this testimony I adjourned the court for the day. I again allowed the
jurors to separate and admonished them as I had at the conclusion of the first day.
I thanked the jurors and told them to return Monday, November 17, at 9 a.m. at which time
the defendant would have the opportunity to present evidence in his defense.
At the conclusion of the states case, the defendant filed a motion for a directed finding of not
guilty based upon the theory that I as the judge, and as the thirteenth juror, had the right to and
should enter such a not guilty finding as there was not sufficient evidence to allow a conviction.
I denied the motion.

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19
The Trial-The Defense Evidence Day 6
November 17, 1975

At 9 a.m. on Monday, November 17, 1975, the cast again assembled to hear the defense
evidence.
The jurors had been very attentive throughout the trial and were eagerly awaiting the evidence
of the defense. They were expecting the defendant to testify.

Tom Jones called Harold Chavis as the defense first witness.

He testified that he was Roberts attorney in the misdemeanor tire theft case.

At his

suggestion Roberts had taken a polygraph test concerning the alleged theft and had passed. The
examiner concluded that Roberts was telling the truth when he stated that he did not commit the
theft. The polygraph test was admitted into evidence. In the polygraph test the examiner
concluded that Roberts was truthful in stating that he had never purchased any tires from Sears.
Mr. Chavis further testified that even though the positive results of a polygraph test are not
admissible in a criminal trial in Indiana to prove innocence, it had been his experience that in
misdemeanor cases a positive result would lead to a dismissal of the charges.

He was

anticipating that the charges against Roberts would be dismissed. He told this to Roberts.
However, the prosecutor was dragging his feet and had not yet agreed to a dismissal.

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Mr. Chavis had then taken William Harolds deposition.

Roberts was aware that the

deposition had been taken and that the matter was still set for trial. He told Roberts that if the
matter went to trial that it would be his word against Harolds and that he would argue that, It
doesnt make sense if a mans gonna steal some tires to let em get all of the information about
the tire serial numbers and then steal the tires. He told Roberts, But you know judges and
juries do funny things so we better have you take a polygraph.
Mr. Chavis concluded his testimony as follows.
Q. Mr. Chavis, you stated that Mr. Roberts was aware of the trial date?
A. Correct.
Q. Had the case been set for trial before?
A. Yes. It had been set for trial two times before and then was continued.
Q. Nothing had happened to the prosecuting witness William Harold before these other prior
settings? No witnesses were murdered before those trial dates, were they?
A. No.
Q. Have you had anything to do with the homicide case we are trying today.
A. Well, no. I think David called me at home. He had been arrested, upset, and he said
something that he didnt understand what it was all about.
There was no further examination of this witness.

The defense did not offer any further evidence that Roberts was at the Y.M.C.A. at the time of
the murders as set forth in his previous Alibi Notice. When he was arrested, Roberts had told the
police that he was at the Y.M.C.A. and this was already in evidence.

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The jurors anxiously awaited the next defense witness. They thought that it would probably
be Roberts.
During the course of the trial, there had been many discussions between Tom Jones and
Roberts as to whether Roberts should testify. Jones had explained that if Roberts testified, he
would be under oath and must tell the truth. Also, Roberts had a prior conviction of a crime that
would be brought out upon cross examination by the prosecutor. This conviction was relevant as
to Roberts truth and veracity. Once the evidence of the prior crime was introduced and allowed
on cross examination of the defendant, evidence of Roberts parole on this prior crime could be
introduced by the prosecution. The possibility of a parole violation due to the tires theft could
lead to additional time in prison. This would be an additional motive to murder Harold. Jones
told Roberts that the jury would expect him to testify and explain why he was innocent of the
theft and murders. The benefit of testifying would have to be weighed against the danger that the
previous conviction and avoidance of additional imprisonment motive might influence the jury
that he was guilty. Also, if he testified, the jury would expect Roberts to explain where he was
on the evening and morning of the murders and why they should not believe that he borrowed
the red gas can.
It is not known if Mr. Jones made any recommendation to Roberts as to whether he should
testify. The ultimate decision was Roberts.
I asked Mr. Jones to present his next witness.
Mr. Jones then stated that the defense had no further witnesses or evidence. Roberts would
not testify. The jurors were startled. They wondered why he did not want to testify. Most jurors
think an innocent person would want to testify.

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There was no rebuttal evidence by the state. I admonished the jury and asked them to return
November 18 for final instructions, closing statements of counsel, and deliberation.

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20
The trial-Closing Statements and Final Instructions
November 18, 1975

On November 18, 1975, the attorneys for the parties gave closing arguments to the jury.
The prosecutor, Charles Gantz, addressed the jury first. He stood in front of the jurors and as
he talked he looked directly at them and tried to make eye contact with each one. He
meticulously described the events leading up to the murders which collectively could lead to
only one conclusion by the jury that, beyond a reasonable doubt, David James Roberts murdered
William and Elizabeth Ann Harold and caused the death of their infant daughter Jenny Harold.
He reviewed the theft charges against Roberts and the fact that Roberts might be sentenced to
one year in prison and fined $5,000.00 if convicted of the theft charge. He stressed that William
Harold had given his deposition one week before he was murdered identifying Roberts as the
person who ordered the tires and that he was the sole witness against Roberts in the theft charge.
He stated, It may be difficult for most people to imagine that anyone would murder to avoid
a theft conviction. But Roberts is not a normal person. He does not think and act as you would.
Look at the person who viciously strangled and burned William and Elizabeth Harold and you
will see a person capable of anything. He had no regard for the infant Jenny. You heard the
testimony of the crime scene specialist, Laurence Phillips. He told you what Roberts probably
did inside the Harolds house that terrible morning. Remember that Elizabeth was found naked.
You can decide for yourselves what you think happened during that horrible hour before the
murders.

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OBJECTION BY MR. JONES:


I object to the last statements of Mr. Gantz. There was no evidence as to any rape and such a
statement was only made to improperly inflame the jurors. The only witness that said anything
about rape was the so called crime scene specialist detective Phillips and he was not there.
THE COURT: Overruled. You may proceed Mr. Gantz.

I overruled the objection because whether Elizabeth Harold had been raped was relevant on
the issue of malice and premeditation necessary for first degree murder. The jury could infer
from the evidence that Elizabeth had in fact been raped. Objections by counsel during closing
statements are rare. They are often made to interrupt opposing counsel and divert the jurors
attention. A standard final instruction was given by me to the jury that the closing statements by
counsel are not evidence but rather counsels interpretation of the evidence.

Mr. Gantz continued, The evidence clearly showed that on the afternoon before the Harold
murders a black male about thirty years old driving a 1970 gold Buick Riviera automobile owned
and registered to Roberts had asked at the Harold service station for directions to Pine Drive, the
street on which the Harolds lived. Even though the witnesses at the Harold station did not get a
good look at the driver and therefore could not identify the driver as Roberts, why would any
black man in a white neighborhood driving Roberts car, other than Roberts, have wanted
directions to Pine Drive late in the afternoon before the murders? There was no evidence that
any deliveries were expected by the Harolds.

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Mr. Gantz took a brief look at his notes and continued, The the red five gallon gas can found
at the Harold house was obtained at the Renkite Shell Station in Indianapolis the afternoon
before the murders by the defendant, David James Roberts. This evidence alone should convince
you beyond a reasonable doubt that David James Roberts murdered the Harolds and set fire to
them and their house. Richard Roman, the attendant at the Renkite Shell Station who knew
Roberts as a long time customer, positively identified the defendant as the person who, late in the
afternoon of January 19, 1974, drove into the station, obtained gas for his car, borrowed the red
five gallon gas can, had the gas can filled with gas, paid cash for the gas, and gave his personal
check for $5.00 dated January 19, 1974, as a deposit on the gas can. Roberts then drove away
with the gas can. This was an African-American identifying another African-American.

The writing on the red gas can was placed there previously in yellow crayon by William
Hardy. Both William Hardy and Richard Roman stated that the car being driven by Roberts was
a gold 1970 Buick Riviera which he had been driving for a long time continued Mr. Gantz.
Mr. Renkite and the two employees testified that the gas can never was returned to the Shell
station.

Mr. Gantz stated, It is understandable that William Hardy and Richard Roman did not
identify Roberts at the bail hearing in Johnson County as the person obtaining the gas can. The
survival rate of witnesses against Roberts before trial was extremely low. It took great courage
for Richard Roman to now positively identify David James Roberts.

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The prosecutor then said, Remember that when questioned after his arrest, Roberts stated to
Lt. Allen that he was the only one who ever drove his 1970 gold Buick Riviera.

There was a pause and Mr. Gantz looked at his notes again. He then said, Roberts also
stated to Lt. Allen that on the 19th and 20th of January, 1974, the night and morning of the
murders, he was at the Loraine residence in Indianapolis and was watching television and having
a few drinks with his girl friends brother, LeRoy Loraine until 1:30 a.m. Roberts stated that he
then left the Loraine residence and went to the Fall Creek Y.M.C.A. where he was then living.
LeRoy Loraine stated that he had not seen Roberts after 7 p.m. and had definitely not been
watching television with him that evening and early morning. Nobody at the Loraine residence
had seen Roberts after 10 p.m. The Y.M.C.A. desk clerk testified that the only entrance door to
the Y.M.C.A. had been locked by her from midnight until about 6 a.m. on January 20, 1974, and
that she had let no one in during this period. Roberts had obviously lied to Lt. Allen as to his
whereabouts the evening of the 19th and morning of the 20th. Ill tell you where he was. He
was at the Harold house setting it on fire and maliciously murdering William, Elizabeth Ann and
Jenny Harold.
Mr. Gantz walked to his table and took a small sip of water. He returned to face the jury and
continued, Roberts had motive, means and opportunity. There was understandably no witness to
the murders and therefore technically no direct evidence. However, the circumstantial evidence
is overwhelming and under Indiana law, a person can be convicted on solely circumstantial
evidence as the judge will instruct you in his final instructions. I implore you, as the conscience
of the community, to give closure to the Harold family and to render justice by reaching the only

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possible verdict-guilty on all counts. Thank you very much for your attention. Please do your
duty.
The prosecutor returned to his table slowly. I turned to Tom Jones and said, Mr. Jones, you
may proceed.

Defense counsel, Tom Jones, then gave his closing argument. He also stood before the jury.
He had a difficult challenge. He stated to the jury that it was hard to refute a suspicion of guilt
raised by some of the testimony but suspicion was not sufficient to convict. Each juror must be
convinced beyond a reasonable doubt of guilt.
No one saw Roberts at or near the Harold house. Were the identifications of Roberts and the
car matters of honest but mistaken identity? Mistaken identity has been shown and documented
in case after case. It is the leading cause of criminal convictions being set aside. No witness
identified Roberts as the person who had asked for directions to Pine Drive at the Harold service
station.
One witness at the Renkite Shell Station, William Hardy, had even cleaned the cars
windshield. He knew Roberts well but could not identify Roberts at the bail hearing or at this
trial as the person who had purchased the gas can found at the Harold house. Another witness at
the Renkite Shell Station, Richard Roman, claimed to have loaned on deposit the five gallon gas
can to Roberts. However, both William Hardy and Richard Roman when testifying under oath at
the bail hearing in Johnson County shortly after the murders had failed to identify Roberts as the
person who had purchased the gas can. Their memories of the events at the Renkite station were
fresh then and they were under oath.

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Defense counsel also asked the jury to consider whether William Harold mistakenly or
perhaps purposely identified Roberts in the tires theft case? Why would a well educated and
intelligent person such as Roberts commit such horrible crimes just to eliminate a possible
misdemeanor conviction, especially since Roberts had passed a lie detector test and expected to
be found not guilty?

Mr. Jones stated to the jury, The police had completely failed to investigate other persons
who might have committed the murders. They had their man. Why didnt the police find out
who had burglarized the Harold house and stolen clothes the week before? Why didnt they tell
the jury why Douglas Milford was not a suspect? He was seen driving a car similar to Roberts
car in front of the Harold house early on the morning of the murders. He must have been
connected to the murders and possibly committed them.

Tom Jones continued, Roberts stated that he was at the Y.M.C.A. when the murders
occurred. The Y.M.C.A. clerk was asked by the prosecutor if she let Roberts in the door that
night or morning and she stated, I dont think so. She appeared not to be certain and was
hesitant when answering. She was not even sure of the date. She stated that she registered
everyone who entered. Why didnt the prosecution obtain the registry and show it to the jury?

Defense counsel explained that it was not the obligation of the defense to show that someone
else might have committed the crimes. It was the obligation of the prosecutor to show beyond a
reasonable doubt that it was Roberts and not someone else. He emphasized that the defendant
was presumed innocent and that this presumption continued throughout the entire trial unless and

155

until the state proved to each juror beyond a reasonable doubt each and every material allegation
of the charges.

Defense counsel further stated that the filing of Indictments against defendant, as Judge
Berger will instruct you, was not to be considered as any evidence of guilt as the Indictments
were merely a technical way under Indiana law to commence a criminal prosecution.

He also explained to the jury, as the judge will also instruct you, that the failure of Roberts to
testify on his own behalf cannot be construed by the jury in any way as an admission of guilt.
He stated that the jury might understandably ask why if he was innocent he did not testify. He
explained that there are many reasons why a defendant may choose not to testify: the defendant
may be very nervous when testifying and his demeanor might imply that he was lying when in
fact he was not; and the defendant may have been convicted of a prior unrelated crime which
would be brought out by the prosecutor on cross examination, which prior crime may incorrectly
influence a juror that the defendant was guilty.
Mr. Jones told the jurors to remember that even though David James Roberts had not testified,
he had entered a plea of not guilty to all charges. This plea is equivalent to a statement by him
that he did not commit the murders-that he did not borrow the gas can.

Mr. Jones stated to the jurors, Your decision as to the guilt or innocence of David James
Roberts is probably among the most difficult and important decisions that you will ever have to
make. Do not forget the possible consequences of a guilty verdict. If you find Roberts guilty of
murder in the first degree, then there will be a second phase to the trial. You will then hear

156

further evidence about a prior crime and if you believe such further evidence has been proven,
under Indiana law you will have to sentence David James Roberts to death. The prosecutor
might prove such further evidence at phase two of the trial and therefore if you return a guilty
verdict now of murder in the first degree you are actually sentencing Roberts to death.

Mr. Jones then explained that the judge would instruct them concerning the doctrine of lesser
includable offenses. This doctrine states that if the jury is not convinced beyond a reasonable
doubt that the defendant is guilty of first degree murder, then they may consider whether the
defendant is guilty of murder in the second degree which calls for a life sentence rather than
death, or a sentence for a term of years; or is guilty of voluntary manslaughter which calls for a
sentence for a term of years; or is guilty of involuntary manslaughter which calls for a sentence
for a term of years.

Mr. Jones also explained that Judge Berger will instruct them concerning the jurys right to
determine the law and that they could disregard the law for a substantial reason. Mr. Jones
stated, Therefore if any juror has a substantial reason to believe that a certain law should not
apply to this case, he or she may disregard the strict application of that law and render a decision
that he or she believes is a fair and honest application of that law.

Mr. Jones declared to the jury, You have heard five days of prosecution evidence. The only
evidence that you have heard which connects David James Roberts to the crimes is the testimony
of Richard Roman concerning the gas can loan. By his plea of not guilty, Roberts has denied
that he borrowed any gas can. All the other evidence is maybe or possibly or Im not sure

157

or could have been. This is not the type of evidence which would allow a finding of guilt
beyond a reasonable doubt. That leaves the jury with only the testimony of Roman. Remember,
he testified under oath and before God at the bail hearing a few weeks after the crimes were
committed that David James Roberts was definitely not the purchaser of the gas can. His
memory was fresh then. Now over a year later he suddenly changes his mind. If you are not
convinced beyond a reasonable doubt that Richard Roman has spoken the truth at this trial, then
you must acquit David James Roberts. It all comes down to that. Ladies and gentlemen, I beg
you not to find David James Roberts guilty of these crimes. A guilty decision would most likely
result in a mandatory sentence of death.

Defense counsel ended by imploring the jurors not to be influenced by the type of crime
committed or by sympathy for the Harold family. He stated that such feelings would be
understandable but that the jurors had sworn to judge the facts without passion or prejudice, to
faithfully apply the law as determined by them, and to render a fair and just verdict, not only to
the State but also to David James Roberts.
Mr. Jones reminded the jury that Roberts was presumed innocent; that he had no burden to
prove his innocence; and that the entire burden was upon the state to prove guilt. Further, he
stated in conclusion that the state had failed to sustain such burden and that justice compelled the
jury to find his client, David James Roberts, not guilty of all charged offenses.

At the conclusion of closing arguments, I read to the jury the courts Final Instructions which
included most of the Preliminary Instructions with additional instructions concerning

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circumstantial evidence, the failure of defendant to testify, motive, lesser includable offenses, the
duty of jurors to judge the law and the facts, and the filing of Indictments.
I further advised the jury that their sole function in this phase one of the trial was to determine
guilt or innocence on all of the charges. I also advised that a finding of guilty on either Count I or
III would result in a mandatory sentence of life imprisonment but that a finding of guilty on
either Count II, III or VI would result in a mandatory sentence of life imprisonment and, under
certain circumstances, death. The sentence on these counts would be decided by the jury at phase
two of the trial to be held later if necessary. I further advised that a finding of guilty on Count VI
would result in a mandatory sentence for an indeterminate term of five to twenty years.

Throughout the entire trial Roberts was always dressed in a dark suit and tie. He was always
calm and attentive. He took notes and often conferred with Tom Jones.

After I gave the Final Instructions to the jury, the jury retired to the jury room to deliberate
the fate of David James Roberts. A copy of the Final Instructions was given to the jury to
consider during deliberations. It was 3 p.m. on November 18, 1975.

On the morning of November 18 while I was in my chambers preparing the final instructions,
a member of the Indiana State Police spoke with me.
The officer stated that the Indiana State Police had heard from the Illinois State Police that a
confidential informant in Chicago had heard a friend of Roberts, who had been a cell mate of
Roberts, discussing plans with others to help Roberts escape if the jury should find him guilty of

159

murder. The plans included possibly taking me or my wife and children as hostages to be
exchanged for the release of Roberts.
The conspirators allegedly had made plans for Roberts to fly to Algeria which had no
extradition treaty with the United States.
Roberts brothers and friends were in Steuben County. Security at the courthouse was
increased. I was advised to stay at the courthouse.
In response to the threat, I had my wife and two small children stay at the house of a friend.
They stayed there until Roberts returned to Indianapolis the next day.

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21
The Trial-Duty of Jury
November 18, 1975

There are two Indiana legal principles which give the jury great leeway in determining a
proper verdict, jury nullification and lesser included offenses.

JURY NULLIFICATION
I gave the following final instruction concerning the duty of a juror.

DUTY OF JURY

In criminal cases the Constitution of Indiana gives the jury the right to determine the law as
well as the facts. At the same time, it is my duty to instruct you concerning the law. This means
that you should pay respectful attention to the law contained in my instructions, should give the
law a fair and honest interpretation and should not ignore or disregard the law without a
substantial reason. However, in reaching your final decision, you have the right to determine the
law and the facts by which your verdict will be governed.
This instruction gave the jurors the right to determine the law and disregard it if they had a
substantial reason. They could return any verdict they thought proper, even a not guilty verdict.
What was a substantial reason had not been determined by the courts or legislature.
Jury nullification is defined as A jurys refusal to apply the law because the result dictated
by law is contrary to the jurys sense of justice, morality, or fairness. The Indiana Constitution

161

in Article I, Sec. 19 states, In all criminal cases, whatever, the jury shall have the right to
determine the law and the facts. Does this provision to determine the law grant to Indiana
juries the right of jury nullification? The answer is possibly yes until about 1983 and no
thereafter.
This right to determine the law was first set forth in the original 1816 Indiana Constitution
and was meant to give to the people a safeguard against oppressive government laws. This
Constitutional right was incorporated in the 1851 Indiana Constitution and has never been
repealed. Only two other states, Oregon and Georgia, have similar constitutional provisions.
Does this Constitutional right to determine the law mean that the jury can under certain
circumstances refuse to apply the law-to nullify the law?

Even without a Constitutional

provision, a jury always has the power (as contrasted with the right) to disregard the law and
return a verdict of not guilty. A not guilty verdict cannot be overturned by a judge or court,
jurors do not have to give any reason for their verdict, and the defendant cannot be tried again as
this would be double jeopardy.
The above instruction which was given to the jury was based upon an instruction which was
at that time approved by the Indiana Supreme Court. Today this instruction would not be
approved. Later Indiana cases commencing in 1983 seem to state, without precedent, that a jury
in determining the law can never disregard the law, even for a substantial reason! The Indiana
Supreme Court by judicial fiat has in effect improperly repealed Article I, Sec. 19 of the Indiana
Constitution.

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LESSER INCLUDED OFFENSES

The doctrine of lesser included offenses can be described as follows. If a defendant is


charged with Killing another human being with premeditation and malice as in the Roberts
case the defendant is charged with First Degree Murder. By virtue of such a charge, under
Indiana law, the defendant was automatically also charged with three other felonies. These are
Second Degree Murder, Voluntary Manslaughter and Involuntary Manslaughter. Roberts could
have been convicted of any one of these three lesser included offenses rather than First Degree
Murder. I instructed the jury concerning this rule.

If the Roberts jury decided that Roberts did intentionally kill William and Elizabeth Harold
with malice but did not plan in advance to kill them (no premeditation), then the jury could reach
a verdict of Second Degree Murder and impose a life sentence or a definite sentence of from
fifteen to twenty five years.
If the jury thought that such killing was done without malice and premeditation and in the
heat of passion, then the jury could reach a verdict of Voluntary Manslaughter which had a
penalty of an indeterminate term of 2-14 years.
If the jury found that there was no intent to kill but that the deaths were the result of reckless
and wanton conduct, the jury could reach a verdict of Involuntary Manslaughter which had a
penalty of an indeterminate term of 1-10 years.

Defense counsel was relying heavily on these principles to avoid a conviction of First Degree
Murder and the imposition of the death penalty. If one or more jurors were not convinced

163

beyond a reasonable doubt of Roberts guilt as to First Degree Murder or were hesitant to reach a
verdict which would have required the death penalty, by using one or both of these principles, a
compromise verdict could have been reached by finding Roberts guilty of Second Degree
Murder or Manslaughter.

By using the above principles, juries can arrive at surprising verdicts from not guilty to a
conviction of a lesser included offense. Most are compromise verdicts. I presided over many
trials in which I believe that the jury verdicts were based upon compromise or in some cases a
complete disregard of the facts.

The following are three trials over which I presided which illustrate these principles.

TRIAL 1:
The defendant was charged with First Degree Murder: intentionally killing with malice and
premeditation.
Defendant was very jealous of his wife and thought that she was having an affair with a
fellow factory worker. At 11:30 p.m. the defendants wife was returning home by car from work
along a lane near their home. The defendant had been waiting for her and as she drove past him,
he threw a large boulder at her car. She stopped the car and defendant ran up and opened her car
door. He pulled her out of the car and slashed at her with a knife. She was able to spray him
with pepper spray and ran down the lane away from the defendant. The defendant ran after her
and repeatedly struck her with his knife in the back and finally in the throat which was fatal. He
testified that he then lay on the ground, cradled her head on his lap, and began crying. He further

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testified that he was afraid for his life as he thought she had a gun in her purse, and only stabbed
his wife in self defense.
The jury reached a verdict of voluntary manslaughter. Some jurors thought that there was an
intentional killing with malice and premeditation, and therefore murder. Some jurors thought
that the killing was not planned, was done in the heat of passion, and therefore voluntary
manslaughter. Some jurors thought that the killing was done in self defense. The final verdict
appeared to be a compromise.

TRIAL 2:
The defendant was charged with First Degree Murder: intentionally killing with malice and
premeditation.
The defendant and his wife often had heated arguments.

During one such argument,

defendant testified that his wife took a large kitchen knife and lashed out at him. As a result he
received a small surface cut on his hand. He grabbed her and as they fell backward they broke a
large ceramic jug. He picked up a jagged sharp piece of the broken jug and swung at his wife.
According to his testimony, his wife stated that she was going to kick him in the balls. Upon
hearing this he stated that he had no choice but to immediately defend himself and his manhood.
He stated that he took the knife away and stabbed her to protect himself.
The evidence disclosed that the defendants wife had over thirty wounds on her body. Some
wounds were caused by the knife and some by sharp pieces of the ceramic jug. Eleven deep
wounds on the front of her hands and arms were described by an expert witness as defense
wounds, those caused by holding out your arms to defend yourself.

165

The jury reached a verdict of battery and sentenced the defendant to six months in prison.
Some jurors thought that there was an intentional killing with malice and premeditation, and
therefore murder. Some jurors thought that the killing was not planned, was done in the heat of
passion, and therefore voluntary manslaughter. Some jurors thought that the killing was done in
self defense. The final verdict appeared to be a compromise.

TRIAL 3:
The defendant was charged with Rape.
The victims were two girls in their twenties who were on their way home to Boston from a
vacation. They had been travelling in the western states and were hitchhiking along the Indiana
Toll Road. They were on summer vacation from a Boston College. While stopping at a toll
plaza, they accepted a ride with a truck driver who was heading east.
An Indiana State Trooper was driving along the toll road and noticed a semi tractor trailer
parked along the side of the road with the engine running. The trooper stopped to investigate and
found the defendant and the two girls in the back sleeper portion of the tractor. One girl was
huddled in the corner. The defendant was on top of the other girl engaged in intercourse. Both
girls were crying. Both girls claimed that the defendant had beaten them and threatened them
with further harm unless they allowed him to have intercourse with them. The defendant was
arrested and charged with rape.
Within two hours the girls appeared before me to testify concerning their ordeal. The purpose
of the hearing was to determine if there was probable cause to issue a formal arrest warrant. I
found probable cause and issued the warrant. When the girls appeared in court they were still

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wearing their original clothes which appeared to be torn. Also many bruises were apparent to
me.
The defendant appeared before me for preliminary hearing and bond was set. His trucking
company posted bond. At the formal arraignment hearing, the defendant did not appear. I issued
a warrant for his arrest.
The defendant was picked up for a traffic violation in Texas two years later. He waived
extradition and was returned to Steuben County for trial. At that time it was not a crime in
Indiana to jump bail. The only penalty was to forfeit the bond which of course the trucking
company had to pay.
The girls both returned to testify. The defendant testified that the girls had been pestering him
for about fifty miles to stop and have some fun. Finally, being a normal man, he said he could
not resist any longer and at their urgent request, he had intercourse with both of them.
The jury returned a verdict of not guilty! When asked why they returned a not guilty verdict,
they stated that most of the jurors felt that any decent girl would not travel across the country
hitch hiking and that if they did they were just asking for it.

The defendants in the above three cases were wise to have a jury decide their cases rather than
have it tried by the court (by me).

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22
The Trial-Jury Deliberations
November 18, 1975

At 3 p.m. the twelve members of the jury entered the jury room to begin their deliberations.
The alternate juror sat alone in the courtroom, admonished not to talk to anyone during
deliberations. The door to the jury room was locked by the bailiff. The jurors would not be
allowed to leave the jury room except for meals. At any meal they would eat together and apart
from any other diners. As admonished by me, they were not to discuss the trial during any meal.
They were in charge of the bailiff at all times.

The jury room contained a long rectangular oak table with turned legs and twelve oak ladder
back chairs. There was no other furniture.
There was one picture hung on the wall. It was an old photograph of the first Steuben County
jury that had women jurors. The year was 1936 and the photo showed eight women and four
men, all with very serious expressions. The photograph also showed a young prosecuting
attorney, Harris Hubbard, who was judge of the Circuit Court when I started law practice, and
the judge at that time, the Hon. Clyde C. Carlin.
There were two rest rooms. The bailiff had provided a large pitcher of ice water and paper
cups. Paper and pencils were available.

Under Indiana criminal trial procedure at that time, the jurors were not allowed to take notes
during the trial. The jurors also at that time were not permitted to take exhibits with them into

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the jury room during deliberations. During deliberations, the jurors were not permitted to have a
copy of the final instructions that had been read to them by me.
The reason for the rule against note taking as stated by the Indiana Supreme Court was to
prevent the jury from being distracted by taking notes and perhaps missing some testimony.
The rule against having exhibits and instructions during deliberations was to prevent the
jurors from giving extra consideration to one exhibit or instruction perhaps to the exclusion of
others.
These rules completely ignored the intelligence of jurors and hindered their deliberations. I
refused to follow the rule as to the exclusion of instructions from jury deliberations and sent a
copy of the final instructions with the jury. Without the written instructions, how could jurors
remember the eight essential elements of the murder charges against Roberts that they must find
beyond a reasonable doubt to convict him? How should they reconcile contradictory evidence?
What is a reasonable doubt?

In the Roberts case, the prosecutor and defense counsel did not object to sending a copy of the
final instructions with the jury during deliberations. Defense counsel certainly should not have
objected. It was to the defendants advantage to have the jurors realize that there were eight
essential elements which must be found to convict. Without the instructions as to the elements
of each charge, the jury might remember only some of the essential elements and reach a wrong
verdict!
In an appeal from a later murder trial over which I presided wherein I had again sent the final
instructions with the jury during deliberations, defense counsel objected. The Indiana Supreme
Court held that allowing the jury to have a copy of the final instructions was error. The Court

169

stated however, that since the defendant had not shown how defendant was prejudiced by such
action, the error was harmless and the conviction was affirmed.

In spite of the Indiana Supreme Court reprimand, I continued this practice in all civil and
criminal cases.
Current Indiana Supreme Court Rules of Criminal Procedure now specifically allow note
taking and the jury to have a copy of the final instructions and original exhibits with them during
deliberation. Also a juror may submit a question to the judge to be answered by a witness.

After taking seats around the long table, the jurors first agreed upon a foreman. There were
no volunteers and a well regarded farmer, Philip Michael, who lived on the family homestead
near Fremont, Indiana, reluctantly agreed to be foreman.
All jurors agreed that the first thing that they had to decide was if the evidence proved beyond
a reasonable doubt that David James Roberts intentionally killed William and Elizabeth Harold.
If they agreed that Roberts intentionally had killed them, then they would decide if the killing
was done with malice and premeditation (Counts I and III).
They also had to decide if the deaths of William and Elizabeth Harold had occurred in
connection with a burglary (Counts II and IV). Burglary required a finding of uninvited entry
into the house by Roberts through a closed door or window and that he did so with the intent to
commit arson, rape or murder.
The next decision for the jury was to decide if Roberts committed arson (Count VI) and if so,
did such arson cause the death of Jenny Harold (Count V).

170

There was a general discussion by the jurors of the facts and the inferences that could be
drawn. Some of the final instructions were reviewed.
The discussions were calm, deliberate and well organized.

Much weight was given to the possible identifications of Roberts car at the New Whiteland
and Indianapolis gas stations on the 19th of January, 1974; Roberts statement to Lt. Allen that
he, Roberts, was the only one who used or drove his gold 1970 Buick Riviera on the 19th and
20th; the testimony of Richard Roman wherein he positively identified Roberts as the person
who obtained the red five gallon gas can from the Renkite Shell station on the 19th; the fact that
the same gas can was found at the Harolds house; the inquiry as to directions to Pine Drive, the
street where the Harolds lived, by the driver of a car identified as Roberts car; Roberts motive
to kill the sole witness against him on the theft charge to avoid conviction and possible
imprisonment; the fact that the intruder did not take anything from the house (except possibly
cash from the wallet and purse) indicating that the intruder was not a common burglar but had
some other reason to enter the Harolds house.

Several jurors remembered the statement that Roberts parole officer was contacted.

If

Roberts was on parole, he must have been sentenced to a term of years for a felony and therefore
would have to serve the remainder of the original sentence in prison as a result of any parole
violation. This would add to the motive to avoid conviction on the theft charge.

171

The jurors also discussed the fact that Roberts had obviously lied to Lt. Allen as to his
whereabouts on January 19 and 20, 1974. He was not with LeRoy Loraine watching television
and drinking until 1:30 a.m. LeRoy Loraine was with his girl friend and not with Roberts.

Several jurors were concerned about a portion of the testimony of Lt. Lasiter. He stated that
a fireman at the Harold house on the morning of the murders at about 6:30 a.m. had seen a car
that looked like Roberts 1970 Buick Riviera being driven by a black male. The fireman later
was shown a group of photographs including Roberts photograph. The fireman picked out a
photograph of a person named Douglas Milford and not Roberts as the driver. Lt. Lasiter
testified that he had investigated further and personally determined that Douglas Milford was not
involved in the murders. The jurors wondered why the prosecution did not explain this further.
Why did the police have a photograph of Douglas Milford? Why was Douglas Milford driving a
car that looked like Roberts car that early morning in front of the Harold house if he was not
involved? What information did Lt. Lasiter obtain to lead him to believe that Milford was not
involved in the murders? Defense counsel had probably brought out the Milford information on
cross examination of Lt. Lasiter to raise the possibility that someone else other than Roberts was
involved and possibly committed the murders. The jurors were concerned with this apparent
lapse in the investigation.

After further lengthy discussions it was evident that all jurors thought that Roberts had
planned to kill William and Elizabeth Harold, that he had killed them, and that he intended to kill
them when he entered the house. The testimony of Richard Roman was crucial to the jurors.

172

They believed that he had in fact given the red five gallon gas can to Roberts the afternoon
before the murders.

As to Counts II and IV which required a finding of burglary and a breaking into the house,
some jurors thought that there was no evidence as to how Roberts entered.

Since the jurors verdict could result in the death sentence for Roberts, some jurors expressed
the opinion that they could not make a mistake and if they were not absolutely sure, perhaps they
should consider a verdict of second degree murder and impose a life sentence or perhaps a term
of years from fifteen to twenty-five years.
The jurors decided to have dinner before further deliberations and so informed the bailiff.

After dinner the foreman asked each juror to express his or her opinion as to the guilt or
innocence of Roberts. Ten of the jurors thought that Roberts was guilty on all charged counts.
Two were hesitant. They said that they thought he was guilty but that since a guilty verdict
could lead to a death sentence, they were reluctant to make such an important decision.
The jurors again reviewed the evidence. Further discussion followed.
The jurors decided to take a written secret vote. The jurors voted several times with further
discussion after each vote. Finally, the vote was unanimous.

The foreman then knocked on the door and told the bailiff that they had reached a verdict.

173

All court personnel and the attorneys had stayed at or near the courtroom during all jury
deliberations anxiously awaiting the verdicts. I was available at all times in case the jury had a
question. There was a lot of nervous pacing. While the jury was deliberating, there was the
usual speculation as to how long it would take for a jury decision. A fast verdict may or may not
be a favorable one. If the jury took a long time to decide, perhaps they could not agree and there
would be a hung jury. If so, Roberts most certainly would be tried again or a plea bargain
might be agreed to for a lesser offense.

174

23
The Trial-The Verdicts
November 18, 1975

At 8: 30 p.m. the jury indicated to the bailiff that they had arrived at their verdict. Roberts
and counsel were advised and all returned to the courtroom.
The Bailiff led the jurors into the jury box. All was very quiet in the courtroom. The
expressions on the faces of the jurors were somber.

I asked the foreman, Philip Michael, if the jury had reached a verdict and he answered that
they had. The verdict was handed to the bailiff who then handed it to me. I read the verdicts to
myself to see if they were in proper form. They were. I asked the defendant to stand and I read
aloud the verdicts of the jury.

We the jury find the defendant David James Roberts guilty of murder in the first degree as
charged in Count I (intentional premeditated killing of William Harold with malice) and sentence
him to life imprisonment.
We the jury find the defendant David James Roberts guilty of murder in the first degree as
charged in Count III (intentional premeditated killing of Elizabeth Ann Harold with malice) and
sentence him to life imprisonment.
We the jury find the defendant David James Roberts guilty of murder in the first degree as
charged in Count II (taking the life of William Harold while committing burglary) the sentence
to be determined after further evidence in phase two of the trial.

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We the jury find the defendant David James Roberts guilty of murder in the first degree as
charged in Count IV (taking the life of Elizabeth Ann Harold while committing burglary) the
sentence to be determined after further evidence in phase two of the trial.
We the jury find the defendant David James Roberts guilty of first degree murder as charged
in Count V (taking the life of Jenny Harold as a result of arson) the sentence to be determined
after further evidence in phase two of the trial.
We the jury find the defendant David James Roberts guilty of arson in the first degree as
charged in Count VI and sentence him to five to twenty years in prison.

Roberts showed no emotion. There was no celebration. All was quiet in the court room.

At the request of Tom Jones, the jury was individually polled by me. I asked each juror if the
verdict of guilty on all counts was in fact his or her personal judgment. All answered quietly yes.
I thanked the jurors and told them to return to court on December 3, 1975, at which time they
would hear further evidence in order to determine if the death penalty would be imposed under
counts II, IV and V.
I then issued an order that the defendant be held in custody without bail and delivered
immediately to the Sheriff of Marion County, Indianapolis.

176

24
Indianapolis
(Prior to Roberts Trial)

On a frigid November night in 1974 a twenty year old white woman with her six month old
son was driving her automobile in Indianapolis, Indiana, and stopped at a red light. Suddenly
the passenger door was opened and a black male entered the car brandishing a handgun. He
ordered the driver to drive to a vacant area on the outskirts of Indianapolis.
Upon arrival, he threatened to kill her if she resisted and raped her twice. She was then
locked in the trunk. He drove the car several miles and then abandoned the car.

Later a passerby heard her pounding on the inside of the trunk and obtained her release. The
infant was not in the car. The infant was later found dead at the side of a nearby roadway. The
child had apparently been thrown from the car and died from exposure.

The police showed the woman several photographs of black males and she positively
identified David James Roberts as her assailant. Charges of rape, kidnapping and murder were
filed against Roberts in the Marion Superior Court in Indianapolis. He was immediately arrested
and held without bail.

These charges were set forth in the newspaper article which some of the first panel of jurors
had read which caused me to dismiss these jurors.

177

Understandably there was great condemnation in the press over the fact that, a murderer had
been released on bail by the judge to murder again. The Indiana Governor sent a special
representative to Angola to question me as to why I released this murderer on bail. I explained
to the representative that Roberts had been released on bail not by me but by the Johnson Circuit
judge, and that considering the evidence at the bail hearing, the release was required by law. The
Governors aid was not satisfied at all by the explanation and left stating something about liberal
judges and that they were going to get that law changed. The law has not been changed.

Trial of these Indianapolis charges was held after the New Whiteland Roberts murder trial in
Steuben County ended. The first Indianapolis trial of Roberts ended in a mistrial. When the jury
was deliberating, one of the jurors became ill and the deliberations could not continue. There
was no alternate juror. A second trial was held and also ended in a mistrial. A juror during
deliberations became mentally unstable and violent from the strain of the trial and had to be
hospitalized. Again there was no alternate juror. The third trial ended with a conviction and
sentencing of David James Roberts on all charges.
What courage the young woman must have had to testify in three trials.

178

25
Roberts Criminal Record

A criminal records check made before Roberts was charged with the Harold murders and
arson revealed that Roberts had previously served about six years of a twelve year sentence at the
Indiana State Reformatory for armed robbery in Crown Point, Indiana. The armed robbery
occurred on March 11, 1966 when Roberts was twenty-two. The Amended Affidavit charging
armed robbery stated that Roberts had obtained $1.50 from a woman by threat using a pistol.
Roberts entered a plea of guilty pursuant to a plea bargain. The armed robbery statute called for
a determinate sentence of between ten and twenty years. The Lake Criminal Court judge
sentenced Roberts to twelve years in prison pursuant to the plea agreement.

He was on parole at the time of the Harold murders. He had served about six years of the
twelve year sentence.

He was involved in a 1969 disturbance at the prison during which one inmate was killed and
forty six others injured. As a result of injuries sustained in the disturbance, Roberts spent about
nine months in the hospital. Roberts and 12 other inmates filed a one million dollar civil suit
against the State of Indiana alleging the use of excessive force by state employee prison guards.

At the omnibus hearing the defense counsel had filed a Motion in Limine asking me to forbid
any reference to the armed robbery conviction and parole in the first phase of the trial unless
Roberts testified. I had granted the motion.

179

The decision by me to not allow the prosecutor to introduce evidence of or refer to the armed
robbery and parole (except for cross examination of defendant if he testified) was made by me as
a cautionary matter to avoid error. The prosecutor made a strong argument that he should be
able to introduce evidence of a possible parole violation which was very relevant on the issue of
Roberts motive to kill William Harold to avoid six more years in prison for probation violation.
I had to weigh this against the possible prejudice to Roberts if the jurors knew of a prior serious
crime having been committed by Roberts.

If Roberts had testified, the previous conviction of armed robbery would have been
admissible upon cross examination as proper impeachment testimony. When a person testifies,
the witness places credibility of the witness in issue and having committed robbery (theft from
the person) is considered relevant as to the witnesss credibility. Defense counsel did not want to
risk having the jury hear such evidence. Even though evidence of a prior crime should only be
considered by the jury as evidence of truthfulness, a juror might let the conviction influence the
decision as to guilt or innocence and defense counsel did not want to take this risk by having
Roberts testify.

Evidence of the pending Indianapolis charges of murder, rape and kidnapping against Roberts
was not admissible as these were only charges. Even if they were convictions, evidence of these
convictions would not be admissible to prove that Roberts committed the prior New Whiteland
murders or as evidence upon cross examination relating to his credibility. Under Indiana law
conviction of rape, kidnapping and murder is not evidence that a witness is not telling the truth or

180

that he committed a prior murder! At the omnibus hearing, pursuant to defendants Motion in
Limine, I had ordered the prosecution not to mention these charges.

When the jurors had been deliberating the guilt or innocence of Roberts they had no
knowledge of the rape, kidnapping and murder charges pending against Roberts in Indianapolis
or of his previous conviction, imprisonment and parole for armed robbery. The jurors did not
know that a conviction on the theft charge would have resulted in revocation of parole and six
additional years of imprisonment for Roberts. This would have been a much stronger motive
than only avoiding a theft conviction.

181

26
The Trial Phase Two
December 3, 1975

On December 3, 1975, phase two of the trial was held. The twelve jurors and the alternate
returned to the courtroom and were welcomed again by me.

All attorneys and David James Roberts were present. Roberts was wearing his usual suit and
tie but was shackled at his wrists and ankles. Before the jury entered the courtroom, over the
objection of the sheriff, I directed that Roberts be unshackled. I thought that it would be
prejudicial to Roberts to appear shackled. The jury would wonder why.

I first gave additional Final Instructions to the jury concerning the following.
The sole issue for determination by the jury was whether David James Roberts had been
convicted of robbery prior to the Harold murders. If he had not, the mandatory sentence on
Counts II, IV and V was life imprisonment. If he had, the mandatory sentence was death on each
of said counts. The prosecutor had the burden of proving beyond a reasonable doubt that the
defendant David James Roberts was in fact the same David James Roberts who had previously
been convicted of robbery.
At the request of the Tom Jones, I also gave the following final instruction to the jury:
The Indiana Constitution states that cruel and unusual punishments shall not be inflicted. All
penalties shall be proportional to the nature of the offense. The Indiana Constitution further
provides that the Penal Code shall not be founded on vindictive justice.

182

In 1983 the Indiana Supreme Court decided that the above jury instruction should not be
given to the jury. The court held that these constitutional provisions were merely limitations on
the legislature when enacting criminal laws and that the jury should not be made aware of these
provisions. The court stated without prior authority or citation, These proposed instructions
would have conveyed to the jury that it had the power of nullification, which clearly it does not
under the law.

After a brief opening statement, the prosecutor first introduced and had admitted into
evidence a certified record of the proceedings before the Lake Criminal Court on June 17, 1966,
which included Amended Affidavit of Armed Robbery, Roberts guilty plea, the judgment of the
court that David James Roberts was guilty of armed robbery, the sentence of twelve years
imprisonment in the Indiana Reformatory at Pendleton, Indiana, and the Pendleton Admission
Summary. The record disclosed that Roberts was represented by attorney Max Cohen.

The Amended Affidavit stated:


That David James Roberts on the 11th day of March, 1966, did forcibly and feloniously take
from the person of Mildred Wiscolik, by violence and by putting her in fear, certain articles of
value, to wit: $1.50 in money then and there being the personal property of Mildred Wiscolik
while the said David James Roberts was armed with a pistol.
The Admission Summary at Pendleton Reformatory contained the following:

183

INMATES STATEMENT:
At the time of my crime, I was by myself. I saw three ladies in a car, and approached them
and told them this is a stick-up. I took $40.00 and fled. I was apprehended six blocks from the
scene of the crime by the police.
I was then taken to jail and questioned. I was not advised of my legal rights nor was I
permitted to call my attorney. I was then transferred to the county jail, where I stayed for
approximately 4 to 5 months. I then entered a plea of guilty, was sentenced and transferred to
the Indiana Reformatory at Pendleton.
The above is a true and exact statement given without threat or promise.
The record further showed his parole on December 18, 1972, and Division of Parole Initial
Interview. The Interview states:

REMARKS:
On 12-19-72 this writer read and discussed the rules and regulations of parole with Roberts
and Roberts stated that he was aware of his obligations.
Roberts is originally from New Jersey, however, his family now lives in the Gary, Indiana
area. Roberts had been given permission to marry a Miss Maryanne Dully, and the two should
be married by 12-29-72.
Roberts now owns a 1970 Riviera Buick which is properly licensed and insured.

TENTATIVE EVALUATION:
This writer anticipates a successful parole for David Roberts. The subject has no previous
criminal record and apparently was a good inmate while at the DOC Work Release Center.

184

The first witness for the prosecution was Daniel Orewiller.

He stated that he was the Director of Classification at the Pendleton Reformatory and had
been for seventeen years. He was custodian of records which included the Inmates Registry
Book, fingerprints of all inmates, and photographs of all inmates. He stated that the records
showed a David James Roberts as an inmate pursuant to a conviction of Armed Robbery in Lake
County, Indiana. The records further contained the fingerprints and photograph of David James
Roberts. He stated that he was familiar with the inmate David James Roberts and that the
defendant in the courtroom was the same identical person.

The registry, fingerprints and

photograph were introduced and admitted into evidence. The photograph introduced was as
follows.

185

DAVID JAMES ROBERTS PHOTOGRAPH AT PENDLETON PRISON


AUGUST 22, 1967

186

Upon cross examination by Mr. Jones, the witness stated that he was aware of the law suit
brought by the defendant against the State of Indiana for certain actions taken by guards at
Pendleton. He stated that he was also aware that the Indiana Supreme Court had decided in a
landmark case that Roberts could sue the state. Previously the Indiana law did not allow suits
against the state for action taken place in prison by guards. Mr. Jones then asked the witness if
he did not think it was unusual that Roberts had been arrested for the Harold murders just three
days after the Indiana Supreme Court decision in Roberts favor. The witness said he had no
opinion on that. Mr. Jones then asked, So you have no opinion as to whether Mr. Roberts was
arrested for the Harold murders in retaliation for suing the State of Indiana? There was
objection by Mr. Gantz and I sustained the objection.

Previously the prosecutor, in anticipation of this penalty phase, obtained an order from me
that Roberts give a fingerprint exemplar which could be compared to the fingerprints on file with
Pendleton Reformatory.

Allen Stout, Indiana State Police Trooper, then testified that he had that morning taken the
fingerprints of the defendant David James Roberts.

The fingerprint exemplar was then

introduced into evidence.

The next witness, Donald Shively, Indiana State Police fingerprint expert stated that he had
compared the exemplars of fingerprints from the Pendleton records to the exemplars of
fingerprints taken from the defendant by Officer Stout, and that all prints on both cards were the
same.

187

There was no cross examination of the witness.


The prosecution then rested.

Tom Jones called only one witness: the defendant! The prosecutor could not object as
Roberts had the opportunity to testify that he was not the same David James Roberts that had
been convicted of robbery.

DIRECT EXAMINATION BY MR. JONES:

Q. Would you state your name to the Court, please?


A. David James Roberts.
Q. Now, Mr. Roberts, theres been testimony concerning an alleged riot at the prison in which
you were apparently involved. Tell the jury what actually transpired.
A. Ah-I had been incarcerated in the Indiana State Reformatory. There was a disturbance on the
opposite side of the reformatory. We were on a basketball court and we came around a corner
and had a reformatory guard-several of them-level shotguns at me, and told me to lie down on
my stomach. I was under the impression that this was to contain the masses-to have a mass
arrest so to speak. This was not unusual. The crowd was orderly and they were obeying orders.
It was quiet. I no sooner lay down on my stomach in a total surrender position-the guards were
behind a cyclone fence-and for no apparent reason they opened fire on us repeatedly thirty-one
times.
Q. Were you shot up in that incident?
A. I was shot five times and had my left arm almost severed.

188

Q. Now, did you require medical treatment over that-your arm and that sort of thing?
A.

Yes, my arm and leg for approximately nine months in the Robert Long Hospital in

Indianapolis.

In the heat of battle, sometimes really dumb questions are asked by counsel. This question is
an example. Of course after being shot five times and having an arm almost severed, medical
treatment would be required. It is like the old joke wherein a young reporter for a Washington
newspaper asks Mrs. Lincoln, Aside from the unfortunate incident with your husband, how did
you enjoy the play?
Q. Now did you file suit over this?
A. Yes, in federal and state court. The Indiana Supreme Court ruled for the first time that a
prisoner could sue the State of Indiana for actions of guards-they handed down what is
considered a landmark decision-I set a precedent in being allowed to sue the state.
Q. All right. Now when were you arrested for the offense down in New Whiteland?
A. Some three days after that decision was passed down. I think that they were out to get me.

All of the above questions and answers were not relevant to the sole issue for determination
by the jury in this phase two of the trial. The sole issue was whether Roberts had a previous
conviction for robbery.

He had already been found guilty of murder in phase one.

The

prosecutor did not object to any of the questions. He probably did not want to possibly alienate
the jury by objecting and appearing to limit the defendant in making his defense. He wanted to
appear fair.

189

FURTHER DIRECT EXAMINATION BY MR. JONES:


Q.

Now, I want to ask you, Mr. Roberts, one more question.

Did you unlawfully and

feloniously kill and murder anybody in New Whiteland, Indiana, on the 20th day of January,
1974 having then and there a prior unrelated conviction of the crime of robbery? I want you to
look at the jury and tell them if you did that.
OBJECTION BY MR. GANTZ:
Your Honor, the jury has already found the defendant guilty and now he is trying to say he is
not guilty. His answer is immaterial, irrelevant and self serving.
THE COURT: Objection overruled. You may answer, sir.
There was a hush in the courtroom. The jurors seemed to lean forward not to miss his
testimony.
A. I-no, Ive never been to New Whiteland prior to being arrested-never in my life. I swear to
you before God that I did not murder the Harolds. I am innocent. I beg you to be merciful.
Roberts made no further statement.
The prosecutor did not cross examine Roberts.
There was no further evidence introduced by the defense or by the prosecution.
I told the jurors that they had now heard all of the evidence in this case and that they would
now hear the closing statements of the prosecutor and the defense.

Mr. Gantz in his closing statement reminded the jury that the sole question for their
determination was whether the defendant, David James Roberts, had a prior conviction of armed
robbery or robbery. If so, they had a duty under the law to sentence the defendant to death. The
evidence of his prior conviction was uncontroverted. The state had proved beyond a reasonable

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doubt, in fact beyond all doubt, that the David James Roberts who was convicted of armed
robbery in the Lake County Criminal court was the same identical person as the defendant.
Mr. Jones in his closing argument reminded the jury that they were the judges of not only the
facts but also of the law. As you were instructed by Judge Berger, if any of you have a
substantial reason to disregard the law, then you can do so. If there ever was a substantial reason
to disregard the law, then this case is a perfect example. The evidence discloses that David
Roberts was convicted of armed robbery based upon a charge of stealing one dollar and fifty
cents! He was twenty-two and this was his first offense. He admitted to police that he had stolen
forty dollars but he was only charged with stealing one dollar and fifty cents. To sentence David
James Roberts to death for the theft of one dollar and fifty cents or even forty dollars is cruel and
unusual punishment and is not proportional punishment. It is thereby forbidden by the United
States Constitution and the Indiana Constitution. The Indiana Constitution specifically states
that all punishments must be proportional to the offense and that the penal code shall not be
founded on vindictive justice. You took an oath as a juror to render a fair verdict. The only fair
verdict in this case is to disregard the harsh strict application of the law, which Judge Berger said
you could, follow the Indiana Constitution, and determine that David James Roberts should not
be sentenced to death based upon a charge and guilty plea of stealing $1.50. If you believe that
the defendant has a prior unrelated robbery conviction, then the only fair verdict is to sentence
the defendant to life imprisonment.

After these closing arguments, I read further instructions to the jury. The jury retired to
deliberate.
After two hours of very serious deliberation, the jury returned their verdicts.

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The jury sentenced David James Roberts to death on Counts II, IV and V.

Again there was no reaction from Roberts and the courtroom was quiet. The jury was again
polled and all answered that it was their individual verdict that David James Roberts be put to
death.

I have been unable to determine from the jurors I interviewed whether there was any
discussion and sentiment by them concerning their right to judge the law and thereby refuse to
impose the death sentence solely because Roberts as a twenty-two year old had been convicted
of armed robbery of $1.50. Most probably, the circumstances of the crimes overrode any serious
consideration of this aspect and, as one juror stated to me, Three lovely lives were snuffed out
for no reason. Why should Roberts have a life?

The jury was thanked by me and excused from further service.


I then rendered Judgment of Conviction based upon the jury verdicts on all counts. I set the
sentencing hearing for December 18, 1975.
I directed Thomas Hanselman, the probation officer, to prepare and file his pre-sentence
report before that date.

Indiana law required a sentencing hearing and a pre-sentence report even though the
sentences were mandatory. The jury verdicts of life, death and five to twenty years were not
recommendations to me as judge which I could decide not to impose after a sentencing hearing.

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I had no discretion and had to enter the sentences found by the jury. In order to comply with the
law however, I set and held such a sentencing hearing.
The sentencing hearing was held on December 18, 1975, with the defendant and all counsel
present.
The pre-sentence report was filed by the probation officer.
In the report under Offenders Version of Offense it was stated, The defendant told me, I
didnt do it. I am innocent. I just cant believe all of this is happening to me.
The report also under Present Attitude stated, The defendants present attitude is very
good.

When I interviewed the defendant he answered my questions readily and without

hesitation. He has the feeling that some people in some parts of the system are out to get him.
He also told me that he was able to put it out of his mind. The defendant told me he has very few
regrets. One of the things he wished he would have done was become a pilot, and at one time he
would have liked to become a member of the Lake County Sheriffs department. The defendant
expressed the opinion that he could not see how the jury could have conscientiously returned
their verdict.

Without hearing any further evidence or argument of counsel (Roberts declined to make any
statement), I asked Roberts to stand and entered sentencing judgment as follows: Mr. Roberts,
pursuant to the verdict of the jury and Indiana law, I sentence you, David James Roberts, to life
imprisonment on Count I (intentional premeditated killing of William Harold with malice); to
life imprisonment on Count III (intentional premeditated killing of Elizabeth Ann Harold with
malice); to death on Count II (taking the life of William Harold while committing burglary
having committed an unrelated crime of robbery); to death on Count IV (taking the life of

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Elizabeth Ann Harold while committing burglary having committed an unrelated crime of
robbery); to death on Count V (taking the life of Jenny Harold as a result of arson having
committed an unrelated crime of robbery); and to five to twenty years imprisonment on Count VI
(arson in the first degree).

When I announced my sentences, I did not comment upon any aspect of the trial or direct any
statement to Roberts. I had made it a practice not to address a defendant at a sentencing even
when I had sentencing discretion (which I did not have in this case). Everyone knew the nature
of the crimes and the effect it had upon the victims family. Thoughts of rehabilitation were
meaningless when the sentence was death.

Most judges however at sentencing lecture a

defendant as to how horrible his or her conduct was, how it had devastated the victims family,
how the punishment was justified and should be accepted by the defendant, and, if not a death
sentence, that the defendant should work hard in prison to overcome his or her past. I do not
believe that a judge should pontificate upon the obvious-that a judge should flaunt his seeming
superiority of knowledge and morality. My motto was, The less said the better.

I then entered an order staying the execution of the three sentences of death pending appeal
to the Supreme Court of Indiana. The method of execution was by electric chair (changed to
lethal injection in 1995).

The sheriff was directed to deliver the defendant to the Warden of the Indiana State Prison.

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During the trial, except for determining whether there was sufficient evidence to avoid a
directed finding of not guilty, I was not concerned with the guilt or innocence of Roberts. That
was for the jury to decide. I was completely involved with making sure that the trial was fair and
that no errors of law occurred. As I now reflect upon the evidence, I wonder how I would have
decided if I had been on the jury. I believe that the evidence showed beyond a reasonable doubt
that Roberts purchased the red gas can found at the scene of the murders and that he had a
motive to murder to avoid imprisonment for the theft charge and possible parole violation. Who
else except a person with a motive would have come into this quiet middle class white
neighborhood and murdered the Harolds? But would I have been willing to find Roberts guilty
of murder knowing that he could also be sentenced to death? I am very glad that I was not on the
jury.

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PART THREE

THE APPEAL

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27
Motion to Correct Errors-Steuben Circuit Court
February 13, 1976

On February 13, 1976, the defendant filed a Motion to Correct Errors. One purpose of such a
motion is to give the trial judge the opportunity to correct errors that he might have made at the
trial and order a new trial if necessary. As you can imagine, not many of such motions were
granted. Also, to preserve any objections for review by the appellate court, the objections had to
be set forth in the motion.

The Roberts motion set forth eight rulings at trial by me which were alleged to have been
erroneous. It was also alleged that the evidence was insufficient to support Roberts conviction.
The motion also alleged that there was not sufficient evidence that Roberts had committed
burglary, a necessary element of a conviction under Counts II and IV. The motion further alleged
that the Indiana criminal statute under which Roberts was charged was in violation of the Eighth
Amendment to the United States Constitution which prohibits cruel and unusual punishments as
incorporated in the Fourteenth Amendment.

I directed the parties to file briefs concerning these matters and set hearing on the motion for
March 11, 1976. After several continuances of the hearing date, hearing was finally held on June
14, 1976. Charles Gantz and Tom Jones were at the hearing. Legal arguments were made and I
took the matter under advisement in order to review all of the legal citations and ponder my
decision. I announced that I would render my decision on June 24, 1976.

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I carefully read the relevant United States Supreme Court decisions cited by the attorneys. I
had serious reservations about the constitutionality of the Indiana death sentence statute. One
troublesome aspect of the statute was that it mandated a sentence of death for some murders and
mandated a sentence of life imprisonment for other murders without any apparent rational reason
for the distinction. As an example in the Roberts case a conviction under counts II, IV or V
mandated the death sentence for first degree murder if the defendant had an unrelated prior
robbery conviction. However, the statute mandated that the penalty for first degree murder if the
defendant had a prior unrelated first degree murder conviction was life imprisonment! If a
defendant has committed a prior armed robbery the sentence must be death but if the defendant
has previously murdered someone, the sentence must be life imprisonment! Determination of
the penalty for a criminal offense is traditionally a matter to be determined by the legislature and
courts defer to such determination. However such a distinction seemed manifestly unfair.

I was of the opinion that a more serious aspect of the Indiana death sentence statute was the
fact that a mandatory death sentence as in the Roberts case did not leave any discretion with the
jury to decide between a life sentence and a death sentence. Furman required, in determining a
sentence of death, that there be a consideration by the jury of not only the circumstances of the
crime but also the character of the defendant. I thought that mandating a death sentence does not
allow for such consideration and therefore a statute mandating death may be unconstitutional as
cruel and unusual punishment.

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I took a brief vacation with my family to Sanibel Island, Florida, to try and relax after the
emotional and mental strain of the trial. I especially wanted some quiet time to walk the beach to
consider my decision on the death penalty. I was at that time personally opposed to the death
penalty, and I did not want my personal opinion in any way to influence my legal opinion. In
my mind I went over and over the reasons why I should or should not declare the Indiana death
penalty statute unconstitutional. I remember on the last day of my vacation standing under the
beautiful and rustic Sanibel Lighthouse and reaching my decision.

On June 24, 1976, I rendered my decision.

I first denied the objections to the eleven rulings that I had made at the trial, and I further
determined that the evidence was sufficient for Roberts conviction.

I then ruled that the Indiana death statute which mandated a sentence of death if the defendant
had a prior unrelated robbery without giving the jury any discretion was unconstitutional as a
violation of the Eighth Amendment prohibiting cruel and unusual punishments as incorporated in
the Fourteenth Amendment to the United States Constitution.

I vacated the three death sentences I previously imposed under Counts II, IV and V and
imposed life sentences thereon. I let stand the two life imprisonment sentences imposed under
Counts I and III and the five to twenty years imprisonment under Count VI for Arson.

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My decision to declare the Indiana mandatory death sentence statute unconstitutional and
thereby vacate the death sentences, in effect agreed with and validated the argument of Tom
Jones in the second phase of the trial. In the second phase, the jury had imposed a sentence of
death rather than life imprisonment solely by virtue of a prior armed robbery of $1.50. The jury
must have thought that a death sentence for armed robbery was not unreasonable, not unfair, not
vindictive and not disproportionate. My decision basically overturned the jurys decision. The
Indiana Constitution states in Article I, Sec. 18 that, The penal code shall be founded on the
principles of reformation and not vindictive justice.

It is difficult to understand how

electrocuting a person aids his reformation.

There were no Federal or State Court decisions which directly addressed this matter except a
decision of the North Carolina Supreme Court which held that such mandatory sentences were
constitutional. This decision was on appeal to the United States Supreme Court.

It is rare that a trial judge will declare any act of the Indiana legislature unconstitutional. The
usual practice is to accept any such law and defer any constitutional challenge to the appellate
courts. I felt strongly about this matter and was not willing to defer even though my decision
would be contrary to the decision of the North Carolina Supreme Court.

The decision declaring the Indiana death penalty unconstitutional was not binding on any
other court in Indiana and was subject to being reversed by the Indiana Supreme Court. The
decision was not popular, except with the defendant, and some editorials were written strongly

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opposing the decision. I received several threatening anonymous letters. One stated that he
hoped someone would burn my wife and children alive.

On July 2, 1976, eight days after my decision, the United States Supreme Court in Woodson

v. North Carolina ruled unanimously that a mandatory death sentence was a violation of the
Eighth and Fourteenth Amendments and ordered the Supreme Court of North Carolina to reverse
the previous decision. The evidence disclosed that four armed men including Woodson, an
African-American, drove to a convenience store. Woodson, who claimed that he had been
forced to accompany the others, stayed in the car while two others went into the store. They shot
the clerk and a customer, took the money from the cash register and fled in the car. The clerk
died from her wounds. The jury found Woodson guilty of murder and sentenced him to death as
required by the North Carolina statute.
It is interesting to note that at the time of the adoption of the Eighth Amendment, all states
provided for mandatory death sentences for certain crimes.

By virtue of the Woodson decision of the United States Supreme Court, the Indiana death
sentence statute, which was similar to the North Carolina statute, became unconstitutional. I was
vindicated! To comply with the Woodson decision, the Indiana legislature in 1977 adopted a
comprehensive new murder statute that provided for a bifurcated trial if the death sentence was a
possible verdict, and set forth specific aggravating and mitigating circumstances which the jury
must consider and find before a death sentence could be imposed. There are no more mandatory
death sentences in the United States.

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Except for death sentences, other felony mandatory sentences, such as life imprisonment
without possibility of parole, are constitutional. A Michigan statute constitutionally requires
such a mandatory sentence for possession of more than 650 grams of cocaine.

If the Roberts case had been tried under the new 1977 Indiana act, the jury would have been
able at the sentencing phase to hear evidence concerning the Indianapolis rape, kidnapping and
murder charges. The jury might very well have constitutionally sentenced David James Roberts
to death.

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28
Judicial Review

My decision to declare the Indiana death statute unconstitutional was the exercise of the
power of a court (judicial branch of government) to declare the act of the Indiana legislature
(legislative branch of government) void.

The Indiana and United States Constitutions create three seemingly co-equal branches of
government (executive-legislative-judicial). The Constitutions do not specifically grant to the
judiciary the power to review legislative or executive acts or action and declare them void.
Where did I obtain such a power? The answer is John Marshall, third Chief Justice of the United
States Supreme Court, who served for thirty-four years beginning in 1801.

The United States Supreme Court had an inauspicious beginning. Alexander Hamilton wrote
in the Federalist, The judiciary is beyond comparison the weakest of the three departments in
power. The weakness of the early court was demonstrated by the fact that the new Capitol had
not provided for a court room or chambers for the new Supreme Court. When the Court moved
from New York to Washington in 1791, the Court held sessions in a plain room in the basement
beneath the Senate Chambers. It was not until 1935 that the court would have its own building.

The perceived weakness of the court changed drastically when President John Adams
appointed John Marshall in 1801 as Chief Justice at the age of forty-six.

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Many contemporaries of John Marshall had serious doubts as to his ability to be Chief Justice.
He was born in Fauquier County, Virginia, in 1755. He had very little formal education both
generally and in the law. His formal education consisted of being schooled by a clergyman for
one year and by a tutor who lived with the family for one year. The rest of his education was
acquired from his father who himself had a very limited education. His legal education consisted
of attendance at George Wythes lectures at William and Mary College for six weeks.
George Wythe was a signer of the Declaration of Independence and a kindly and scholarly
lawyer and jurist. In 1779, William and Mary College established a professorship of Law and
Police and the Williamsburg institution appointed him to occupy the chair. It was the first law
professorship in the United States. In 1806 he was tragically murdered by his grand-nephew.
His grand-nephew, seemingly in debt and anxious to receive his legacy, poisoned Wythes
coffee. The testimony of the only witness, a cook, was inadmissible in Virginia because he was
black, and the murderer was set free.

In 1818 the Indiana legislature passed an act excluding Negroes and Indians from testifying in
courts of law in which any white person was a party in interest. The law was repealed in 1865.

In spite of such educational deficiencies, John Marshall during his tenure established the
fundamental principles of the interpretation of the Constitution. Justice Oliver Wendell Holmes
stated, If American law were to be represented by a single figure, all would agree without
dispute that the figure could be one alone, and that one, John Marshall.
In 1803 John Marshall rendered his famous decision in Marbury v. Madison. That decision
established the doctrine that all actions of the legislative and executive branches of government

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are subject to review by the judicial branch and may be declared void if in violation of the
Constitution.
Justice Marshall stated that although such power is not specifically stated in the Constitution,
such power was necessary and inherent in establishing a constitution and a government pursuant
thereto. He stated that the Constitution confirms and strengthens the principle of judicial
review. Limitations on government power set forth in a constitution would be to no avail if no
legal mechanism (the courts) was available to enforce them.
When I rendered my opinion on June 24, 1976, declaring the Indiana death statute
unconstitutional, I was exercising the power of the court established by John Marshall 173 years
before. If I had not done so, David James Roberts may have been put to death pursuant to an
unconstitutional death statute.

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29
Cruel and Unusual Punishments

The Eighth Amendment states, Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.

The prohibition against cruel and

unusual punishments was considered a basic right of the citizens and first appeared in the

Massachusetts Body of Liberties of 1641. Such a right was set forth in the federal Bill of
Rights adopted in 1791 as the Eighth Amendment.

The prohibition against cruel and unusual punishments has two components. One component
is that the actual punishments should not be cruel and unusual. They can be cruel if they are not
unusual.

English and colonial history contain many cruel and unusual punishments. At one time using
the rack, whipping, dunking or drowning in water, the shaming post, branding, cutting off ears,
slitting noses, burying alive, beating to death and impalement were thought proper punishments.
Treason was punished by first hanging, then cutting down while still alive, then
disembowelment, then dismemberment. Such harsh and terrible punishments were never to be
allowed again.

The second component is that the punishments shall be proportional to the offense. The
Indiana Constitution states in Article 1, Section 16, Cruel and unusual punishments shall not be
inflicted. All penalties shall be proportioned to the nature of the offense. The concept of

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proportionality dates back to the Old Testament which proclaims an eye for an eye not an eye,
ear and hand for an eye!

Imposing a mandatory death sentence in the Roberts case is an example of a violation of the
proportionality component in the Eighth Amendment and the Indiana Constitution. The jury
must have the opportunity not only to hear the facts of the crime but also any mitigating or
aggravating circumstances before imposing the death sentence.

As noted in my opinion and the opinion of the United States Supreme Court, mandatory death
sentences violated the United States Eighth Amendment prohibition against cruel and unusual
punishments as incorporated in the Fourteenth Amendment. The doctrine of incorporation has
a long and interesting constitutional history.

It is very important to recognize that the Bill of Rights (Amendments I-VIII) were
prohibitions against federal government action. They do not impose limitations on state power
(what a state can do). When the Bill of Rights was adopted, the citizens wanted to make sure
that this new federal government that they had recently created did not infringe upon their rights.
They were not concerned about any laws that their state might adopt and enforce. Therefore the
Eighth Amendment did not prohibit a state from adopting and enforcing cruel and unusual
punishments.

The Fourteenth Amendment was adopted in 1868. The original purpose of the adoption of
the Thirteenth, Fourteenth and Fifteenth Amendments was to make the former slaves equal

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citizens. Such original purpose as to the Fourteenth Amendment has been drastically expanded
by the United States Supreme Court.

The Fourteenth Amendment prohibits a state from acting (as contrasted with federal action).
The Fourteenth Amendment does not specifically prohibit a state from imposing cruel and
unusual punishments as the Eighth Amendment does. However, among the many prohibitions
against state action contained in the Fourteenth Amendment are the words nor shall any State
deprive any person of life, liberty or property without due process of law. This is known as the
due process clause.

The meaning of due process had a long and consistent history in England, the colonies and the
United States. It meant that government must use a fair procedure before a person could be
deprived of his life, liberty or property. A fair procedure included the right to be advised of the
charges against him and to be given an opportunity to defend such charges before an impartial
tribunal. This later became known as procedural due process.

As early as 1857 in Dred Scott v. Sandford, the United States Supreme Court incorporated a
new concept into the meaning of due process. This new concept is called substantive due
process. The Dred Scott case held that taking property (slaves) away from the owner by
legislation (the Missouri Compromise) was arbitrary and unjust, and if a law was arbitrary or
unjust, it violated due process and was unconstitutional. This and subsequent decisions thus
gave the judicial branch the right to inquire into all legislation to determine it was arbitrary or
unjust.

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Starting during the 1925-1950 period, the United States Supreme Court began incorporating
within the due process clause another meaning never envisioned by the founding fathers. It was
determined that there were certain fundamental rights which if denied by government would
constitute a denial of substantive due process. What rights were a fundamental right and
therefore protected against federal action by the Fifth Amendment due process clause and
protected against state action by the Fourteenth Amendment due process clause would be
determined on as case by case basis.

During this period, the Supreme Court determined that the prohibition against cruel and
unusual punishments (federally prohibited by the Eighth Amendment) was a fundamental right
and therefore incorporated in and protected by the due process clause of the Fourteenth
Amendment.
During the period 1950-2013, the United States Supreme Court on a case by case basis
ultimately incorporated all but four rights specified in the Bill of Rights into the fundamental
rights concept protected by the substantive due process clause in the Fourteenth
Amendment.13 Therefore by virtue of the Fourteenth Amendment all citizens are protected
against a state taking action which violates the rights set forth in the first eight amendments
except four. The four exceptions are (1) the Fifth Amendment right not to be prosecuted for a
felony unless charged by a grand jury (as explained above the Roberts charges could have been
brought by the prosecutor merely filing a criminal Information), (2) the Seventh Amendment
right to a civil jury trial in all actions seeking $20.00 or more in damages, and (3) the Third
Amendment right not to be forced to house soldiers in peacetime (which if ever claimed would

209

be held to be a substantive right), and (4) the Eighth Amendment right prohibiting excessive
fines.

It was not until 2010 that the Second Amendment right to bear arms was declared to be a
substantive due process fundamental right protected against state action by the Fourteenth
Amendment (McDonald v. Chicago).
Thus each state can begin a criminal prosecution by a criminal Information approved only by
the prosecuting attorney and can deny or limit a jury in civil cases, all subject to the states
Constitution.

In addition to most of the first eight amendment rights being determined to be fundamental
rights and therefore incorporated in the due process clause of the Fourteenth Amendment and
binding upon the states, many other rights have been determined to be protected fundamental
rights. These include the very controversial right to privacy which has been determined by the
United States Supreme Court to include the right to an abortion and the right to contraceptive
information and usage.

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30
Indiana Supreme Court Decision
May 5, 1978

The ruling on the Motion to Correct Errors was duly appealed, briefed and argued before the
Indiana Supreme Court by prosecution and defense counsel. The prosecution did not appeal.

The Indiana Supreme Court consisted of five members.

One member, Justice Roger

DeBruler, had previously been judge of the Steuben Circuit Court and upon his appointment to
the Supreme Court was succeeded by Judge Louis Sisler. Another member, Justice Richard
Givan, was an Indiana Law School classmate and close friend of my previous law partner.

The Indiana Supreme Court opinion in Roberts v. State of Indiana was rendered on May 6,
1978. Justice Givan wrote the opinion of the court.

Several days after the Supreme Court decision was officially entered I received notice of the
decision by mail. As I opened the envelope I nervously wondered- Had I been reversed? Had I
made any mistakes in my rulings? Would the trial have to be held again? All of these thoughts
came rushing through my mind. With trepidation I opened the envelope and slowly read the
decision.

The trial court decision was affirmed.

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The Indiana Supreme Court unanimously found that the evidence sustained the verdicts and
that no error had been committed by me in my rulings at trial. The trial rulings were objected to
on the basis of the best evidence rule, hearsay evidence being admitted (there were seven specific
objections in this category), improper foundation being laid for the introduction of documentary
evidence, inaccurate and inflammatory photographs being admitted and prejudicial questions
being allowed.

The Indiana Supreme Court further affirmed the vacation of the death sentences and the
imposition of three life sentences based upon Woodson and French. The court did however, by
virtue of a recent decision, vacate the sentence of five to twenty years rendered upon the Count
VI Arson conviction as being included in the life sentence rendered for the murder of Jenny
Harold under Count V.

Justice Prentice agreed to the opinions of the other justices except that he dissented as to the
guilty verdicts on Counts II and IV as these charges required a finding that the defendant had
committed burglary.

Burglary is defined as a breaking and entering with the intention of

committing a felony. The Roberts jury had also been concerned with this aspect. Justice
Prentice believed that there was not sufficient evidence of a forceful breaking into the Harold
house (if a person enters a house through an open window or door it is not a technical breaking).
The other four justices believed that there was sufficient evidence of a breaking and stated in
their opinion, The Jury could have reasonably inferred from the evidence of a struggle inside
the house and from the other facts leading up to the night in question that Roberts was not an
invited guest of the Harolds and that his entry was attained by force.

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In French v. State of Indiana decided on May 6, 1977, the Indiana Supreme Court formally
struck down the Indiana 1973 death statute under which the Roberts case was tried based upon
Woodson, thus effectively affirming my decision in Roberts.

It is interesting to note that in the French case the trial judge did not declare the Indiana
mandatory death sentence unconstitutional as I did.

The French trial judge upheld it and

sentenced French to death. The majority opinion of the Indiana Supreme Court (who were
elected at that time) stated, Although the writer of this opinion does not agree with the present
reasoning of the United States Supreme Court opinion upon the issue here involved, we have
taken an oath to support the Constitution as interpreted by that Court. We have no alternative but
to hold that the 1973 Indiana statute is unconstitutional. Justice DeBruler agreed completely
with the reasoning of the United States Supreme Court. He did not pander to the electorate.

Tom Jones filed a Petition for Rehearing before the Indiana Supreme Court which was
denied.

Roberts on his own behalf from prison obtained a complete transcript of the proceedings in
anticipation of filing a Petition for Post Conviction Relief with the Steuben Circuit Court. Such
a petition was never filed.

Roberts, still protesting his innocence and claiming that the system was out to get him, filed a
Petition for Writ of Habeas Corpus with the United States District Court for the Northern District

213

of Indiana. He claimed that his detention by state authorities was unlawful and wanted the
federal judge to order his release. The District Judge denied his request.

There have been no further state or federal court proceedings.

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31
Northwest of Indianapolis
October 25, 1986

On the morning of October 25, 1986, I was reading the Fort Wayne Journal Gazette and on
the fifth page I saw a brief article with the headline MURDERER ESCAPES. I was in a hurry
and almost skipped reading the article. Curiosity prevailed and I read it. David James Roberts
had escaped from custody the previous day.

Roberts had been held since his convictions at the Indiana State Prison at Michigan City,
Indiana, which is fifty miles east of Chicago, Illinois. The prison was built during the civil war
to house Confederate prisoners.

Three out of four of the two thousand prisoners were

imprisoned for murder, making it one of the most dangerous prisons in the country.

Roberts had chronic lung problems and was often transported by prison guards from the
Indiana State Prison to the Wishard Memorial Hospital in Indianapolis, Indiana, for treatment.
Before leaving the hospital after treatment, Roberts was strip searched and shackled. When he
was being transported back to the prison, a stop was made at a fast food restaurant. Roberts was
allowed to go to the mens room. The guards stood outside. Upon leaving the rest room Roberts
produced a .38 caliber handgun and ordered the guards to go to the parking lot. They all entered
the police cruiser and a guard drove as directed to a nearby rest stop. At the rest stop Roberts
forced the guards to unlock his shackles. The guards were handcuffed and Roberts went to a

215

payphone. While Roberts was on the phone, the guards ran into the adjoining woods and
escaped. Roberts then drove away in the cruiser heading northwest toward Illinois.

Obviously Roberts had help in his escape. Someone had to have placed the handgun in the
mens room. Somehow Roberts had gotten the guards to stop at the right restaurant. The police
speculated that one of Roberts cellmates may have been his accomplice. The mystery was never
solved. Both officers were subsequently disciplined for negligence in handling Roberts. One of
the guards confessed to trafficking in contraband for prisoners and was summarily dismissed.

Roberts drove twenty-five miles to the next rest stop. A nondescript older car with the
ignition keys under the front seat was waiting for him. He changed vehicles and drove north to
the Indiana Toll Road and headed east toward New York City. The Indiana State Police alerted
the police in the Gary and Chicago areas to be on the alert for Roberts. His family was closely
watched.

Because of Roberts history of revenge, the Indianapolis rape victim was moved by the police
to an undisclosed location for a week. As a precautionary matter, the Angola City Police made
extra patrols in my Angola neighborhood for several days.

Escape and kidnapping charges were filed against Roberts.

On April 27, 1987, Roberts was placed on the F.B.I. Most Wanted List.

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32
Americas Most Wanted
February 7, 1988
The first episode of the Americas Most Wanted show, hosted by John Walsh on the new Fox
Network, was aired February 7, 1988, seventeen months after the escape of David James
Roberts. The first episode featured David James Roberts, his crimes and his escape. Although
the program launched with the challenging statement Watch Television-Capture Fugitives no
one knew if it would really work. Fox was a new network then, and Americas Most Wanted
showed only in a few areas.

Roberts was the only one featured that night, and as soon as the first commercial break
started, the hotline began to receive calls. More than seventy-five calls were received. Most of
the tips came from people in the New York City area.

One of the first calls to the hotline was from a woman in New York City claiming she was the
girlfriend of a person named Bob Lord. She stated that she lived with him and that he showed a
remarkable resemblance to David James Roberts.
She further stated that he had become ill and had gone to a hospital emergency room.

The New York City police and FBI immediately started their investigation. The woman
identified Roberts as her boyfriend after being shown his photograph.

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When authorities arrived at the hospital, they discovered that Roberts had suddenly checked
out. When they went back to his room they discovered a copy of TV Guide laid on his bed
opened to the story of David James Roberts on AMW.

Further investigation uncovered the fact that he was the director of a homeless shelter for men
on Long Island and was known as Bob Lord. He had been earning an $18,000.00 annual salary.
Everyone at the shelter was shocked. He was thought to be a friendly, caring and conscientious
worker whom everyone liked.

Four days later on February 11, 1988, Roberts was captured without a struggle hiding out in
an apartment in New York City.

Roberts was the first fugitive captured who was listed on the newly established F.B.I. Most
Wanted List.

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On January 27, 1989, Roberts plead guilty to escape and kidnapping, was sentenced, and was
returned to the Indiana State Prison.

John Walsh interviewed Roberts after his capture. Roberts was asked how he felt after he had
been profiled in the AMW show. Roberts stated that he was under great pressure. He knew he
had to leave the New York area immediately. He did not know where to go. He could not go
back to the Chicago area because the police would be looking for him there.
John Walsh asked Roberts, How can you live with yourself knowing that you murdered two
adults and two infants? Roberts answered, I can live with myself because I am not guilty of
murdering anyone. Just because I was convicted does not mean that I am guilty.
Roberts further stated, The Americas Most Wanted program may have put persons who had
not committed any crime back in prison. How do you feel about that, sir? John Walsh did not
answer.
Roberts then stated, Mr. Walsh, I have had many despondent periods during my
incarceration but I try to keep my spirits up. I constantly ask God why all this has happened to
me. I hope that someday justice will at last prevail and someone out there will come forward
with information that proves my innocence.

Thus ends, for now, the extraordinary tale of David James Roberts.

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EPILOGUE

David James Roberts is currently serving four concurrent life sentences at the Pendleton
Correctional Facility, Pendleton, Indiana.

Roberts civil law suit for damages against the

Pendleton guards and the State of Indiana was ultimately settled. The amount of the settlement
was confidential and not revealed.
Callie Loraine Myers, Roberts girl friend, after the Roberts trial, attended law school, was
graduated with honors and entered the practice of law. She later became a well respected judge
presiding over non criminal matters.
Marie Harold was adopted by a loving aunt and uncle and has led a normal life. I recently
received an email from Marie Harold as follows: I just wanted to take this opportunity to thank
you for writing the book, Change of Venue. It was a little difficult at first to read with the
pictures and details described in the book. You see, I am the surviving daughter and sister of the
couple and baby who were murdered on January 20, 1974. The book answered many of my
questions that family members could not talk about. I just wanted to thank you for speaking and
writing the truth in regard to my family.
D. Charles Gantz founded Charles Gantz & Associates, a very successful law firm. He is still
actively engaged in the general practice of law with emphasis on criminal defense.
Joe Van Valer founded the Van Valer Law Firm after his tenure as Prosecuting Attorney. He
continued his legal career specializing in construction, real estate and corporate law. He passed
away January 16, 2011, surrounded by his family.

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Tom Jones was the senior founding partner of the law firm of Jones, Auger and Auger. He
specialized in criminal defense and personal injury law. He was the only Indiana lawyer listed
each year since 1987 in the categories of criminal defense and personal injury in Best Lawyers in
America.

He died on February 24, 2007 as the result of an automobile accident.

The

Indianapolis Star commented, With the passing of attorney Tom Jones we lost a well liked and
generous resident rooted in the history of Johnson County.
After I had served eight years on the bench as the sole judge of the Steuben Circuit Court, and
having been the only judge in the county with general jurisdiction, I was exhausted both
physically and mentally. I had begun as judge with high expectations of helping others resolve
their problems and participating in the administration of justice. I was excited to take on the
challenges. I was nave. It did not take long before I was exposed to the raw underbelly of
society. How could people act this way without any regard to others? I had never been exposed
to or could imagine such actions. Persons appearing before me were murderers, rapists, burglars
and thieves. Some defendants had committed incest, child abuse or domestic violence. Some
were mentally ill, alcoholics or drug abusers. Married couples could no longer stand each other
and could not wait to get a divorce. My actions and decisions as judge were necessary steps in
the judicial process but I was wearing thin and it was taking its toll on me. I had given my best
but after eight years I had seen the elephant. It was time to move on and I resigned as judge.
After I retired from the bench I became Professor of Law at Tri-State University where I
taught various law courses for twelve years. My wife of forty-two years, Susanna Ellen, died in
2005 of breast cancer. My two children live in Angola. I am now doing legal research, writing
and lecturing in an attempt to help with legal education of attorneys. I would like to be a good

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father and keep active as long as possible for, as in Robert Frosts insightful poem Stopping by

Woods on Snowy Evening:

The woods are lovely, dark and deep.


But I have promises to keep,
And miles to go before I sleep,
And miles to go before I sleep.

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AUTHORS COMMENTS

The opening and closing statements of counsel at the trial were not recorded, were not a part
of the official transcript and are therefore unavailable to me. Since I do not remember these
statements after more than thirty years, I have taken the liberty of writing the statements as I
would have made them if I had been the prosecutor and defense counsel. I hope that I have done
them justice.
Since I was not privy to the jury deliberations, I have stated them as reported to me by two
surviving jurors and the widow of the foreman.
The story portrays actual characters and facts. The trial testimony and exhibits are taken from
the official Indiana Supreme Court 1400 page transcript. I have changed the names of the
victims and non police witnesses to protect their privacy.
In my mind there were two troublesome questions remaining after the trial.
One was the twelve year imprisonment sentence that Roberts received for the 1966 Crown
Point armed robbery of $1.50 in 1966. This seems excessive for a first offense. However, this
sentence was the result of a plea bargain agreed to by Roberts. Why would Roberts agree to
such a sentence?
Roberts explained the events to his Admissions Officer at Pendleton Reformatory as follows:
At the time of my crime, I was by myself. I saw three ladies in a car, and approached them
and told them: this is a stick-up. I took $40.00 and fled. I was apprehended six blocks from the
scene of the crime by the police.

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My recent search of the Lake County Superior Court records reveals a different story. There
were actually five felony charges filed on March 15, 1966, against Roberts (involving two white
women and a white man) including the original charge of Robbery ($1.50) from Mildred
Wiscolik, which was changed by Amended Affidavit to Armed Robbery ($1.50) and to which
Roberts plead guilty; Inflicting Injury (striking, beating and wounding) Upon Mildred Wiscolik
in the Perpetration of an Attempted Rape; Robbery of a ring ($300.00) and cash ($52.00) from
Richard Lenoski; Kidnapping (forcibly kidnap, imprison and carry off) of Lynette Harnish; and
Rape (forcibly ravish and carnally know) of Lynette Harnish. As a result of the plea bargain, the
four additional charges were continued and Roberts plead guilty to an Amended Affidavit
charging only armed robbery of $1.50. Because of the severity of Roberts alleged actions and
the possible total sentence on all five charges, the agreed to twelve year sentence seems
reasonable. Roberts attorney at that time, Max Cohen, recently stated to me that he thought that
the sentence was fair and that Judge John McKenna usually set the terms of any plea agreement.
The four additional charges were never tried and were dismissed on October 27, 1976 upon
motion of the Lake County prosecuting attorney by virtue of the Steuben County and Marion
County five life sentences. The Steuben County Roberts jury was not aware of the Lake County
four additional original charges during their deliberations.

The second question was the possible involvement of Douglas Milford who may have been
seen driving near the Harold house the morning of the fire. Lieutenant John Lasiter, the Johnson
County Deputy Sheriff who was a primary investigating officer, stated to me recently that the
New Whiteland volunteer fireman who, according to his testimony, picked out the photograph of
Douglas Milford as the probable driver of the large brown car the morning of the fire, was not

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certain at all of the identification. The fireman stated to Lieutenant Lasiter that of the six photos,
the one of Milford most nearly resembled the driver. The fireman had little exposure to AfricanAmericans. There were no African-Americans living or working in the area and unless a person
worked with African-Americans routinely in Indianapolis or had other regular exposure to
African-Americans (which he did not) he could not have identified a specific African-American
with any degree of certainty. This is why Lieutenant Lasiter and Charles Gantz did not consider
Milford as a suspect. It very well could have been Roberts checking to see the extent of the fire
and if any evidence left behind was destroyed.
Lieutenant Lasiter also stated that he drove Roberts back and forth between Angola and
Indianapolis during the trial. From the statements made by Roberts on these trips, Lasiter
believed that Roberts was convinced that the white officers and prosecutors were out to get him
and that he hated all whites. All of his victims had been white.

When I taught law at Tri-State University, I used the Roberts case as the framework to teach
criminal and constitutional law and procedure.
The Roberts case was an excellent introduction to important procedural and substantive
aspects of criminal law. It allowed me to illustrate how the United States Constitution is applied
to an actual criminal case. The printed words of criminal statutes and the Constitution were
brought to life.

Words and phrases such as grand jury, murder, voluntary manslaughter,

involuntary manslaughter, burglary, arson, arraignment, omnibus hearing, voir dire, jury
instructions, death sentence, lesser included offenses, jury nullification, appeal, cruel and unusual
punishments, Fourteenth Amendment and substantive due process became the fabric of a modern
criminal trial. They were no longer abstract theories or rights.

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A primary question raised by the above events, assuming the jury verdict was correct, is how
could Roberts commit such heinous acts? His childhood seemed normal. He had loving and
caring parents.

There was no neglect or abuse.

He was educated and above average in

intelligence. Is there sometimes a defect in a persons genome which alone results in compulsive
criminal behavior without regard to the harm to others? We are told that we were created by a
loving God for a purpose. Why was David James Roberts created?

Why were William,

Elizabeth and Jenny Harold murdered?

If you have not already done so, there are two classic books that you should read which are
examples of murder without conscience: The Bad Seed by William March, an excellent fictional
story of Rhoda Penmark, age eight, and the nonfiction novel In Cold Blood by Truman
Capote, a beautifully written true account of Dick Hickock and Perry Smith.

Finally, my sincere wish is that the telling of the Harold tragedy will contribute to a better
understanding of our judicial process and of the Constitution, and, most of all, thereby give some
meaning to the tragic deaths of William, Elizabeth and Jenny Harold.

John R. Berger
Angola, Indiana
January 1, 2015

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JOHN R BERGER
January 1, 2015

227

BIBLIOGRAPHY

Marbury v. Madison, 1 Cranch 137 (1803)


Dred Scott v. Sandford, 19 How 393 (1857)
Buck v. Bell, 274 U.S. 200 (1927)
Mapp v. Ohio, 367 U.S. 643 (1961)
Gideon v. Wainwright, 372 U.S. 335 (1963)
Miranda v. Arizona, 384 U.S. 436 (1966)
Furman v. Georgia, 408 U.S. 238 (1972)
Woodson v. North Carolina, 428 U.S. 280 (1976)
French v. State of Indiana, 362 N.E. 2d 834 (1977)
Stump v. Sparkman, 435 U.S. 349 (1978)
Roberts v. State of Indiana, 375 N. E. 2d 215 (1978)

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UNITED STATES CONSTITUTION


AMENDMENT IV (1791)
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by Oath or affirmation and particularly describing the place to be
searched, and the persons or things to be seized.
AMENDMENT V (1791)
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in the cases in the land or naval forces, or in
the Militia, when in actual service in time of War or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself; nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just
compensation.
AMENDMENT VI (1791)
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the state and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and cause

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of the accusation; to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defense.
AMENDMENT VIII (1791)
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
AMENDMENT XI (1798)
The Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.
AMENDMENT XIII (1865)
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party
shall have been duly convicted, shall exist within the United States, or any place subject to their
jurisdiction.
The Congress shall have the power to enforce this article by appropriate legislation.
AMENDMENT XIV (1868)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction
thereto, are citizens of the United States, and the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws.

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AMENDMENT XV (1870)
The right of the citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude.

The Congress shall have the power to enforce this article by appropriate legislation.

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NOTES

1. The naming of Indiana and the XI Amendment: The area compromising the present state of
Indiana was part of the Northwest Territory created by Congress in 1787. It was called Indiana
Territory and was the area left after the Ohio Territory (1800), Michigan Territory (1805) and
Illinois Territory (1809) were carved out. Indiana became a state in 1816 and included all of the
area left of the original Indiana Territory. The name Indiana was borrowed by Congress and
came from the name of about two million acres of land called Indiana (land of the Indians) in
western Virginia Colony claimed by the Indiana Company by virtue of a 1768 deed from the Six
Nations of the Iroquois. The name of this area was abandoned and available to Congress after
1798 when Virginia successfully asserted ownership of this area as Augusta County and the
Indiana Company went out of existence. The Indiana Company had filed suit (a Bill in Equity)
in the United States Supreme Court in 1792 against Virginia requesting the Supreme Court to
issue an order to Virginia to cease interfering with the Indiana Company title. Virginia ignored
all subpoenas issued by Chief Justice John Jay to appear before the Supreme Court. The
subpoenas were titled, The President of the United States to Henry Lee, Esquire, Governor of
the Commonwealth of Virginia. Virginia successfully delayed the case until passage in 1798 of
the XI Amendment which forbad such suits against a state. By virtue of this amendment, the suit
was dismissed by the Supreme Court in 1798.
See The Naming of Indiana at www.in.gov/history/2805.htm for the complete story.

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2. Angola had the dubious distinction of being the Midwest Marriage Capitol until about
1960. Indiana at that time did not require any residency or waiting period in order to be married.
All adjoining states had strict waiting period requirements and Angola, being five miles from
Michigan and Ohio, was a natural for couples who could not wait to be married (for a variety of
reasons).
The marriage procedure took about two hours and was outlined in a handy flyer available at
the Circuit Court Clerks Office. First a couple was advised to go to one of the two friendly
competing hospital labs (Elmhurst Hospital and Cameron Hospital) and have their blood tests
taken for syphilis as required by Indiana law. If either tested positive, the couple was out of luck.
Other venereal diseases were inexplicably not tested. The next step was to wait for one hour,
preferably at Ollie Bassetts restaurant (upstairs dining room and counter or newly remodeled
basement bar) until the lab tests were reported to the clerk. Katherine Hepburn and her dog had
eaten lunch at Bassetts in 1941. There was a photo of her with her dog at Bassetts.

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After the hour, the couple would go to the clerks office and apply for the marriage license.
On a usual Saturday, there would be a line of happy couples and friends stretching from the
clerks office, out the courthouse door, around the corner First National Bank and to the Post
Office one block away. Many of the brides-to-be waiting in line, some obviously pregnant, wore
complete long wedding gowns with veils. Many men wore tuxedos. Once the couple had
completed the marriage application questionnaire for the clerk (Are either of you now married?
Do either of you have any children? Are either of you insane?) the clerk would offer the couple
a choice between the standard Indiana marriage license poorly printed on cheap thin paper or the
deluxe version with faux leather cover and a genuine facsimile gold Indiana Seal for only
twenty-five dollars more. The clerk was allowed to pocket the twenty-five dollars. Naturally the
husband-to-be would choose the deluxe version to impress his beloved. Naturally, the clerks
position was highly contested at election time.

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The next step was to find a justice of the peace or minister to marry the happy couple. All
were conveniently located within a block of the court house. There were two justices of the
peace, Con Smith and Harvey Shoup. Both had their wives available as official witnesses to the
marriage ceremony. Both were adept at performing a meaningful but hasty ceremony with many
quotations from the bible and other learned sources. After the ceremony, the justice signed the
marriage certificate and bid farewell to the newlyweds.

Both justices were amenable to

accepting gratuities (the flyer suggested fifty dollars). The justice of the peace elections were
also highly contested. If the couple wished to have the marriage performed by a minister, a small
garden wedding chapel with flowers and an organist was available only one and a half blocks
from the courthouse according to the map drawn on the flyer (suggested price including all
services and gratuity-$100.00).
The nearby motels were filled with newlyweds. I think about half of the citizens of northern
Ohio and southern Michigan had been married in Angola.
There were no mixed race couples waiting in line to be married. Indiana law from 1840 until
1965 made miscegenation a crime and provided that sexual intercourse or marriage between
whites and blacks could be punished by a fine not to exceed $5,000.00 and imprisonment not to
exceed twenty years. Blacks were defined as having one-eight or more Negro blood.
In addition to the Clerk of Court and Justice of the Peace positions, there was one other
position which was highly sought after.

This was Sheriff of Steuben County during the

Prohibition era (1919-1933). One of the main routes for the transportation of liquor was from
Canada to Detroit, then south to Ohio near Edon, then westward along what is now U.S. 20
through Steuben County and Angola, and then continuing westward to Chicago and Al Capone
and associates. It was reported that bootleggers were often met in Steuben County at the

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Indiana-Ohio line by the Steuben County Sheriff who was collecting donations to the police
benevolent society. It was an early version of the Indiana Toll Road.
According to a 1930 article in the Steuben Republican, the local newspaper:
By virtue of the Prohibition law (the 1919 Volstead Act) Steuben County has recently
suffered several black eyes. The federal government charged that Steuben County Sheriff
Charles Zimmerman aided bootleggers in transporting liquor through the county.

Charles

Zimmerman faced three separate criminal law suits in federal court in Fort Wayne, two for
violating the Prohibition law and one for murder of a witness. Zimmerman was also said to have
been paid protection money by a Steuben County resident who sold and manufactured liquor in
Steuben County.
In one example dated 1927, Zimmerman allegedly transported twenty cases of whisky from
the Powers School, which is just west of the Ohio line, to Angola. To keep his illegal activity
flowing, Zimmerman allegedly paid protection money to a federal prohibition officer through an
Angola attorney. Zimmerman obtained dubious acquittals on all three charges. In one case a
witness changed his story and refused to finger the sheriff. In another case, the governments
witness, the officer to whom Zimmerman allegedly paid bribes, disappeared just prior to trial.
Zimmerman was vigorously defended by a powerful and expensive defense team. Among the
attorneys representing Zimmerman were Angola attorneys Alphonso C. Wood, soon to become
an Indiana Appellate Judge (1931-1938), his son, Theodore Wood, later to become President of
Tri-State University, and Dudley Gleason, Sr. of the firm of Gleason & Gleason.

3.

I was only threatened twice. The first time was during the Roberts case. The second was

after I had left the bench. Having courthouse security would not have saved me from either

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threat. In the later threat, I received a call from a Michigan probation officer after he had
completed an exit interview. He had just had a conversation with a convict named Clark who
was about to be released after five years in a Michigan prison for arson. I had sentenced Clark to
jail in Indiana for arson about ten years before for burning down a cottage at Hamilton Lake.
The officer had asked the convict what he intended to do after release, expecting an answer
concerning where he would live and work. Clark replied, Well, the first thing I am going to do
is go back to Angola and burn Judge Bergers house down and I hope he is in it. I thanked the
officer for this information and wondered what I could do about it. The next day I received
information from our local police that Clark had indeed burned a house down early that morning
but that the house was in Ashley, a town about fifteen miles away.
I guess I was lucky and someone else was higher on Clarks To Do list.

4.

Cincinnati was known as the Queen City of the West by virtue of being the early

commercial metropolis of the Ohio Valley. I grew up in Cincinnati but the main attraction to me
as a seventeen year old was across the Ohio River in the city of Newport, Kentucky, and the
Tropicana nightclub. During the Civil War and for the next hundred years Newport in Campbell
County was known as The Sin City of the South with rampant prostitution, gambling and
national-crime-syndicate operations. The story of Newport, and of the Notre Dame, New York
Yanks and Cleveland Browns quarterback hero, George Ratterman, who ran as the reform
candidate for sheriff of Campbell County in 1961, is dramatically set forth in The Great

Kentucky Scandal, an October 24, 1961 article by Bill Davidson in Look Magazine. The story
starts with police entering a motel room at the Glenn Hotel (connected to the Tropicana) and
finding Ratterman allegedly clad only with a shirt and socks in bed with a long-legged strip-

237

teaser named April Flowers dressed in a slave robe with leopard-skin design with her bosom
showing.

The state court trial of Ratterman for soliciting prostitution came to a sudden end

when the prosecutor dismissed the charges after hearing evidence that Ratterman may have been
drugged. The story ends just before a newly appointed United States Attorney General Bobby
Kennedy sends a young federal prosecuting attorney, Ronald Goldfarb, from Washington to
Newport to try and obtain federal indictments against the participants in Rattermans false arrest
and an attorney, Charles E. Lester, who is mentioned in the Look article and had represented
some of the defendants in prior state charges arising out of the events of that fateful night.
See www.nkyviews.com/campbell/text/txt_newport_look.htm for the full article.

1961 SHERIFF CANDIDATE

1950 NEW YORK YANKS

GEORGE RATTERMAN

My research indicates the following later events.


At the insistence of thirty-four year old newly appointed U.S. Attorney General Robert
Kennedy, the brother of President Jack Kennedy, a federal indictment was obtained and filed in
federal court in October of 1961against Charles E. Lester, a well known and respected criminal
defense attorney; Edward Marty Buccieri, the owner of the Tropicana and Glenn Hotel; Tito
Carinci, the manager of the Tropicana; and three police officers, Quitter, White and Ciafardini.

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Robert Kennedy would preside over a Justice Department with over thirty thousand people. He
had limited legal experience and had never been in a courtroom.
The charges were misdemeanor conspiracy to violate the civil rights of George Ratterman.
They were charged with having a common agreement to discredit Ratterman by falsely
arresting and charging him. The government was represented by lead attorney twenty-nine year
old Ronald Goldfarb, two assisting attorneys and a special FBI consultant, Frank Staab, who was
convinced that Lester was behind much of the legal arrangements shielding illegal operations in
Newport. Staab had made an exhaustive investigation throughout the United States and had held
over five hundred interviews in an attempt to uncover evidence against these defendants and
others. Robert Kennedy wanted to charge the defendants with kidnapping across state lines but
was unsuccessful in obtaining any evidence thereof. Goldfarb and his legal assistants were
assigned to the case by Robert Kennedy.

They were special prosecutors in the Justice

Departments Organized Crime and Racketeering Section. They were sent from Washington to
prosecute these misdemeanor charges. Goldfarb was all excited. This was his big chance to
make a name for himself prosecuting mobsters.
A federal jury trial was held and the jury could not agree on a verdict. Even though a retrial
of a misdemeanor charge is rare and very expensive, the federal prosecutor, Ronald Goldfarb,
with extreme pressure from Robert Kennedy, presented the case again to a new jury. In August
of 1963, the second jury convicted Lester and Buccieri of conspiring with the police to have the
police arrest an innocent Ratterman. The jury decided however that Carinci was not guilty of
conspiracy and that the police, Quitter, White and Ciafardini, did not knowingly falsely arrest
and charge Ratterman and were found not guilty! The only evidence against Lester, as set forth
in the above Look article, was that he had asked photographer Thomas Withrow to contact

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Buccieri about taking some photographs.

Whose photographs, where and when was not

discussed by Lester. The photographs were never taken. Lester explained in his testimony that it
was his understanding that Withrow would be hired to take photographs of patrons at the
Tropicana nightclub, not of Ratterman in the Glenn Hotel room.
Lester and Buccieri were sentenced by federal district court Judge Swinford to twelve months
in federal prison, the maximum allowed by law. Such a severe penalty was almost unheard of.
Lester was 61 years old and had no prior felony charges.

The defendants Buccieri and Lester appealed to the federal Sixth Circuit Court of Appeals.
The defendants argued, If police officers were not guilty and did not conspire with defendants,
how could defendants conspire with the police officers? The prosecution realized that there was
a serious potential of reversible error and hoped that in the appellate judges deliberation there
might be a subconscious undertow toward upholding convictions to assure that everyone
involved would not go free. They hoped the appellate judges, who did not agree with the jurys
not guilty decisions as to the police officers, would unwittingly nullify the pure law to arrive at a
just decision upholding the guilty verdict for Buccieri and Lester.

The subconscious undertow perhaps won out. The appellate court sustained the conviction
by a split decision-two to one. The majority stated that Lester and Buccieri could be found guilty
of conspiring with innocent police officers to commit a crime which was never committed! The
United States Supreme Court declined to review the case.

240

Buccieri was granted an early release on parole but Lester was not granted early release. He
was first held in a minimum security federal prison in Alabama. When Robert Kennedy heard of
this he prevailed upon the justice department to have Lester transferred to a maximum security
federal prison in southern Illinois which primarily held rapists and murderers. While there,
Lester lost over forty pounds. Upon his release he slowly recovered his physical health but until
his death still carried psychological scars.

At the instigation of Robert Kennedy, the Internal Revenue Service with the assistance of the
FBI extensively pursued Lester in an attempt to prove income tax evasion.

They were

unsuccessful.

In spite of all the time, money and energy spent by Robert Kennedys Justice Department to
clean out the organized crime and mobsters in Campbell County, these two misdemeanor
convictions were the only ones obtained. Kennedys frustration was taken out on attorney Lester
and Buccieri. The true mobsters just moved on.

Ronald Goldfarb is a well known and respected Washington, D.C. attorney, speaker, author
and literary agent.
Juanita Hodges a/k/a April Flowers continued her dancing first in Louisville, then in
Alabama, and later in Port Huron, Michigan.
George Ratterman served four years as sheriff. After that he was a color commentator for
radio and television. On occasion he was a financial advisor. He never practiced law. He died
in November of 2007 at the age of eighty of complications from Alzheimers disease.

241

Bruce Lester, the son of Charles Lester, became a respected judge of the Kentucky Appellate
Court for over twenty years and retired recently as Chief Judge.
Two years after the Lester decision, Robert Kennedy was assassinated on June 6, 1968.

Charles E. Lester was my mothers brother, my favorite Uncle Charlie.

5. The Korean War was the forgotten war and most civilians went about their lives oblivious
to the fact that thousands of American young men were giving their lives for our country. It was
not even called a war. It was called a conflict. I had a good friend in college who had
remained in the Army reserve after active service in WW II. He was just completing his senior
year at college when he received notice in May, 1950, to report for active duty in three days. He
was killed six months later in North Korea just south of the Yalu River by soldiers of the
invading Fifteenth Chinese Field Army. He was twenty-four. He was one of the thirty-three
thousand six hundred and eighty-six soldiers who gave their lives to stop the spread of
communism.

6.

In May of my last year at Harvard Law I applied for a direct commission as First Lieutenant

in the newly established contract procurement department of the Air Force located at Wright
Patterson Air Force Base in Ohio. Two other classmates and I were asked to come to the
Pentagon for interviews with the Secretary of the Air Force. We arrived by air the evening
before and I will always remember circling over Washington and seeing the lights of the
beautiful buildings and monuments of Washington.

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The Pentagon and Secretarys chambers were very impressive-especially to a small town boy.
During the interview the Secretary asked us what our class standings were. The first to respond
was a classmate who was the president of the Harvard Law Review (like President Barack
Obama) who stated that he was first in our class. Next my other classmate stated that he was
third in our class. The Secretary turned to me and asked, Mr. Berger, what was your standing?
With some trepidation I answered that I was one thirty-sixth! I felt somewhat embarrassed.
We all were accepted into the program (I was swept in on my classmates coattails). I was
excited and looked forward to three years serving my country during the Korean War in Ohio.
I received a brief note from the Air Force in July that the program had been abandoned
(together with my commission).
Determined to be an officer, I then applied to the United States Coast Guard. I had always
enjoyed boats and the water. They sent me to Cleveland for a physical and four hour written
examination. I was accepted and ordered to appear on December 1, 1953, at the Coast Guard
Academy in New London, Connecticut to be sworn in as an Ensign to begin my training. There
was one condition-I had to be released from my draft board in Cincinnati (Laura Wingerberg,
Clerk). I am glad that I did not waste money on purchasing several Coast Guard uniforms.

7. The requirements to practice law in Indiana have an interesting history. Most lawyers after
the Revolution had a difficult time being allowed to practice law. The people rejected them as
being instruments of and supporters of the English common law, and of not being loyal
supporters of the Revolution. Most had been Tories. All things thought to be English were
rejected. As a result, most states passed laws denying the right to practice law unless loyalty was

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proven. New York State passed a typical law which required a jury to find that an applicant to
practice law had been a good and zealous friend to the American cause before being licensed.
By 1850 the prejudice against lawyers had diminished. However, the Jacksonian theory of
the egalitarian rights of the common man was becoming preeminent and it was thought that
every man had a natural right to practice any lawful calling he chose. As a result of this
philosophy, most states passed statutes or had constitutional provisions that did not require a
license or any other particular requirements or qualifications to practice law except being of good
moral character. One early Indiana statute added an additional requirement-the applicant had to
take an oath that he had not participated in any part of a dual since January 1, 1819. The Indiana
Constitution of 1851 in Article VII, Sec. 21, stated, Every person of good moral character,
being a voter, shall be entitled to admission to practice law in all courts of justice. Therefore,
basically the only requirements to practice law were to be a voter of good moral character,
which, as one whit put it, was the one qualification most practitioners plainly lacked. However,
egalitarianism only went so far in 1851. The same 1851 Constitution denied women and
Negroes the right to vote. Since women could not vote until 1921 and Negroes not until 1881,
were they entitled to practice law before then?
As early as 1893, a courageous white lady named Antoinette Dakin Leach applied to the
Greene Circuit Court for admission to the bar. The circuit court judge found that she was a
citizen of Indiana, over the age of twenty-one, of good moral character, and possessed sufficient
knowledge of the law to qualify her to practice. However, the circuit judge denied admission as
she was not a voter as the Indiana Constitution required. On appeal, the Indiana Supreme Court
determined that the Constitution did indeed secure the right of a voter to be admitted to practice,

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but it did not affirmatively state that others (non voters) could not also have this right.
Therefore, the Court ruled Antoinette should be admitted to the practice of law.
I wonder if the justices in arriving at their decision had received advice from their wives
similar to that given by Abigail Adams to her husband John in 1776 when he was on his way to
the Constitutional Convention to remember the ladies and be more generous and favorable to
them than your ancestors when fashioning laws for the new nation.
Sixty-three years later when I first started to practice law in 1956, there was only one woman
attorney admitted to practice law in northeast Indiana. Now about half of law school students are
women.
Pursuant to this 1851 Constitutional provision, attorneys were usually admitted to the bar by
the local Circuit Court judge. There was no requirement of any law school, other formal
education, law studies or experience. Many obtained their legal training by reading law in the
law office of an established attorney. They were basically self taught. It was not until 1932 that
the Indiana Constitution was amended to repeal the provision that any voter of good moral
character could practice law.
After 1932, Indiana by statute or Supreme Court Rule gradually set forth requirements to
practice law. Ultimately, graduation from an accredited law school and successful completion of
the bar examination would be required. These laws and rules allowed all those persons who
were currently admitted to the bar to continue to practice under grandfather clauses. They
became known as Constitutional lawyers. For a very interesting discussion of these issues and
many more see The History of Indiana Law, 2006, Ohio University Press.

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8. On a dark and wet December 14, 1953, morning at 5 a.m., I boarded a bus in Angola with ten
other draftees, all from local farm families, destination Indianapolis. Upon arrival we, together
with forty other draftees, were told to strip and get in line to be examined by a doctor. The
doctors determined that we were all physically fit even though I kept reminding the doctors that I
had rheumatic fever as a child.
We then were told to stand in a straight line facing an Army Lieutenant and to raise our right
hands. We did so and took our oath to protect and defend. We were told to take one step
forward and by doing so became a part of the United States Army.
I was issued my official identification dog tags which had impressed thereon John R.
Berger US 55448329 Blood: A Religion: C. The US in my serial number differentiated me
from those who had voluntarily enlisted. The enlistees were RA and considered to be a
different breed.
It is hard to describe my emotions upon taking the oath and being a member of the Army. I
do remember being very proud to serve my country and to begin such service as a private equally
with my fellow draftees from all walks of life. I was always very proud to wear my Army
uniform even though during the Korean Conflict some civilians looked down upon me as a
serviceman.

9. On my arrival at Fort Leonard Wood at 1 a.m. dressed in a gray tweed suit and striped tie, I
was told to report immediately to the mess hall for KP duty. My first military duties consisted of
mopping the floors and washing dishes, pots and pans until 3 p.m. I then reported to my
assigned barracks and was issued bedding, a trunk to be placed at the foot of my bunk, an M1
rifle, and basic toiletries which included a blade razor (I had only used an electric shaver before).

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My only experience with a rifle was as an eight year old. I had a Red Ryder BB gun and shot
a starling. The bird tumbled to the ground and flopped around. Apparently I had broken his
wing. Immediately I felt terrible and tried to nurse him back to good health. With my gentle
care he lasted three days. I buried him with a headstone marked Sam. This was the last and
only time that I shot a rifle without cause.
Exhausted and dirty, in my gray tweed suit, my service to my country began. I was issued a
uniform three days later.
In the fourth week of basic training I was called in from the machine gun range for an
interview pursuant to my previous application to the Army Judge Advocates Office (the law
branch of the Army). In my dirty uniform and with four hours sleep I was grilled on the
intricacies of law by a panel of one Captain and two First Lieutenants. I distinctly remember one
question. I was asked to explain in detail the hearsay rule and as many of the exceptions
thereto as I could recall (there are thirty). This is probably one of the most difficult legal
principals.

The hearsay rule is an evidentiary trial rule on the admissibility of certain

testimony. The rule can be simply stated as, A witness can not testify as to what he heard
another person say in order to prove the truth of the facts stated by such person. Somehow I
stumbled through the interview.
I did not hear anything concerning my application until about twenty-two months later when I
was called in before my commanding officer.

He explained to me that I had passed the

examination and had been recommended for acceptance into the Judge Advocates Office.
However, the examining board had been improperly constituted. The board should have had two
Captains instead of the one at the board examination. Therefore I would have to be examined
again. He assured me that I would undoubtedly pass the next examination and be appointed a

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First Lieutenant. I would have to serve three more years of active duty in the Army. Since I was
due to be discharged in two months, I respectfully withdrew my application.

10. I remember clearly my first civil and criminal cases. Both were before the Steuben Circuit
Court judge, the Honorable Harris Hubbard. Both cases made clear to me the difficulties I would
have trying to establish a law practice in the Steuben County legal environment.
In my first civil case I represented a foreign (Chicago) supplier of minnows who had sold the
minnows to a local (a Steuben County voter) bait store. The bait store refused to pay for the
minnows claiming that the minnows had died of some mysterious disease about one week after
delivery. I obtained an expert in minnow diseases who testified that the minnows were not
diseased when delivered but were contaminated by the condition of the bait store minnow tanks.
There was no other evidence as to the cause of the disease. At the conclusion of the evidence,
Judge Hubbard announced his decision (the case was heard by the court rather than by a jury).
He stated that the evidence clearly showed that the minnows were in perfect condition when they
were delivered. I was in seventh heaven. I was about to win my first case and could represent to
prospective clients that I had never lost a case. The judge then said, However. I knew that
these words were the death knell. The judge then stated that since the delivery of the minnows
had been on a Sunday, the sales contract was void and the bait store therefore did not have to pay
for the minnows. The judges decision was erroneous, of course, as Indiana law has never
declared Sunday contracts void. To appeal the decision to the Indiana Appellate Court would
have cost about twenty times the value of the minnows! Case closed. The attorney for the bait
store, the judges brother Kenny Hubbard, had won another one.

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In my first criminal case, I was appointed as pauper counsel for the defendant by Judge
Hubbard. There were about eight other eligible attorneys but Judge Hubbard obviously thought
that this case was just right for me as a young attorney trying to establish a law practice. As a
new attorney I could hardly refuse such an appointment. The defendant, a recent resident of Mt.
Clemens Michigan, who was just passing through Angola, was accused of kidnapping the
daughter of a prominent Angola businessman on her way home from grade school. Thankfully,
she was found alive a day later about fifty miles away. She identified the defendant as the person
who had kidnapped her. By representing such a person this certainly was an excellent chance for
me to become well thought of and accepted by the Angola community.
Having taken my oath as an attorney to faithfully represent a client, and being young and
nave, I earnestly began my representation. I immediately requested a change of judge which by
law had to be granted. This further endeared me to Judge Hubbard.
My client stated that he had an iron clad alibi. He told me that at the time of the abduction he
was living in Mt. Clemens and had in fact at that time been at the St. Francis Cemetery in Mt.
Clemens placing flowers on the grave of his mother. He remembered that when visiting his
mothers grave that twin two day old boys were being interred.
I took off for Mt. Clemens, about 100 miles to the northeast and just north of Detroit, in my
parents 1952 Buick Road Master station wagon. The trip was uneventful except for the fact that
since the Buick weighed about a ton and the brakes were woefully underpowered, it was very
difficult to bring the car to a stop. Somehow I made it.
My first stop was at the address the defendant gave me for the place where he stayed. The
defendant was sure some other resident would remember him being there on the day of the

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abduction. It was difficult to find the address. It was in what appeared to be a slum area. I was
somewhat hesitant to enter the building at the address.
My sociology professor at Hillsdale College had written a book (required purchase) about his
experiences at the Bowery in Brooklyn which he entitled Flophouse. I was now truly entering a
flophouse. The building was three stories. There was a small office on the first floor. The rest
of the building contained single rooms. There was filth and refuse everywhere. I found only
three persons.

One was sitting in a stairwell and obviously drunk.

He was unable to

communicate with me. I saw another person on the third floor through an open door lying naked
on a stained mattress, apparently asleep or passed out. I did not disturb him. The third was the
manager who was preparing some soup in a makeshift kitchen. He had no recollection of the
defendant. He did give me the direction to St. Francis Cemetery.
I was able to find the cemetery and the Rectory of the adjoining church. I located the Sextant
and he was able to examine the Record of Burials. He said that he remembered the twin boys
burials. He examined the records and they showed that the burials had been one day before the
abduction in Angola. That was the end of the alibi!
Upon return to Angola I met with the prosecuting attorney to see if a plea bargain could be
agreed upon. Both of us wanted to avoid a trial in which the little girl would have to testify. I
told the defendant that I was trying to negotiate a plea bargain. The next day the defendant sent a
demand from the jail to the judge written on a paper hand towel that the judge remove me from
representing him. The defendant stated that, I had spilled my guts to the prosecutor. The
judge, to my great relief, replaced me as the attorney for the defendant.
subsequently did enter a plea of guilty pursuant to a plea agreement.

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The defendant

11. There is a sad sidebar to my defeat of Judge Sisler which connected causally to three
murders. If Judge Sisler had been elected, none of the following would have happened.
After his loss of the judgeship, with the assistance of his father in law, Judge Sisler obtained a
job in Washington, D.C., as a lobbyist for the National Rifle Association. About a year after
arriving in Washington, he was confronted at his front door one evening by an armed angry
black man who stated that his sister had been raped by a middle aged white man and that the man
reportedly lived in Sislers house. An argument ensued and Judge Sisler was fatally shot.
A police investigation followed, the man was arrested and subsequently found guilty of
Voluntary Manslaughter.
The chief investigating officer was Bobby Moore. Later Bobby Moore and Barbara Sisler,
Judge Sislers widow, were married and took up residence in the Town of Fremont in the
northeast corner of Steuben County. Bobby became the Town Marshall.
About a year later, while Barbara Sisler Moore was on the phone talking with her daughter,
Barbara stated that she had to leave the phone for a minute because her husband Bobby needed
to talk to her. Her daughter overheard an apparent argument between Barbara and Bobby and
then gunshots.
When the police arrived at the Moore home they found Barbara dead. Bobby stated to police
that there had been an argument, that Barbara had threatened to kill him with a gun, and that he
fired at her in self defense. Bobby Moore was never charged with the death of his wife.
About a month after the death of Barbara Moore, on a warm July 1988 evening just before
sun down, Bobby Moore was shot in the head by a high powered rifle discharged from some
distance away. He died minutes later. Barbaras son, Sam Sisler, reportedly was an initial

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suspect but no evidence was ever found to connect him to the murder. No charges were ever
filed.

12. The matters presented to a Circuit Court judge are varied and challenging.
The matters presenting the most difficult choices to me were child custody in divorce cases,
disposition of juvenile matters, and sentencing in criminal cases. All divorce and juvenile
matters are presented to a judge for decision. A jury is not allowed.
In Indiana a person can obtain a divorce if there are irreconcilable differences. This is quite
different from the traditional divorce requirements of proof of adultery or incurable insanity.
These strict rules gave rise to the hiring of private investigators who would attempt to take a
photograph of the erring partner in flagrante delicto. Also, what is incurable insanity and
how do you prove it? Therefore now in Indiana, a person can always obtain a divorce by
testifying, My wife and I disagree on almost everything and there is no chance that we can get
back together again. Unlike most other states, Indiana does not provide for alimony (support
payments) to a husband or wife unless he or she is severely mentally or physically disabled. This
does not provide much protection to the wife who drops out of school, gets a job to help her
husband through medical school, has three children while her husband is building his practice,
and is then divorced by her husband for irreconcilable differences. She is left to rear the
children while her husband marries his nurse and lives happily ever after. She will have to
support herself with only a high school education!
The Indiana divorce statute was amended when I was judge. The Indiana legislature in their
infinite wisdom thought that it was deleterious to use the term divorce and amended the law to
provide that thereafter the term would be dissolution of marriage.

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Therefore after the

amendment it was improper for a wife to say to her husband, If you hit me one more time Im
gunna stick your ass in jail, take the kids and divorce you. The proper comment would be,
Honey, if you cannot conform your actions to accepted standards, I might have to seek
incarceration for you and file a Petition for Dissolution of Marriage.
Presiding over divorce cases was an eye opener for me. I guess I had led a sheltered life. I
had parents that loved each other who never raised their voices in anger and a wife who was all
things wondrous. It was difficult for me to listen to testimony from people who had been in love
and had promised to love and honor until death do us part tear each other apart in the hope of
obtaining a larger property settlement.

Usually custody was an afterthought.

The mother

traditionally obtained custody of young children.


Occasionally both the husband and wife would seek a divorce. Each party wanted bragging
rights. The Judge gave me the divorce because of the way my husband (wife) treated me.

In one divorce case which stands out in my memory, a childless couple in their 60s both
wanted a divorce but they could not agree on who would get the Cadillac and some wedding
presents they had received five years before. The husband was represented by Dudley Gleason,
Jr. of the firm of Gleason & Gleason (father and son), a sixty two year old constitutional lawyer
who seemed to always quote the bible when making any statement to a judge or jury. He was
about five feet tall, robust and had a deep resonant voice. It was almost like hearing God speak.
The only issue at the trial was the division of their property. I was therefore somewhat surprised
when Dudley offered into evidence on behalf of the husband, without objection of opposing
counsel, seven photographs of the wife in a Holiday Inn motel room in Florida which were taken
on a recent vacation.

The photographs were taken by the husband and showed his wife

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completely nude in various poses. I asked Dudley the relevancy of the photographs and he
stated, Your Honor, any woman who would allow herself to be photographed naked is immoral,
is condemned before the eyes of God, and should not be allowed to share in my clients worldly
goods. I was preoccupied with the pictures which showed a rather plump old woman with large
sagging breasts. I could not imagine anyone that old cavorting sexually around a hotel room.
Remember, I was in my early 40s. I have since changed my mind.
A divorce case was never really over until the youngest child reached eighteen. The parties
seemed to always be coming back to court to revise the amount of child support (My husband
got a new job and he is making more now or He is spending a ton of money on that fat girl
friend of his and her children); to change visitation (I do not want my daughter around that
whore he is living with); custody (I just cant handle Joshua anymore. He is out of control and
smokes pot. Its his fathers turn); and to request that the husband be put in jail for non support
or failure to abide by a visitation order (He makes a ton of money but spends it all on booze,
punch cards and girlfriends and has not paid support for four months or I have the kids ready
for visitation every other Sunday at 2 p.m. but he rarely shows up to pick them up and even if he
does, he returns them dirty and late every time).
Miracles do happen though. Often I had a father testify in a non support case that he really
wanted to catch up on his back support (usually several thousand dollars) and help his six
children, but even though he had a good job, he had no money available. About the second day
of serving an indeterminate jail sentence for contempt of court, the husband would somehow
come up with the money and pay the entire back support-a miracle!

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Juvenile court was a heartbreaker. Anyone up to eighteen was considered a juvenile in


Indiana and there was a distinct body of law for them which was different from adult criminal
law. The emphasis in juvenile law was help rather than punishment. A juvenile could not be
originally charged with a criminal law violation. A juvenile was charged with An act of
delinquency, to wit: taking cash at gun point from the cash register at the Martin Gas Station.
The judge was to act as parens patriae or an enlightened father, understanding, fair, but firm.
The judge was to exercise the conscience of the community. When I first started to practice law,
a juvenile offender when caught was held in jail for a day or so and then brought before the
judge. The prosecutor presented the facts and, after the juvenile made any statement he desired,
the judge would immediately decide if the juvenile had committed the offense and if so, what
should be done about it. Usually there were no witnesses other than a police officer. The
juvenile was not represented by an attorney. His parents were allowed to be present and make a
statement. When I became judge, the law had changed. The juvenile was always represented by
an attorney (at county expense usually), the hearing was conducted like an adult criminal trial,
and a final decision could not be made by the judge until the juvenile had been evaluated by the
probation department or other experts deemed necessary.
Most juvenile offenders were male. I had a few delinquent girls but their offenses were minor
such as shoplifting or skipping school. If the offense was serious, such as armed robbery, the
minor could be waived by the judge to adult criminal court and the prosecutor was instructed
by the judge to file adult criminal charges against the juvenile. All proceedings thereafter
including sentencing to prison were treated as if the juvenile were an adult.
In juvenile matters I tried very hard to understand the cause of the delinquency and structure a
proper response to help the juvenile. In some cases this might even entail a stay at the county

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jail. Many times the probation officer and I failed to help the juvenile. Sad to say, even at
fourteen or fifteen, it was often too late.
In one juvenile case, I visited with the juvenile quietly in my chambers in an attempt to find
the cause of his acts. He had broken into four cottages around Crooked Lake and stolen some
electronics. He was seventeen, the son of a local professional and had supportive parents. I
asked him why he had broken into the cottages and his sole explanation was, Because it was
easy. Go figure. I gave up delving into juvenile psychiatry.
In another juvenile case, I thought that I may have been successful in rehabilitation. Charlie
was seventeen and had been involved in several burglaries about six months before. He had
been reporting to the probation officer on a regular basis and on one of these visits to the
probation officer, I talked with Charlie. I asked how he was doing and if there was anything I or
the probation officer could do to help him. He stated that he was doing real well, had gone back
to school and had a part time job. He wanted to thank us for helping him. I remember that
evening, while relaxing with a glass of wine (white zinfandel), telling my wife Susanna about
Charlie and how pleased we were about his apparent success. In the early morning hours of the
next day, Charlie was arrested in Michigan after blowing the door of a safe at a Sears. Under
Michigan law he was an adult at seventeen and he was later found guilty and sentenced to eight
years in prison.

Most of my civil suits involved automobile accidents. If the plaintiff could prove that the
defendant was negligent (that the defendant drove the vehicle below the standard of care that a
reasonable man would have exercised which was the proximate cause of damages to plaintiffs
vehicle or person), and that plaintiff was not negligent, the plaintiff was entitled to damages.

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Determining personal injury damages was difficult if pain and suffering were involved. Doctor
and hospital bills and lost wages were usually easy to prove. But how much should a judge or
jury award for the loss of an eye, both legs, brain damage, paralysis or pain? I have heard
plaintiffs attorneys state to the jury to aid them in determining damages for pain, How much
money would you take per day constantly to have severe headaches every day (or not be able to
walk) for the rest of your life? Just multiply that amount by the life expectancy of the plaintiff.

I also presided over several civil cases against medical doctors for malpractice (medical
negligence). Indiana had an interesting negligence evidentiary law which was only applicable to
medical negligence. In order to prove medical negligence, the plaintiff must produce at least one
licensed medical doctor as a witness who testifies that he or she is familiar with the accepted
standard of medical care in the community and that the actions of the defendant doctor fell below
this standard. Two cases were brought by the same attorney against the same doctor.

The first malpractice case involved a claim by a married couple for damages for the birth of
their ninth child.

The first eight children joined as plaintiffs.

The defendant doctor had

performed a sterilization tubal ligation upon the wife after her eighth child was born. This
procedure, as were all previous deliveries, was paid for by the County Welfare Department.
About ten months later, the wife gave birth to a normal boy. The wife claimed damages for her
pain and suffering in childbirth and for support for the ninth child until he was eighteen. The
husband claimed damages for his loss of consortium (sex) with his wife during the pregnancy
and for support for the ninth child until he was eighteen. The other eight children claimed
damages in that there would be less money for their care and less love and affection for them

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since they would now have to share with a ninth child. The plaintiffs wanted the defendant
doctor to support the ninth child until he was eighteen!
The defendant denied all claims. He also claimed that there was no such negligence law in
Indiana, and that the plaintiff wife should have had an abortion or placed the child for adoption if
the child was not wanted. It was their duty to mitigate (lessen) damages. The plaintiffs stated
that they wanted and loved the child.
This type of action has become to be known as a wrongful birth action as contrasted with
the traditional wrongful death negligence action. Whether this type of negligence action
should be allowed as common law in Indiana had not been presented to any Indiana court. It was
a case of first impression and I was being asked to establish a wrongful birth negligence action
as part of the common law of Indiana. After extensive research I determined that only two states
had ruled on this. Michigan had allowed such an action and Delaware had not. The Delaware
Supreme Court thought that the benefits of having a healthy child far exceeded any damages and
therefore, as a matter of law, since plaintiffs had no damages there could not be any recovery.
The Michigan Supreme Court thought that a jury should be given the opportunity to decide if in
fact the plaintiffs were damaged. In the Michigan case the defendant was a pharmacist who had
mistakenly given the plaintiff wife sleeping pills instead of the prescribed birth control pills.
I followed the Michigan rule and allowed the matter to proceed to trial. The plaintiffs had the
required licensed doctor witness who testified not in person but by deposition. The doctor
practiced general medicine in Wyoming but stated that he was well acquainted with the medical
standards of Steuben County, Indiana, as to a proper tubal ligation since he was originally from
Steuben County. He stated that in his opinion the defendant must have failed to properly
perform the operation as a child was conceived. His deposition was read to the jury by the

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plaintiffs attorney who had a deep voice and looked like a doctor. The jury did not know that in
fact the doctor had a high voice and was not impressive at all.
The defendant had two imminently qualified tubal ligation specialists as witnesses. They had
performed hundreds of such operations and testified that the procedure followed by the
defendant was according to accepted medical practice. They further testified that even with a
proper tubal ligation operation, sometimes nature would reconnect the cut tube and pregnancy
could occur. The jury found that the defendant was not negligent. There was therefore no need
for the jury to determine if there were any damages to plaintiffs.

The second malpractice case involved a couple in their late 50s.

The plaintiffs were

represented by the same attorney and the suit was against the same medical doctor. The doctor
was alleged to have botched a vasectomy. The plaintiff husband claimed that after the operation
he had developed two nodules on his penis and as a result he had experienced extreme pain when
engaging in intercourse. This condition lasted for about three months and until the same doctor
performed a minor procedure and removed the nodules. The husband could not claim damages
for the expense of the operations as the County Welfare Department had paid for these. He did
however claim damages for pain and suffering during intercourse for the three months. The wife
joined as a plaintiff and claimed damages for diminished pleasure during intercourse because of
the discomforting effect of the nodules. She further claimed that during intercourse her husband
perspired a lot and would keep crying out, which indicated to her that her husband was in
extreme pain. This considerably lessened her pleasure to her great damage. The plaintiff
husband claimed ten thousand dollars as damages and the plaintiff wife claimed five thousand
dollars as damages. The plaintiffs attorney on direct examination of the wife in order to attempt

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to prove the extent of damages elicited the fact that they had intercourse at least once a day.
Upon cross examination the doctors attorney asked the wife, Surely you did not have relations
every day for ninety days? She replied modestly, Oh yes, we were so in love. The jurors
during all of the testimony about fell out of their chairs leaning forward to not miss a word of the
testimony. I had a hard time keeping a judicial demeanor and thought to myself fantastic. The
jury returned a verdict awarding damages of ten thousand dollars to the husband and five
thousand dollars to the wife. If my calculations are correct, and assuming the number of
assignations alleged are correct, this would amount to about $166.67 per pop (less 33% attorney
fees).
My thoughts of fantastic during the testimony of the wife came from one of my favorite
jokes. It seems that two married ladies were discussing their past summer vacations. The first
lady stated that her handsome, wonderful and generous husband had first taken her to Paris and
bought her all of the latest French perfumes. The other lady replied fantastic. The first lady
then stated that her husband had then taken her to Moscow and bought her a gorgeous full length
Russian sable coat. The other lady again replied fantastic. The first lady then stated that her
husband had then taken her to Rome and bought her many beautiful Italian leather shoes and
handbags. The other lady again replied fantastic. The first lady then inquired of the second
lady And what did you do this summer? The second lady answered that her husband had paid
tuition for her to take a two week charm school course for ladies. And what did you learn? the
first lady inquired. The second lady responded I learned to say fantastic instead of bullshit.

I presided over many criminal cases. One thing I surmised was that there must have been a
special class at the police academy which would assist an officer in testifying concerning why he

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or she had searched a vehicle or arrested a driver for driving under the influence. When the
prosecutor would ask a police witness at trial why the vehicle was searched or the defendant
arrested, the reply was always, I observed what appeared to be a green leafy plant like material
(marihuana) protruding from under the front seat. or I observed what appeared to be the butt of
a gun protruding from under the front seat. or The driver had blurry eyes, slurred speech, and
there was a strong odor of alcohol. The exact words were used in every trial!
During my tenure as judge there were not many drug charges filed. They were mostly
possession of a small amount of marihuana. Meth was unknown then. Not as now where almost
every other old farm house (and quite a few automobiles) in northeast Indiana have active and
profitable meth labs. It seems that about every week a farm house or car is blowing or burning
up due to faulty recipes.

Two drug cases involved more serious offenses. Both incidentally involved dogs. The first
case was commenced by a request by the prosecutor that I issue a search warrant. The Fourth
Amendment provides that no search warrant shall be issued unless there is presented to a judge
an affidavit of probable cause to believe that the search will lead to the discovery of certain
described evidence. The affidavit must be made by a person who is reputable who has direct
knowledge of the facts. In this case the reputable person was a dog!
The dog had been on regular patrol for the Postal Department at the San Diego, California,
port and when sniffing a certain large package being mailed from Thailand to a person with an
address of Jimmerson Lake, Angola, Indiana, indicated that the package had hashish (a high
grade marihuana) inside. Usually a package would have had an outer layer of coffee beans to
disguise the distinct odor. The Thai dealer must have gone cheap because there were no coffee

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beans. Even though the dog could not on his or her oath state the fact that the package contained
a proscribed drug, I accepted the affidavit of the postal inspector that he believed the dog was
reputable and had the necessary expertise as the dog had shown satisfactory performance in a
narcotics detection training program and in other detections. (See Florida v. Harris 568 U.S.
___, 2013, for approval of issuance of search warrant based upon such an affidavit). I issued the
search warrant and upon delivery of the package to the Angola house by the rural mail carrier
about ten staked out Deputy Sheriffs, after knocking on the front door and waiting for about ten
seconds for a response, broke through the door. The officers were almost late. Most of the
hashish was disappearing down the toilet. The propriety of the convictions and the issuance of
the search warrant were later upheld on appeal by the Indiana Appellate Court.
The second drug case involved a state police undercover officer who had infiltrated a
weapons and drug selling group in Fort Wayne, Indiana. The officer had arranged to purchase a
large quantity of cocaine from the group. The exchange of drugs and money was to take place in
the Angola Holiday Inn parking lot which was just three miles south of the Michigan state line.
The officer waited in his old car in the parking lot at the appointed time. He was wired. Two
state police were in a van nearby with radio receivers. Two Steuben County deputy sheriffs were
cruising nearby in an unmarked car. Soon a car approached the lot (a raven black 1970 Boss 302
Mustang), circled slowly by all of the parked vehicles, and departed. The officer recognized the
driver as one of the group from Fort Wayne. In the front seat was a large Doberman, a status
symbol among drug dealers. Then a second drug dealer drove into the lot and pulled up beside
the undercover officer. The drug dealer told the officer to get into the dealers car and they
drove away. This was obviously an unanticipated change of plans which was complicated by the

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fact that the wire was not working. The police were frantic. They did not know where the dealer
was taking the officer and thought that his cover may have been blown.
The drug dealer drove north into Michigan and then turned west and south on a gravel road
into Indiana. The car stopped and the drug dealer jumped out and uncovered a large package
buried in a snow bank. The package was opened by the officer and the cocaine tested while the
dealer drove north just over the state line into Michigan. It tested pure cocaine and the officer
paid the dealer. All of the time the officer and the dealer were talking the officer assumed that
all of the conversations were being overheard by the other police officers. He thought that they
were near and would come to his assistance shortly. The officer pulled his hand gun and ordered
the dealer to stop the car and get out.
Just then the backup Mustang being driven north out of Indiana appeared and drove toward
the officer. The car contained a snarling Doberman and the other dealer, probably armed. The
officer with drawn pistol stood in the middle of the road to block the Mustang. The officer did
not know what he should do next. He was expecting his own backup. Luckily, the sheriffs, who
had been frantically cruising all of the back gravel roads in the area, came upon the scene and
helped subdue both of the dealers. The Doberman was thankfully spared and tied to a tree. A
search of both vehicles disclosed more coke and several semi-automatic weapons. Both dealers
were charged in Indiana and Michigan with possession of unregistered firearms, possession and
sale of cocaine. The defendants claimed the defense of entrapment-that the idea of committing
the crimes originated with the police when the defendants had no previous intention or
disposition to break the law. The defendants also claimed that the Indiana officers had no right
to arrest them in Michigan and that the officers had no probable cause to arrest. The defendant
who was in the first car filed a motion, based upon entrapment, to dismiss the case and to

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exclude all evidence of the drugs and guns as improperly obtained in Michigan. I denied the
motion.

The backup defendant, who was represented by the same defense attorney, then

procured a change of venue to another judge and filed the same motion before the new judge.
The new judge, who was the Circuit Court judge of an adjoining county, granted the motion and
dismissed the case against the backup defendant. In the trial of the first defendant before me the
jury deliberated only one hour. The jury convicted the defendant of all three crimes and I
sentenced him to ten years in prison. Prior to the trial, the defendant was offered a plea bargain
by the prosecutor which would have called for a total sentence of two years. The defendant
refused such offer. His well paid attorney had assured him that he would get him off scot free!
The conviction was upheld on appeal to the Indiana Appellate Court.

My only personal brush with the criminal law illustrates the fact that sometimes the
complexities of constitutional protections do not filter down to the lower levels of police
enforcement. After retiring from the bench I stopped briefly at my old law office one day. I
parked right in front of the office. I looked out the front window and observed a lady Angola
City Police officer placing a large yellow chalk mark on my right rear tire, writing something on
a tablet and walking away. The object of the marking was to keep tabs on parked cars to see if
they violated a city ordinance against parking over two hours. I promptly went to my car and
started to rub the yellow mark off. The officer came running back to my car and told me that I
could not do that. I said that I had just parked my car, was about to leave and as she knew I was
not violating any parking ordinance. She said that she would have to give me a parking ticket
because I had rubbed some chalk off and I was not supposed to do this. She gave me a parking
ticket.

After receiving the ticket I went to talk to the Angola Chief of Police. I asked him if

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there was any ordinance or other law which forbad rubbing off yellow chalk marks on tires. He
said that there was no such ordinance or law but they had been having problems with people
doing that and he had instructed his officers to ticket any such action. Somewhat dismayed, I
asked him if I had heard him correctly. Did he really instruct his officers to issue misdemeanor
traffic citations to persons who had not violated any law? He said yes. He did so because
something had to be done to stop the illegal excess parking. I asked what would be done if I did
not pay the $2.00 fine for violating a law that did not exist. He said with a straight face that if I
did not pay the fine within 24 hours he would follow procedure and instruct the City Attorney to
file charges against me in Circuit Court for the $2.00 plus $25.00 per day late penalty. I paid the
$2.00.

In 1971 I faced a decision which would test my basic beliefs as to the right of privacy and the
treatment of persons with mental disabilities.
The Steuben County Welfare Department filed a petition to have an eighteen year old woman
under their care involuntarily sterilized. The petition alleged that she was feebleminded, was
about to be married to a man who was also feebleminded whom she had met at a mental
institution, and that if not sterilized she would most likely have several children of like mental
condition. The petition was pursuant to Indiana law and asked that a hearing date be set for the
presentation of evidence and that notice be given to the eighteen year old woman.
This procedure and authority for a judge to order sterilization was set forth in an Indiana 1927
statute. The Indiana statute was based upon a Virginia statute which had been upheld by the
United States Supreme Court in Buck v. Bell (1927).

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The statute gave a judge after a proper

hearing the right to order sterilization of an institutionalized male or female if the judge
determined that the respondent was feebleminded or morally delinquent.

Buck v. Bell involved Carrie Buck, an eighteen year old girl, who was declared to be a
genetic threat to society by a Virginia state court judge. According to the judges decision,
Carrie was the daughter of a socially inadequate mother and the mother herself of a similarly
afflicted daughter. Justice Oliver Wendell Holmes, Jr. of the United States Supreme Court
wrote the opinion of the court. The opinion stated, It is better for all of the world, if instead of
waiting to execute degenerate offspring for crime, or to let them starve for their imbecility,
society can prevent those who are manifestly unfit from continuing their kind. The principle that
sustains compulsory vaccination is broad enough to cover cutting Fallopian tubes.Three
generations of imbeciles are enough! The Supreme Court never reversed this decision. Thirtythree states including Indiana passed laws similar to the Virginia law authorizing involuntary
sterilization. These state laws were all repealed by the mid 1970s and Indiana repealed its law in
1974. Two thousand three hundred men and women were involuntarily sterilized in Indiana and
over sixty-five thousand nationwide.
When the petition was filed with me, I did not set a hearing date. I asked the Welfare
Department to withdraw the petition and stated to the director of the Welfare Department that
even though the Indiana law authorized such a procedure, I would never issue an involuntary
sterilization order. The Welfare Department deferred to my decision.
There is a footnote to this issue. In Stump v. Sparkman (1978), the United States Supreme
Court upheld a 1971 decision by the judge of the DeKalb Circuit Court (the Circuit Court judge
of the county adjoining Steuben County) which authorized the sterilization of a fifteen year old
girl. The court held that the judge was immune from any liability for his decision ordering the

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sterilization since it was a judicial decision. The facts of the case are startling. The girls
mother petitioned the judge to issue an order to have her daughter sterilized. The petition
alleged:

"Ora Spitler McFarlin, being duly sworn upon her oath states that she is the natural mother of
and has custody of her daughter, Linda Spitler, age fifteen (15) being born January 24, 1956 and
said daughter resides with her at 108 Iwo Street, Auburn, DeKalb County, Indiana.

"Affiant states that her daughter's mentality is such that she is considered to be somewhat
retarded although she is attending or has attended the public schools in DeKalb Central School
System and has been passed along with other children in her age level even though she does not
have what is considered normal mental capabilities and intelligence. Further, that said affiant has
had problems in the home of said child as a result of said daughter leaving the home on several
occasions to associate with older youth or young men and as a matter of fact having stayed
overnight with said youth or men and about which incidents said affiant did not become aware of
until after such incidents occurred. As a result of this behavior and the mental capabilities of said
daughter, affiant believes that it is to the best interest of said child that a Tubal Ligation be
performed on said minor daughter to prevent unfortunate circumstances to occur and since it is
impossible for the affiant as mother of said minor child to maintain and control a continuous
observation of the activities of said daughter each and every day.

The petition and subsequent order were never officially filed with the court. There was no
hearing and no evidence was submitted to the judge. The girl was not notified that the petition
had been filed and the judge did not appoint any attorney or guardian-ad-litem to represent the
girl. The petition was granted the same day that it was submitted to the judge. The girl was told

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by her mother that she was going to have her appendix removed. Two years later the daughter
was married and upon failure to become pregnant she learned for the first time that she had been
sterilized. She and her husband sued the judge, the doctors and the hospital for damages. Based
upon the Supreme Court decision, recovery was denied.
The implications of this decision are frightening. The immense power given Indiana circuit
and superior court judges makes it imperative that only qualified judges, both in legal training
and moral character, be elected. Great power should always be exercised with great restraint.

13. The case of Miranda v. Arizona (1966) is an example of the practical workings of the due
process clause. We all have watched crime dramas where the police are always giving a
suspected criminal his Miranda rights. In the Miranda case the police after a vigorous and
prolonged interrogation of the accused obtained a confession. Miranda claimed that the police
should have told him of his constitutional rights to be silent (Fifth Amendment) and to have an
attorney present at the interrogation (Sixth Amendment). The state claimed that even though the
Fifth and Sixth Amendments applied to a state criminal charge by virtue of the Fourteenth
Amendment due process clause, Arizona law and the Constitution did not require such advice
prior to interrogation. Miranda claimed that to be advised of such rights was required to provide
a fundamentally fair procedure required under procedural due process. Anyone who watches
television knows how the Supreme Court ruled. That is why Roberts was read his rights prior to
his interrogation. Note: Miranda was subsequently tried again without the confession being
admitted and was again found guilty and sentenced to 20-30 years in prison. He was stabbed to
death in a bar fight in 1976.

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Two other Supreme Court decisions are also good examples of federally protected first eight
amendment rights being incorporated in the Fourteenth Amendment due process clause and
thereby binding upon the states.
In Mapp v. Ohio (1961) Dollree Mapp was convicted of possession of obscene materials
seized by the police after breaking down the door of her home. The police were searching for a
suspected bombing fugitive. They did not find any fugitive but did find in a drawer in a dresser
in her basement some obscene magazines. They did not have a search warrant. A warrant was
not required by Ohio law, by federal law or federal court decisions. The Ohio Supreme Court
upheld the conviction. The United States Supreme Court decided that this was an unreasonable
search and seizure without a warrant, that the seized materials should therefore be excluded from
evidence, that the right to not be subjected to such a search was a fundamental right as required
by the Fourth Amendment and was incorporated in the Fourteenth Amendment. The charges
were therefore dismissed. Dollree was arrested, tried and convicted nine years later after police
(with a search warrant) found drugs in her apartment.
In Gideon v. Wainwright (1963) Gideon was charged with burglary in a Florida court and he
requested the court to appoint an attorney for him as he was indigent. The judge refused.
Florida law did not require that an attorney be appointed for an indigent criminal defendant.
Federal law and federal court decisions also did not require the appointment of an attorney. He
was tried, convicted and sentenced to five years in jail. Gideon sent a hand written letter directly
to the United States Supreme Court asking that they intervene. The Supreme Court allowed the
letter to be filed as an appeal and appointed Abe Fortas, himself soon to be named a Justice of
the Court, to represent Gideon. The Supreme Court decided that Gideon had a right to have an
attorney appointed for him, that such a right was a fundamental right, and that this Sixth

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Amendment fundamental right was incorporated in the Fourteenth Amendment. The conviction
was vacated and the Florida court was ordered to provide Gideon with an attorney upon any
retrial. At his subsequent trial, represented by an attorney, Gideon was acquitted.
Before Mapp (1961), Gideon (1963) and Miranda (1966), in some states, a person charged
with murder could have been convicted based upon evidence seized from his home without a
search warrant, was not entitled to a court appointed attorney to help defend him if he could not
afford an attorney, and any confession obtained after a long and vigorous interrogation could be
used against him without being advised of his right to remain silent. Such actions did not violate
the Constitution of the United States.
Indiana courts interpreted the Indiana Constitution as early as 1854 as requiring that an
indigent criminal defendant be furnished an attorney at public expense for all felonies, and as
early as 1923 as requiring that evidence obtained pursuant to an invalid search warrant or no
search warrant be excluded.

FURTHER AFFIANT SAYETH NAUGHT

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THE BUBBLES
RISE

An Autobiography
by
John R. Berger
271

THE BOOK: This is the nostalgic and humorous autobiography of the author, John R. Berger.
It traces his remembrance of his eighty-five years beginning with his early childhood years in
Cincinnati in the thirties, his family, high school, college, law school, military service during the
Korean War, marriage, law practice, and being a judge and college professor.
Join him on his journey through life as he seeks its meaning.

THE AUTHOR: The author is a graduate of Hillsdale College and Harvard Law School. He is
a retired judge of the Steuben Circuit Court and Professor Emeritus of Law at Tri-State
University. He is the author of The Johnson County Murders, the tale of a triple murder trial
over which he presided as a young judge. He lives on a lake in northeast Indiana and is currently
doing legal research and writing to assist in continuing legal education.

Copyright 2015 by John R. Berger. jrb11129@yahoo.com


All rights reserved. This book or parts thereof may not be reproduced in any form without
permission of the author.
Published 2015 by Lake James Press
20 Lane 200H Lake James
Angola IN 46703

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To Susan Elizabeth and John Christopher,


remember me.

273

THE BERGER FAMILY

Mary Elizabeth Metz--------John Berger (1837-1894)


!
!
John (1866-1881)---Anna---Amanda---Otilla---Teresa---Agatha---Joseph--and George Berger (1871-1954) Married Rose Petronella Trefzger (1875-1956)
!
!
!
Marcia (1901-1985)---George Berger, Jr. (1903-1906)---Alfred (1904-1994)--Adele (1911-2007)---Carl
(1912-1998)---Richard (1913-1992)--and John Norbert Berger (1898-1985) Married Margaret Grace Lester (19001984)
!
!

William Lemley (1898-1953) Married

Florace McCool (1900-1970)


!
!

!
!

Margaret (Peggy) Berger (1925-1994)---George Berger(1923-1990) and


John (Jack) Berger (1929--) Married
2005)---William Lemley (Brother of Susanna)

Susanna Ellen Lemley (1932-

!
!
!
Susan Elizabeth Berger (1966)---John Christopher Berger (1969)
married Valorie Berger in 2011
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EDITORS NOTE
As I begin my eighty-sixth year, I often wonder, as most my age do, where have the years
gone? It has been all too short. But remembrance makes me realize what a wonderful life it has
been-how I have been blessed with family and friends.
So be with me on my lifes travels as I sit on my lake cottage porch, word processor at hand,
turn on an album CD of Eddy Howards songs ( Careless, My Best to You, To Each His Own)
recorded in the 40s at Chicagos north side Aragon Room, and, like being hypnotized, go back,
and back and back.

John R. Berger
January 1, 2015
Lake James
Angola Indiana

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PROLOGUE
I opened my eyes immediately. I was completely under the surface of the water and standing
on the bottom. All I could see were bubbles rising up from my face and a hazy pier post. I was
four years old and could not swim. I had wandered out on the pier at Clarks Lake while my
family was eating a late dinner at our cottage and had fallen into the deep water. I was in the
hands of God.
I was given the strength to reach up, clutch the edge of the pier and hoist myself out of the
water. I had neither breathed in nor swallowed any water. Soaking wet, I appeared before my
startled family at the dinner table. My mother took me to a couch, covered me with a beach
towel and put her arms around me. I started to cry but soon made myself stop. I thought-boys
dont cry.
I had been saved from drowning, but I wonder-for what purpose? Have I repaid the gift of
life given to me that August evening?

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CHAPTER ONE
THE EARLY YEARS 1929-1935

Have you ever tried to remember your early thoughts and experiences? I have and it is most
difficult. The remembered early ones are usually just fragments but are part of the mosaic of my
life.

My Family
I was born at 8:29 a.m. on January 11, 1929, in Christ Hospital in Cincinnati, Ohio. I was
christened John Robert Berger but was called Jack to avoid confusion with my father. We
(mom, dad, older brother George and older sister Peggy) lived in a small house on Morrison
Avenue in the suburb of Clifton in Cincinnati overlooking the Ohio River.
Dad, John Norbert Berger, was born in 1898 in Cincinnati, Ohio, was of Catholic German
ancestry and part of a large loving family. He was a graduate of Xavier University. For three
generations, my dad, his father and grandfather had been in the wholesale cigar leaf tobacco
business under the name of the John Berger & Son Company (my grandfather was the Son).
My great grandfather, John Berger, had come to Cincinnati from Alsace Lorraine in the 1850s.
His son George, my grandfather, married the daughter of his fathers friend who had settled in
Peoria, Illinois, and established the well known Trefzgers Bakery at the site of what is now the
Pere Marquette Hotel in Downtown Peoria.

277

Dad had three brothers and two sisters. He was the eldest. All except Marcia, who became
an artist, were married and each had several children. Sister Adele (my baptismal god mother)
married a young medical doctor and went west to Texas to establish a ranch and small dynasty.
One brother, Alfred, became a well known scientist and university professor. Dad, with two of
his brothers, Carl and Richard, followed their father in the cigar leaf tobacco business. The
brothers expanded the business to include the buying and warehousing of Pennsylvania cigar
tobacco near Lancaster, Pennsylvania, and Ohio cigar tobacco near Germantown, Ohio; growing
and warehousing of Connecticut broadleaf cigar tobacco (a thimble full of tobacco seed would
plant one acre) at a three hundred acre plantation near South Windsor, Connecticut (replete with
housing for the Jamaican seasonal workers); and two cigar factories, one in Frankfort, Indiana,
and the other in Wheeling, West Virginia. The original John Berger & Son Company is now The
National Cigar Company. The cigar factory in Frankfort, Indiana, was and is the home of such
memorable cigar brands as Lincoln Highway (From Coast to Coast), The Hoosier Poet (with
picture of James Whitcomb Riley on the box lid), The Bankable (You can Bank on Bankable), El
Verso, and R.G. Dunn. Also made at the Frankfort factory is the La Fendrich cigar. This brand,
now owned by National, was originally owned by John H. Fendrich who had a large cigar
factory in Evansville, Indiana, in the early 1900s. The factory was the largest cigar factory in
the world and the largest employer of women. The cigars were all hand rolled and produced at
the rate of 350,000 a day. John H. Fendrichs only child, daughter Mary, married Terre Haute
multimillionaire Tony Hulman of Clabber Girl and Indianapolis Motor Speedway fame.
I had two mothers. One was white and related to me by birth. The other was black and
related to me by love. My thoughts of my white mother are pleasant so she must have done a
good job as a mother. It is my black mother, however, who was always there to play with me

278

and keep me clean and well fed. I remember playing blocks with her, and eating a large bowl of
her wonderful vegetable potlikker broth in our small kitchen breakfast nook. I must have
realized her skin color, but it had no significance to me. She was my other mother. Her name
was Lillian, or La Le Law to me.
Following is a photo of La Le Law holding me, and with my sister, Peggy, and my brother,
George.

279

Mom, Margaret Lester Berger, was born in 1900 in Cincinnati. She was proud of her English
ancestry-her mother, Grace Lester, was a descendant of Roger Williams of Rhode Island fame,
and her father, Charles E. Lester, was a descendant of the Duke of Leicester. Mom attended a
Catholic college in Tuscaloosa, Alabama, but did not graduate. She became engaged to dad
while at school and, according to the good sisters, spent too much time shining and admiring her
large diamond engagement ring rather than pursuing her studies.
Mom had a twinkle in her eye and always enjoyed a good joke. One of her favorites went
something like this. The young priest was nervously giving his first sermon under the watchful
eye of the elder pastor. After the sermon the young priest went to his mentor for his comments.
The elder priest complimented the young priest for his wonderful sermon and stated that he had
made only three small mistakes. First, Daniel did not get into the lions den. Secondly, Jonah
did not swallow the wale. Thirdly, there is not going to be a peter pulling contest at St. Taffys
next Wednesday.
Mom had two brothers and a sister. Her younger brother, Lester Lester, was a Rhodes
scholar and studied philosophy at Oxford University. He later had a near nervous breakdown
and spent the rest of his life doing landscaping. Moms sister married Stanley Bateman who
started the first mens store in downtown Cincinnati.

His trademark was to greet every

prospective customer near the front door. I wonder if Sam Walton purloined his Wal-Mart
greeter idea from Uncle Stan. There is a difference though-uncle Stan always wore a dark suit
and tie with a white carnation in his lapel.

280

Moms other brother, Charles E. Lester, Jr. was a graduate of the University of Virginia Law
School and a very successful criminal defense attorney in Newport, Kentucky, which was just
across the Ohio river from Cincinnati.
My memory of my mothers father, Charles E. Lester, is limited to visits to his office and
lunch at the Union Central Life Insurance building in downtown Cincinnati.

He was an

executive with the company and had a large and impressive office on the fifteenth floor. He
seemed rather old to me (he was about 58) but kind and gentle. The treasure trove at his office
consisted of a box of used pencils, maybe fifteen or twenty, and about three inches long.
Grandfather always saved them for me and it was the highlight of the visits to receive them as a
gift. Why I was so excited about the pencils and what I ever did with them is still a mystery to
me.
My grandmother, Grace Lester, would visit our house occasionally but I have no clear
recollection of her during these early years.
My recollection of my grandfather, George Berger, and grandmother, Petronella Berger, is all
based upon Christmas. The whole family would gather at their Victorian house on Hosea
Avenue each year to celebrate. The Christmas tree seemed huge to me. Along the base was a
lighted village with a train running through. The ornaments were made in Germany. My
favorites were the ones shaped like musical horns which you could blow into and make noise. I
still have several of the ornaments from their tree which I hang on my tree each Christmas.
There were many presents, abundant libations for the adults, and punch for the children, all under
the watchful eyes of my loving grandparents. The house was very large with a wonderful front
porch. Upon entering the house, the parlor, with electric player grand piano, was located to the

281

left, to the right was the living room and Christmas tree, and in the center was a hallway ending
with a grandfather clock and a large staircase with a landing leading to the upper floor. In the
middle of the house to the right was the dining room with a table seating twelve and
accompanying sideboard. In the back to the right was an early version of a family room-library,
in the center there was a breakfast room with bay window overlooking the formal garden with
sunfish pools, and the kitchen and pantry to the left.

The second floor consisted of four

bedrooms and two bathrooms. There was a third floor that had a back bedroom and bath for the
servants, and a large sunny front room used as a studio for my aunt Marcia who was a water
color artist. All of the original gas light fixtures had been converted to electricity. In the
basement there was a room with a bar, game table, pool table and cuckoo clock. The bird was
missing from the clock as he (or she) had been shot with a rifle by my Uncle Rick one New
Years eve. The basement also had a large indoor pool which was the first in Cincinnati.
I do not know when or how mom and dad met. I do remember mom telling me a charming
story. As she related to me, she and a girl friend were taking a walk in the girlfriends
neighborhood one summer evening. Mom stopped in front of a large Victorian house at 218
Hosea Avenue.

She had an overpowering awareness of the future.

She told her friend,

Someday, I am going to marry a man who lives in this house. She was sixteen. Five years
later she did indeed marry a man who lived in that house, my father.
Mom related to me a story that showed dads devotion to her. Once when mom was returning
on the train to Cincinnati from Tuscaloosa, dad met her at the train carrying a large pistol. He
mistakenly thought that a gentleman friend was accompanying mom on the train. Dad obviously
did not cotton to gentlemen friends for mom.

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This vignette does not surprise me. Dad even as a youth appeared at times to be a bit
impetuous. Dad had told me that when he was young, he and his buddies liked to play war.
They had fashioned long wood swords and rifles that fired huge rubber bands. They planned to
attack a rival group on the next street. When the appointed time for attack arrived, one member
of dads army did not show up. The absent soldier was immediately court marshaled and
sentenced to hanging for desertion. The absent soldier was promptly found playing in his back
yard. A rope was found and the hanging commenced. Dad told me that they were not actually
going to hang him, just hoist him up a little. The horrified mother of the hangee, peering out her
back kitchen window, thought that her son was about to meet his maker and promptly halted the
military exercises.

This and That


Not far from our house was the Clifton community business center located at the intersection
of Clifton Avenue and Ludlow. It had a White Castle with five cent hamburgers; a 5 & 10 cent
store which was great for shoplifting (not by me) by slipping items into the pockets of boys
knickers with a hole in the bottom of the pockets so that the items would fall into the knickers
bottoms; a barber shop (25 cent haircuts); a one pump filling station with a one car service bay
attached to the office which had a coke machine and a glass front counter containing the cash
register, cigars, cigarettes, candy, gum and a potato chips holder; a small Kroger grocery store
(Kroger started in Cincinnati in 1883); a drug store with ice cream counter and three tables,
Graeters (founded in Cincinnati in 1870) ice cream of course; several small offices; and the
Esquire Theatre. The Esquire movie theater was founded by my grandfather in 1911 as a 500
seat movie theater. It closed in 1983 and became a Wendys, but was resurrected as an art
theater in 1990 with three screens.

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I saw my first movie at the age of four in the summer of 1933 at the Esquire Theatre. The
movie was a short film animated cartoon, Three Little Pigs. It was Walt Disneys first and
featured Fiddler Pig (who played the fiddle), Fifer Pig (who played the fife), Practical Pig (who
played the piano), and of course, the Big Bad Wolf. I had only seen picture books before and
was enthralled by the movie. Also, I had learned a good lesson-when I built my own house
someday, I vowed it would be made of bricks.
All of the houses in our neighborhood were small but well kept. We had a large back yard
with terraces, walkways, floral garden beds, many shrubs and trees. It was a great yard for
hiding Easter eggs, especially since I could watch the eggs being hidden by my dad from my
second story bedroom window. I always found more eggs than my sister and brother!
One large room in our house was dedicated completely to play things (except dolls which
were banished to my sisters bedroom).

Among other toys, we had a Lionel train set, a

Wyandotte tin airplane, block sets, tootsie toy automobiles, pickup sticks, erector set, and a preLego set with wood plug together parts that could be made into animals or humans. It was called
Krazy Ikes. It was from this play set that I was given the nickname Ike. I do not know why
it was given to me-because I played with the game so much, or because I looked sort of like one
of the goofy figures? I hope not the latter.
My favorite toy was a penny bank in the form of a fierce lion. It was painted gold with a red
mouth, made of cast iron and about five inches long. By removing a screw the halves came apart
and the pennies could be removed. It was not until many years later that I discovered that my
wife as a child also had a favorite penny bank-a darling kitty made by Hubley of Lancaster,
Pennsylvania.

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The very first song that I can remember was In the Valley of the Moon written by Joe Burke
in 1933. At the slightest prompting, at age four, I would sing the song for all my parents
admiring guests. The song was later revived by western singer Hank Thompson and as I recall
goes something like this:
Down the lane we strolled neath the roses- in the valley of the moon
And I lost my love neath the roses- in the valley of the moon
We kissed and said goodbye-she cried and so did I
Now do you wonder why I am lonely
But well meet again by the roses-in the valley of the moon.

These were the days of riddles, knock knocks, tongue twisters, rhymes, and jokes. Remember
What has four wheels and flies? or What is black and white and red all over? or What is
full of holes but still holds water? The answers should be printed upside down at the bottom of
the page but here goes: A garbage truck-a newspaper-a sponge. Can you recall Knock knock,
whos there? Police. Police who? Police open the door. or Knock knock, Whos there?
Lettuce. Lettuce who? Lettuce in its cold outside.
How about tongue twisters such as If Peter Piper picked a peck of picked peppers, how many
pickles did Peter Piper pick?
As to rhymes, Jack and Jill went up the hill and Jill came down with a five dollar bill. I did
not have the slightest idea as to the implications of this rhyme until reaching puberty. At the
time I just knew that, for some reason, I should not recite this to my parents. Another rhyme that
I learned from my buddies and could not recite to my parents was based upon the fact that in
those days all public toilets had coin operated locks on the stall doors. You had to pay to get in.

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It went like this:


Here I sit, broken hearted.
Paid a nickel to shit, and only farted.
What is a double petunia? is a question my parents had me answer often to relatives and
friends. When asked the question before a rapt audience I would recite:
A double petunia is a flower, like a begonia.
A begonia is meat, like a sausage.
A sausage-and-battery is a crime.
Monkeys crime trees.
Trees a crowd.
Roosters crowd and make a noise.
The noise is on your face between the eyes.
Eyes are the opposite of nays.
A horse nays and has a colt.
You catch a colt and wake up in the morning with double petunia.
(Applause: Author unknown for obvious reasons)

Ethnic jokes were permitted in my youth. A rather raunchy one that I remember was: Two
polish guys saved their money for about a year in order to buy an automobile. They had saved a
total of $75.00. They went to a used car lot and asked a salesman to show them cars in that price
range. The salesman said that he did not have any cars that cheap but he had taken in a camel
that morning as trade and they could have the camel for $75.00. They agreed, paid the money,
jumped on the camel and happily rode down the street. When stopped at a red light, a car drove
up next to them and the driver said to his passenger Look at the two assholes on that camel.

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The curious poles promptly jumped off the camel, went to the rear of the camel, pulled his tail up
and looked under the camels tail.
Cincinnati had many hills and luckily one hilly straight street about a quarter of a mile long (it
seemed to me) ended right in front of our house. It was great for snow sledding as the streets
were never plowed. I would mount my trusty Flexible Flyer sled (belly down) at the top of the
street and race all comers including the girls whom I managed to crash into and push into the
curb.
Among the early recollections that I have, two stand out. One was about my mother and the
other, my dad.
I remember one afternoon that my mother, all alone in her bedroom, was crying. Her door
was closed but I could clearly hear her. I felt very sad. Why was she crying? This was the only
time I ever saw or heard my mother crying except for when her father died. I wonder why I still
remember. Perhaps it is because, even then, I could not bear to see a loved one unhappy.
One evening, when the family was all assembled in the living room (no family rooms then)
in front of the Crosley radio to hear Fibber McGee and Molly, my dad decided to entertain us by
dancing around in the room. In the process of dancing, he raised one leg far in the air and as it
came down, it crashed into my brothers knee. It must have hurt my brother very much. Dad felt
terrible. He came to my brother and put his arms around him. I noticed tears on the face of my
father. He also, as I, could not bear to see a loved one unhappy.
Following is an early photo of my sister, Peggy, and my brother, George, accompanied by
Taffy.

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Clarks Lake
Summers were spent at a cottage at Clarks Lake, which was just south of Jackson, Michigan.
Summers in Cincinnati were hot and humid and my parents thought that it would be more
healthful for the children to be in Michigan. Dad would spend weekends at the lake and be in
Cincinnati during the week. The rest of the family would come to the lake right after school was
out the first of June and stay until school started the day after Labor Day. The trip up to the lake
north on US Highway 127, in our 1928 Franklin automobile, took about six hours not including a
stop for lunch and apple pie a la mode at Balyeats Coffee Shop in Van Wert, Ohio.
I loved the lake and the small cottage. The lake had two basins and three dance halls-Larry
Millers Dance Hall (formerly Pleasant View Hotel and Pavilion), Ocean Beach (which was built
completely over the lake), and Eagle Point (later converted into a roller skating rink). We had a
long wooden pier and a wooden fishing boat with no motor. The cottage had a kitchen (with
back porch ice box), dining room, and lakefront living room. Upstairs was a bathroom, a
bedroom, and a front sleeping porch for the children. Outback was a two hole toilet.
Other than general happy thoughts about my six years at Clarks Lake (including fishing
almost every day-see my following photo with Eagle Point dance hall in the distance), only a few
specific memories remain.
I fondly recall warm summer evenings with a soft breeze and poplar leaves rustling, just
before I would fall asleep on the screened sleeping porch, hearing the music from the orchestra at
Larry Millers Dance Hall flowing over the quiet water. Do you remember two of my favorite
songs that the orchestra often played, Indian Love Call and In a Shanty in Old Shanty Town?

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I developed rheumatic fever when I was about five and for one whole summer I had to be in
leg braces. I do not remember being unhappy with the braces. I spent most of my time sitting on
the front lawn of the cottage in a lounge chair with people fussing over me. A teenage very
pretty girl who lived about five cottages away would come to see me almost every day and
before she would leave, she would kiss me on the cheek. I was thrilled. I can still see her
walking away, looking back, smiling, and waving goodbye while I tried to hide my blushing
face. I think my appreciation of girls started that summer long ago.
I always had an inquisitive mind but the answer sometimes comes many years later. For
example, a married couple with two teenage children lived next door to us at the lake. The
husband was away all week at work and only came to the lake on weekends. Every late Saturday
afternoon when he would arrive at the lake I would see the happy couple, hand in hand,
disappearing into a nearby cornfield. They would return about a half hour later, still smiling but
with no corn. I was mystified and asked my dad about this. His response was that he was busy
and would talk to me about it later. He never did and I lost interest. As I reflect, it was like
seeing an early version of a Viagra commercial.
My last remembrance of Clarks Lake was when we were about to leave in late August of
1935. My parents had decided to rent a cottage at Lake James near Angola, Indiana, for the next
summer and we would not be returning to Clarks Lake and our lake friends. One person that I
would especially miss was a girl about my age that lived in a nearby cottage. When I last saw
her to bid farewell, as we parted, she smiled and said to me Good riddance to bad rubbish.
The wonderful and carefree early years were over. New challenges awaited. What would the
future hold?

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Jack, the fisherman, at Clarks Lake, age 6

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CHAPTER TWO
Growing Up 1935-1943
Many exciting things were about to happen. I would move to a new home in Cincinnati, start
grade school, and spend summers at a new lake in Indiana.

Our New Home


In the summer of 1935, when I was six, we moved to a house on the corner of Brookline
Avenue and Glenmary in Clifton which was about a mile from our first house. It was an entirely
different type of neighborhood with two acre estates, stately homes and gas street lights. The
previous owner had earned a small fortune delivering by train fresh fruit from Florida to the
Midwest.

Unfortunately, an unexpected severe freeze hit a large trainload of his fruit in

Alabama and all was lost. As a result, he became bankrupt and his home had to be sold. Dad
was able to buy our home for $26,000.00, a fraction of the original construction cost.
Our new home was very large and looked like an English manor. It was on a hill and had a
large winding driveway. The grounds had formal gardens, rock gardens with flowing streams,
and an enclosed courtyard with high walls lined with flowering rhododendron bushes. In the
courtyard there were flower beds surrounding a pool with center fountain presided over by a
statue of a small naked boy holding a fish. The water came out of the mouth of the fish. We
named the boy Butch.

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The house had a large foyer with a two landing stairway leading to an upper balcony. The
foyer led to a formal dining room on the right (with hidden button under moms dining room
chair for summoning the serving maid); a breakfast room straight ahead; and to the left a walnut
paneled living room with fireplace and grand piano. To the left of the breakfast room was the
loggia which, together with the breakfast room, overlooked the courtyard. The recessed fountain
in the loggia and the loggia floor were of glazed Rookwood made especially by the Rookwood
Pottery Company of Cincinnati. Adjoining the dining room were the butlers pantry, kitchen and
storage rooms. There was an attached three car garage and garden house. The dining room
opened onto an all glass greenhouse. The only time I can remember being in the living room
was at Christmas time because the tree was set up there, and when practicing playing the piano.
I had taken piano lessons for about a year before they gave up on me. I did learn to play the
introduction to Ludwig van Beethovens Fleur Elise which I still can play to the amazement of
friends (together with the top or bottom of chopsticks).
The second floor of the house had the large stairway balcony leading to the master wing with
bedroom and fireplace, bathroom, ladies dressing room and closets; to my bedroom and my
sisters which had a shared bathroom in between; and to a back wing over the garage which had
a bedroom and bath for the maids, and my brothers bedroom. The basement had a laundry room,
a utility room, and a recreation room with ping pong table, game table, and long bar.
My mother was assisted from time to time in running the house and managing the children by
live-in upstairs and downstairs maids Mary and Helen (Irish lassies of nineteen and twenty-one);
Marie the colored cook, Elwood the colored butler/gardener; and a part time colored laundress
named Elizabeth.

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Grade School
Not only had we moved into a new neighborhood with a new house, but in September I was
about to embark upon nineteen years of schooling. It was 1935 and I was six years old.
I attended St. Ursula Academy for my first year of school. The only remembrance I have of
first grade is standing on the stage for our recital with Sister Marie conducting and proud parents
in attendance. At the appropriate time we all bowed down to avoid hitting our heads on the
bridge as we sang the chorus of Fifteen Miles on the Erie Canal:
Low bridge, evrybody down,
Low bridge cause were com-in to a town,
And youll always know your neighbor,
Youll always know your pal,
If youve ever navigated on the Erie Canal.

I was the only boy in the class. I wonder if this had any deep psychological effect on my later
life and opinion of women.
At my urgent request I transferred for the rest of grade school to Annunciation Catholic
School, a converted church building with four classrooms near my home. Two grades were in
each room presided over by a stern and loving Franciscan Sister. Father Kelly was the pastor of
the adjoining church and each Monday morning quizzed the faithful children on their knowledge
of the Catechism. We had spent many hours each week memorizing the answers to the questions
contained therein. I still remember the first question and answer: Question: Who made you?
Correct answer: God made me.

Many of the questions and answers were a mystery to me.

What is an immaculate conception? How could a ghost be holy?

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Inspired by Father Kelly, St. Patricks day was always a big event. We practiced singing Irish
songs for weeks and on St. Patricks Day gave our performance for Father Kelly and a large
group with Irish ancestry or sympathy. Among the many songs that we sang, one stands out, The

Wearing of the Green. It was written in the late 1800s and inspired by Americas successful
revolution against British rule. It was a poem and then a song written in protest against the
oppression of the Irish people suffered under British rule in the 1700s and 1800s. The color
green was the symbol of Irish independence and forbidden to be worn. I can still hear the
ringing chorus:
O Paddy dear, and did you hear the news thats going round?
The shamrock is forbid by law to grow on Irish ground;
St. Patricks Day no more well keep, his colours cant be seen,
For theres a bloody law agin the wearing of the green.
I met with Napper Tandy and he took me by the hand,
He Said, Hows poor old Ireland, and how does she stand?
Shes the most distressful counterie that ever yet was seen,
And theyre hanging men and women for the wearing of the green.
As I chimed in with my tenor voice singing The Wearing of the Green I had no concept of the
years of Irish oppression by the British and I certainly did not know who Napper Tandy was.
Napper Tandy was in fact a shopkeeper in Dublin who, having been identified by the British as a
freedom fighter, had to flee to France.
I was a budding artist in the sixth grade and as part of my duties as art editor on the
mimeographed monthly school paper I was assigned by Sister Margaret to make a drawing of the

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statue of Jesus located beside the alter. Upon proudly submitting the completed drawing I was
informed by a disturbed Sister Margaret that I had sketched Saint Joseph! I am still somewhat
confused by some of the concepts of my faith.
Our playground was the gravel church parking lot with no fence around it. We could run out
into the street and get hit by a car if we wanted to. Our play equipment consisted of a teetertotter and swing set. During and after school the boys would play tackle football. As a result,
often I would come home with small pieces of gravel imbedded under the skin on the palm of my
hands and with various other cuts and bruises. Today the school would be sued for not providing
a safe environment (manicured grass, soft wood chips under the play equipment and a fence) for
recess. Also I am sure the good nuns would be sued for violating the privacy rights of the boys
because the nuns frequently came into the boys toilet (complete with a long trough urinal) to
stop fights.
I remember only one joke from grade school: You are an American if you are in your living
room. Q. What are you when you are in your bathroom? A. European.

Awakenings
Even though Annunciation school was near our home, it served a larger area that my mother
said included The rougher elements. It was due to these rougher elements that I was first
tested in the third grade as to my knowledge of sex. When asked by several seventh graders If
your Uncle Jack was on the roof, would you help your Uncle Jack off? I replied Probably, but
I dont have an Uncle Jack. The boys snickered and walked away. That evening after dinner I
told my dad what the boys had asked me and why they thought my reply was funny. Dad

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hesitated, smiled a little, and said that it was kind of an adult joke and he would explain it to me
later. Later turned out to be about four years when I was in the seventh grade.
In the seventh grade I was introduced by my parents to the adult world in two sessions.
The first session was with my older brother and mother. I still wonder why my father was not
present.

The session was about masturbation.

Although I do not remember the exact

conversation, I do remember that the phrase to play with myself was used (which I did not
really understand as I believe that the session was a little bit premature for me); that it was not a
sin; and that, contrary to what I may have heard, I would not go blind if I indulged in whatever it
was. I thanked them and looked forward to adulthood. Bottom line: I have great eyesight today.
In the second session, my parents gave me a copy of Sane Sex Life and Sane Safe Living. I
was told to only read the third chapter and not look at any of the graphic diagrams or
photographs in other chapters! However, I peeked! This was the extent of my formal sex
education. After reading the book, I showed my maturity by asking a third grader Do you know
what a fishermans dream is? After he answered No, I replied Two nights on Veronica
Lake. The third grader asked where Veronica Lake was located. Feeling superior, I laughed
and walked away.

I was fascinated by the budding breasts of some of the seventh and eighth grade girls. I guess
it was the normal progression of hormones in a thirteen year old. One outlet for this allure took
the shape of again expressing my artistic ability by drawing nudes in charcoal from the
photographs of German models in Coronet Magazine (This was the early Coronet before it
became family oriented).

Below is one of my charcoal drawings.

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Another outlet was wrestling with a well endowed thirteen year old Jewish girl (I was told
that Jewish girls mature early and its true). We would always end up on the ground with one of
my hands gently touching her ample breasts. She must have known what I was doing but she
never complained.

This and That


Having manners and proper etiquette were very important to my parents. They said it was
simply thinking about others, being polite. It was what made you a gentleman. I was taught,
among other things, to say please and thank you, to promptly send thank-you letters, to keep my
elbows off the table, to wait for others to be served before eating, to help seat the ladies at the
table, to not sit down at the table until all ladies were seated, how to hold my fork and knife,
what to do with my napkin, to not talk with food in my mouth, to take my hat off when entering
a building, to stand up when a lady enters the room, to open the car door for a lady companion,
to open a building door for a lady and to let her enter first, and when walking with a lady on the
sidewalk, to walk on the street side. I have tried to follow their advice and pass it along to my
children. When much later I taught law classes in the business school at Tri-State University, I
once gave a little lecture to my business students on the importance of manners and etiquette in
their future business life. Later that afternoon one of the female students came to my office and
said that she and several other female students were very offended by my comments concerning
manners. She said that it was demeaning to them to be treated differently than men (the standing
up, opening doors, etc.), that it amounted to sex discrimination, and that they could take care of
themselves. Not wanting to offend, I did not give my manners lecture again.

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I was very active in trying to supplement my meager allowance (twenty-five cents per week).
My commercial endeavors, except for one, were disasters. Among my failures was a vegetable
garden which was destroyed by various insects including the fat and gooey green tomato bug (I
gleefully fried them in Maries large iron skillet); an attempt to sell eight kittens which I carted
all around the neighborhood in my red wagon (how could I lose as I got them for free);
producing and selling chicken eggs. The egg business began by my building a large wood
chicken coop out of leaf tobacco crates obtained from dads office. The next step was to get on
the electric street car at the Clifton center and go to downtown Cincinnati to purchase the baby
chicks. I bought two dozen chicks which were placed in a box with holes in the side for
transportation to my home. They were guaranteed to not be male chicks. I wondered how you
could tell. On the way home on the streetcar, the box lay on my lap, the baby chicks chirped
away, and the passengers gave me strange looks. Anyway, as you could guess, the chicks all
turned out to be roosters which had the habit of crowing at five each morning.

At a

neighborhood meeting it was unanimously voted that young entrepreneur John (Ike) should
dispose immediately of his chickens. To try and salvage part of my investment, I sent my
chickens to chicken heaven, boiled them, plucked off the feathers, and gutted them. I tried to sell
them to mom with no success. I then turned to my grandmother Berger who felt sorry for me
and purchased the whole lot. I found out much later that she had promptly pitched them.
My one successful business endeavor was my magazine route.

The Curtis Publishing

Company early on developed a scheme to increase circulation by using child labor. Curtis was
the very successful publisher, among others, of The Ladies Home Journal, The Saturday

Evening Post, Jack and Jill, and various comic books with mighty heroes accompanied by large
breasted women vanquishing vicious villains.

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My part in the scheme was to canvas the

neighborhood and solicit new subscribers to one or more of their magazines. I would then
deliver the magazines and collect the cover price of five cents. I would keep one cent as my fee
and remit the balance monthly. As a bonus, I could earn brownies and greenies (five brownies
equaled five greenies, or was it the other way around) which could be used to get various
enticing products from the Curtis catalogue. As an example, five hundred greenies would
purchase a Red Ryder BB gun. It was an early version of the S&H stamp concept. Since talking
people into spending their hard earned money on magazines during the great depression was
tough work, I developed a brilliant business plan worthy of the Harvard Business School. I
purchased established magazine routes from other neighborhood boys at five cents a customer. I
would then have the previous owners of the routes continue to deliver and collect for the
magazines, and I would pay them one half of one cent per customer. With all of the money I
took in plus all of my brownies and greenies, I was the envy of the neighborhood.
An additional source of revenue was derived by me from working Saturday mornings at my
fathers wholesale leaf tobacco sales office on Fourth Street in downtown Cincinnati. The office
flooded to about three feet deep every four years in the spring by the rising Ohio River. I guess
that this was why the rent was so cheap. I felt like a real adult taking the streetcar downtown to
work like everyone else. I would work four hours and then be treated to lunch by my father at a
German delicatessen. He would pay me fifty cents an hour which I think was more than his
clerk was paid. My job was janitorial and included cleaning the two toilets and five usually full
spittoons (defined in my Thesaurus as a container into which tobacco chewers spit) strategically
placed around the office. My uncle Fred was a scientist and he had invented some kind of
miracle detergent like soap called Emeraldite. His brothers let him have some space in the back
of the office for free to store large barrels of his Emeraldite. I remember two things about

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Emeraldite. First, the stuff was spilled all over the place and I was told that I did not have to
sweep it up. Second, if I collected a large amount of spit in my mouth, upon spitting it out, the
gray Emeraldite powder turned a bright green.

I did have one investment fiasco. My brother George collected foreign postage stamps. In
response to my magazine route success my brother decided to go into the business of selling
stamps on approval.

He advertised his stamps for sale in a magazine and stated that a

prospective purchaser could order a group of stamps on approval, select and pay for the ones that
the purchaser wanted to buy, and return the purchase price and not purchased stamps to my
brother. George formed a pretend corporation and issued actual stock certificates to investors. I
was the only investor to the tune of five dollars. As you would expect, no person who had
received stamps on approval ever purchased or returned any. The business became bankrupt and
my stock was worthless. The next Christmas I wrapped the stock certificate in a beautiful box
with many ribbons, and gave it to my brother as his Christmas present. I learned a good lesson
and I have never invested in any stock since then.
The Spanish civil war was fought between 1936 and 1939. It was between the Nationalists,
first created by a coup dtat of Spanish generals and supported by Fascist Italy and Nazi
Germany, attempting to overthrow the Republicans who were in power.

Strangely, the

Republicans were supported by the communist Soviet Union. Over 2,000 Americans fought on
the side of the Republicans. The Nationalists won and an authoritarian state was created led by
General Francisco Franco. The war was brutal and more than three hundred thousand people
died as a result. New tank warfare tactics and the terror bombing of cities from the air were
predominate features of this war. But I did not know any of this. All I knew was that there was
a brutal war going on and that 2 1/2 inch by 4 inch cardboard picture cards (with an enclosed flat

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piece of gum) portraying the battles and atrocities of the war could be purchased. The pictures
depicted many horrible battles with bloody arms and legs being cut off, helpless soldiers being
bayoneted, tanks crushing the soldiers, and mothers and children being blown to bits by dirty
Nationalist airplanes. The pictures on the cards fascinated me and I tried to obtain the really
gruesome ones by purchase or trade. The real fun, however, was that the cards could be used in
a competitive game. The competitors (two to four) would stand in line, hold a card between the
thumb and forefinger, and flip the cards like a whirligig to the ground in front of them. Each
would take a turn and if you partially covered any card on the ground with the one you had just
flipped, you won any covered cards. If you were good at flipping, you could amass a large
quantity of cards, and to have the most cards was the envy of your buddies.
In the old days if you wanted to do something that could harm or (heavens forbid) kill you,
you could go right ahead. Big brother could care less. One of my favorite rainy day activities
involved what today would be classified as dangerous, hazardous to health and not permitted. It
was the making of lead soldiers. Kits could be purchased which included the caldron, large
pieces of pure lead (the type they now say poisons you), and WW II vintage soldier molds. The
lead would be first melted in the boiling cauldron and then poured into the mold. The finished
soldiers were about three inches tall and depicted the soldiers in various rifle firing positions.
The next step was to position an equal number of the soldiers in two opposing sand fortresses
previously made in our large elevated sandbox (next to the chicken coop). Then the real fun
began. A buddy and I would each take a position near a fort and alternately fire at the opposing
soldiers with our BB guns (mine was a Red Ryder obtained from brownies and greenies). The
one with the last soldier(s) standing (or kneeling) would be the winner of the battle. I never
burned myself with the scalding molten lead, never got lead poisoning, and never shot an eye out

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of a buddy. Guns, battles and war were fun in those days. Later of course I would change my
mind when my brother George, as a WW II medic, left for North Africa, Sicily and northern
Italy, and when I became a private during the Korean Conflict.

I really liked to build rubber band wind up model airplanes-all shapes and sizes, mono and biplane. In those days you would start from scratch with a kit containing the structural plans, a lot
of balsa wood, and glue. Also you had to have a razor blade to cut the wood to the correct sizes,
pins and a large wooden board. The board would be first covered by the plans and then the balsa
wood would be glued and attached to the board by pins over the pattern. The pieces would then
be assembled. After the propeller and rubber band were attached, thin paper would be attached
to the assembled skeleton of the airplane.

Flight would be from a second floor window

preferably not into the 5000 volt power lines next to the house.

Another fun thing to do was to collect and play marbles. The players would first draw a circle
in the dirt or gravel. The first player would toss a marble into the circle (a crummy one) and the
other players would take turns knocking other player marbles out of the circle with their own
marble. If you knocked a marble out, you won it. The shooting position was to knuckle down
on the ground or on top of your hand for a higher angle. How you held the marble between your
fingers when shooting was critical. The marbles had crazy names (Aggies, Indians, Tigers)
depending on what they looked like or what they were made of.

Sadly, television, computers

and other distractions have wiped out lead soldiers, my Sopwith Camel WW I airplane, the game
of marbles and most other important things in childhood.

Evenings at home were spent listening to the radio. The family would gather in front of the
radio and listen to such memorable programs as The Shadow with Lamont Cranston and Margo

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(Who knows what evil lurks in the hearts of men? The Shadow knows.); I Love a Mystery
(brought to you by the owners of Olga Coal Company with Jack, Doc and Reggie); and Cecil B.
DeMilles Lux Radio Theater from the little theater just off Times Square staring Les Tremayne
and Barbara Luddy (Good Evening Mr. and Mrs. First Nighter).

Just for fun go to

www.freeotrshows.com/otr/l/Lux_Radio_Theater.html to listen to all of the Lux Radio Theater


original radio programs.
During the day, we would often listen to one of the original radio soap operas, My Gal

Sunday. It first appeared in 1929 and ran until 1959. It was the story of an orphan girl named
Sunday from the little town of Silver Creek, Colorado, who in young womanhood married
Englands richest, most handsome lord, Lord Henry Brinthrop. Each episode began with the
question-Can this girl from a small mining town in the west find happiness as the wife of a
wealthy and titled Englishman?

An annual summer day trip with my dad was the highlight of the year. We would leave early
to catch the eight oclock departure of the Island Queen paddlewheel boat heading for Coney
Island, the downriver amusement park. The original Island Queen had its maiden voyage in
1896 and sadly the fourth and last Island Queen burned to the waterline in 1947. On the trip we
would have our pictures taken for a quarter in the little picture booth. I still have one of dad
smiling with his jaunty fedora (like Indiana Jones). I would not ride any of the three roller
coasters. It would be years later with my children that I screwed up enough courage to ride them
at Cedar Point at Sandusky, Ohio. My favorite ride at Coney Island was the Tunnel of Love ride.
Dad and I would embark in a little square boat and be slowly carried along by the current into the

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dark tunnel with many twists and turns and very scary people and animals jumping out at you.
Toward the end of the ride your boat would go clankety clank up a steep and very high (it
seemed to me) incline until the top was reached. Then down you would come about fifty miles
an hour on a river of water and splash mightily into the pool below. It was all designed to
completely soak everyone to the delight of the riders. Dad and I would play almost every game
along the midway and even ride the merry-go-round. Sadly, as the sun set, we would return to
the Island Queen for the return trip. It was always a wonderful day-just dad and I.

This is a photo of my dad taken in the photo booth of the steamer Island Queen on our way to
Coney Island amusement park.

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On December 7, 1941, WW II started. I was twelve years old and in the seventh grade. War
would no longer be something we just played. My brother was eighteen and in his first year of
college at Ohio University. He would be drafted into the Army after he completed his freshman
year. I will never forget the family being gathered in front of our radio on December 8th and
listening to President Franklin Delano Roosevelt address the Congress of the United States.
Yesterday, December 7, 1941-a day that will live in infamy-the United States was suddenly and
deliberately attacked by naval and air forces of the Empire of Japan.

Lake James

Also in the summer of 1935 our family started spending our summers at Lake James in the
northeast part of Indiana near the small city of Angola in Steuben County. Steuben County has
over 101 lakes carved out by receding glaciers over ten thousand years ago. Lake James is part
of a chain of lakes including Little Otter, Big Otter, Snow, James, and Jimmerson. Lake James is
the second largest lake in Indiana and has 1229 acres with a sandy bottom and a maximum depth
of 98 feet. The entire chain has 1878 acres. James has three basins, the largest being the first
basin where our cottage was located. Access to Lake James in the early 1900s was primarily by
boat or a few narrow winding mostly dead-end gravel roads. To arrive by boat, according to the
1914 Report of the Indiana Fisheries and Game Commission Lake James can be reached by the
Jackson Branch of the Lake Shore Railroad. You must get off at Angola, the county seat, and
catch the electric railway operated by the Angola Light and Power Company to Paltytown on the
southern shores of the first basin of Lake James. Paltytown has a few cottages, a supply store, a

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dance pavilion, and the three story Lake James Hotel. There are two piers owned by separate
boat lines that provide launches for excursions or passage to the cottages on the lake.

When my family first arrived in 1935, no longer did you take a launch to your cottage. The
roads had been much improved and Paltytown was gone. There were many family cottages on
the shore, two small grocery stores accessible by water, Meyers Boat Livery, lakeside Pokagon
State Park and beautiful Potawatomi Inn, and last but not least, Bledsoe Beach (hotel, coffee
shop and grocery, post office, arcade and dance pavilion with high arched roof and big bands
playing at 10 cents a dance). During the day it was always fun to stop off for a swim at
Bledsoes beach with the large pier and high diving platform, and perhaps have a bottle of
delicious non carbonated Pokagon Orange (made in Angola by Charlie Rodebaughs Angola
Bottling Works-orange, grapefruit, grape and crme soda).

For a small fee you could take a

scenic flight with a seaplane taking off from Fikes Point in the first basin. Mail was delivered
from the Bledsoe post office by boat to each cottage lake pier mail box.

Our new cottage was a typical lake cottage built in the early 1900s. The cottage was named
Holiday Lodge and was on Spring Point. Quite a few cottages were named and some had
bizarre names like Quit Your Bitchin. On the first floor the cottage had a large living room, a
side room used as a game room with an old wind up Victrola phonograph His Masters Voice,
dining room, kitchen, back bedroom and small lake front porch. The second floor had three
bedrooms and a bathroom. I will never ever forget the bathroom. One day when I was in a big
hurry to use the bathroom I hastily opened the door and behold-facing me and sitting backward
in the bathtub was a stark naked Inger. Inger Sather was our Swedish maid who to say the least,

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even though she was old (38), had a great body, and all of it was on display. She was the first
woman that I had ever seen naked (except for Coronet Magazine). I approved.

In the game room on the first floor, there was a large collection of 1920s records, old thick
bakelite 78s, which were fun to play. Are you old enough to remember or have you heard Im

Yours (Ask the sky above and ask the earth below, Why Im so in love and why I love you so?
Couldnt tell you though I tried dear, just why dear-Im yours); and Dew-Dew-Dewey Day
(When the fire is warm and cozy, and the old folks are away, what do we do, what do we do, on
a dew-dew-dewey day?). The original 1927 Columbia recording of Dew-Dew-Dewey Day by
Charles Kaley and his orchestra can be heard on:
www.youtube.com/watch?v=zANBdk5PyBI.html.
Our cottage marina consisted of a boat house, a thirty foot long L shaped wood pier, a
wooden row boat with a 2 horsepower Johnson outboard motor (the kind with the spark lever
attached by wires to the two spark plugs on either side, which controlled the speed), a small
wood experimental kayak made by Rieke that was almost impossible to get into and once you
did, it invariably turned over, and a twelve foot wood Thompson sailboat that took about an hour
to bail after each rain. The sailboat was made of mahogany, was very heavy, slow and had the
habit of capsizing. My brother and sister would sail her in the weekly races and always came in
last. Even a sailing canoe would beat them. Our neighbor had a 2 horsepower Elto Pal outboard
that was started by cranking the flywheel knob. If it started, the motor would either run forward
or backward.

You never knew which way it would run so you always held tight upon

embarkation. Another neighbor had a wood Thompson outboard runabout with a 26 horsepower
Evinrude motor. This was the most powerful outboard on Lake James. The real fun boats were

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the wooden inboard Chris-Craft and Gar Wood runabout speedboats. They were mahogany
hulled and beautiful. They did not go very fast by todays standards and some would not even
plane. There were only eight on the lake. I never got to ride in one. To compensate, I rigged
our powerful row boat up with ropes, pulleys and a steering wheel in front, and often took the
helm to set forth to find the pleasures (girls) of Bledsoes Beach.

I loved to fish. Right out in front of our cottage, along the weed and drop off line, you could
always catch a bunch of fat sunfish and bluegills with a cane pole and juicy night crawlers. Night
crawlers for bait were easily found at night on the surface of the cottage lawns with a flashlight.
For some reason the night crawlers would come to the surface at night and seem to pair off.
Upon inquiry, dad told me they were kissing. Crappies could be caught with a fly rod, with a
bobber and minnows as bait, along the edges of several of the shallow spots in the middle of the
lake. Large and smallmouth bass and northern pike could be caught by trolling with rod and
Pflueger reel near the weed and drop off line (you cannot troll today because of the many
speedboats and jet skis). My favorite bass baits were Plunker, Krazy Krawler and Jitterbug. The
surefire pike bait was the Daredevle. What wonderful names.
Also in the spring, right after the ice left the lakes, the rare Cisco fish (a 8-10 inch herring
type of whitefish) could be netted when they came from the deep cold waters (80-98 feet deep)
to the shallows to spawn in the third basin of James and Snow Lake.

The word would go out

that the Cisco are running and it would be a race to the hot spots. In the 60s the deep water
became oxygen depleted due to pollution and the Cisco are long gone.
Lake James also had an abundance of crayfish, dog fish with their very long dorsal fin,
salamanders (a four-legged with toes amphibian fish with gills, ten inches long with human like
skin, which evolved 340 million years ago), and Japanese (with red stripes), rubber back (with

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long pointy noses) and gray turtles. My sister Peggy loved to go turtle hunting and had an
aquarium with several baby turtles which I had to feed.
I would usually fish by myself with one exception. My best friend at the lake named Pete
Bowman had a dad called Oliver. Pete and Oliver lived in a cottage on the tip of nearby Spring
Point. Oliver loved his simple cottage and everything about the lake. Oliver seemed to take me
under his wing and taught me how to seine for bait minnows at the creek below the mill dam at
Greenfield Mills, catch large catfish at night at the old bridge between Snow and Otter lakes, and
spear four foot long gar at night from an old rowboat that Oliver had rigged with a large gas light
mounted on the bow. The gar were buried and the catfish fried and eaten after being skinned and
the center bone taken out. The trick was to skin the catfish without being speared by the long
sharp side fins. Oliver taught me to (1) grab the fish by the tail, avoid the thrashing fins, and
pound the head of the thrashing fish with a large hammer many times until the fish gave up, (2)
drive a spike through the head of the catfish into a stout board, (3) slice the skin of the fish below
the head and down the side with a very sharp knife and (4) grab the skin near the head with a pair
of pliers and pull toward the tail. I wonder if the SPCA approved of this method of food
preparation. My dear friend Oliver at age seventy-two had a heart attack in the front yard of his
cottage and died immediately. He was patiently showing an eight year old neighbor boy how to
bait a fishing hook with a minnow.
One summer afternoon when Pete, my brother and I were swimming at his cottage dock at the
end of Spring Point, a Chris Craft runabout went by towing a sixteen year old boy on a surf
board. In those days dual water skis, single slalom ski, and tubing were beyond the horizon. The
surf board was made of wood, four feet long, two and a half feet wide and fastened to the boat by
a long rope. The surf board rider would stand on the board and hang on with the aid of a rope

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tied to the front left and right of the board. As the boat passed in front of the pier we saw the surf
board hit some big wave and the boy fell off, apparently hitting his head on the board when he
fell. He was not wearing any life vest as life vests then were only used when a person was
abandoning an ocean liner. He disappeared below the water but was soon retrieved by another
boy from the Chris Craft. He was brought to Petes dock and was not moving. My brother
attempted to give mouth to mouth resuscitation but it was too late-he had drowned. This was the
first time I had seen death in real life, not the play sort of thing. I remember two dogs barking
furiously and fighting on the sand beach near the dock while the poor boy lay lifeless stretched
out on the dock. Life goes on I guess.
My mercantile genes flared up again when Oliver, who worked at General Electric in Fort
Wayne and who was a master machinist, brought to the lake one summer a large quantity of
round thin copper disks the size of a quarter which were a waste byproduct of his work. Pete and
I came up with a money making scheme to use the disks. We would make a slot machine out of
cardboard and other miscellaneous parts. We would sell five disks for a quarter and the buyer
would drop the copper disks into the slot machine, hopefully hit the jackpot, and exchange the
winnings for real money. The slot machine was designed so that a disk inserted in the top slot
would fall into a cup suspended on a pivoted bar like a steam shovel bucket. The bar and cup
were held vertical by a rubber band. When the cup had a sufficient number of disks in it, the
weight would overcome the tension of the rubber band and the coins would fall into a chute. The
chute branched into two other chutes-one so that the coins would fall into the inside of the slot
machine as the house share, and the other led to the payoff slot. It seemed like a failsafe way to
make money as everyone loved to gamble. Our casino license was revoked by my mom after

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many complaints from neighborhood parents that allowances were ending up in the hands of the
local Mafia (Pete and Ike).
Making money was always on my mind so I came up with another brilliant idea. There was
an abundance of fresh water clams of all sizes in the lake. Everyone smoked cigarettes. I
thought that I could combine these facts into a money making machine. I would manufacture
and sell cigarette ash trays. I collected various clams, cleaned them (I tried to sell the insides as
a lake delicacy but could find no takers), glued them together to make a variety of ash tray
shapes, and shellacked the finished product. The deluxe version of an ash tray consisted of a
large opened clam (both sides) face down with an open clam face up glued to the bottom clam.
Glued to the center of the top open clam there would be a closed baby clam. The deluxe version
was priced at twenty-five cents. I sold in all four ash trays. From my early experience with cats,
vegetables and chickens, I should have known better. Luckily my investment was only $1.50 for
glue and shellac. I should have used the sales technique developed later in TV commercials:
Mrs. Smith, you can buy this unique clam shell ashtray today for only fifty cents. But wait-if
you buy one within the next five minutes I will give you another one absolutely free. But theres
more-as an extra bonus, you will get a free jar of delicious Lake James clam innards.
About ten years ago, zebra mussels appeared for the first time in Lake James. They are small
invasive sharp edged striped mussels that first appeared in the Great Lakes in 1988. One female
zebra mussel can produce up to a million eggs per year of which up to fifty thousand will survive
to adulthood. They originated in the Black Sea of Russia and were carried in the ballast water of
ocean-going ships throughout the world. From the great Lakes they have spread to many lakes
and rivers in the northern part of the United States. They were carried by attaching themselves to
the hulls and live wells of sport fishing boats. As a result of this invasion, the sandy shores of

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Lake James now contain many thousands of these sharp edged zebra mussels. The zebra mussels
preyed on the fresh water mussels that were indigenous to Lake James and sadly there are now
none left in the lake-no more ashtrays.

There was plenty to do on sunny days and in the evening we played Kick the Can (you did not
want to be it). But what to do on rainy days? The kids would gather at Petes cottage, set up
the card table, play cards, board games and Battleship (sink an opponents battleships, cruisers
and submarines). The usual card games were Go Fish, Hearts and my favorite, Michigan
Rummy, also called Tripoli. I especially liked Michigan Rummy because you could win chips
on pay cards and if you went out of cards first, you won the center jackpot. Chips were one cent
apiece. The favorite board game was of course Monopoly. The paper money went from one
dollar to the enormous amount of five hundred dollars. The houses were green and the hotels
red. The rent went from two dollars at slum landlord Baltic and Mediterranean to luxurious
Boardwalk at fifty dollars. If you stayed at a hotel on Boardwalk, the rent was two thousand
dollars! Who can forget the Chance cards Go Directly to Jail. Do Not Pass Go. Do Not Collect
$200. or Your Building and Loan Matures. Collect $50. Community cards were a mixed
bag. You may be happy with You Won Second Prize in a Beauty Contest Collect $10 or be hit
with Pay Hospital Bill $100.00 (the card showed a proud father holding twins being presented
the bill by a pretty nurse for five days in the hospital). Do you remember what the seven silver
tokens were? Hint: Battleship, top hat, ladys button shoe, thimble with For a Good Girl on it,
old fashioned iron, roadster, and civil war cannon (or a purse). My original 1936 Monopoly set
was the basic edition which sold for $2.00. There were five editions in all. The most expensive
one, the De Luxe Edition, sold for $25.00 and came in a faux wood box with slide out money
tray, a thick fiberboard shiny playing board, larger houses and hotels made of Ivoroid, and large

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tokens with gold finish. The advertising flyer stated that the De Luxe Edition was A set that
will do credit to the finest living room or the most exclusive club.
Pokagon State Park had Potawatomi Inn, acres of woods, a pond, two beautiful bathing
beaches, tennis courts, elk and buffalo in a wire enclosure, the only winter toboggan slide in
Indiana, and a saddle barn with seven rather old horses. My Pokagon State Park equestrian days
were short lived. I always was afraid of horses and they knew it. I am convinced that they could
smell fear. My sister dared me to ride with her at Pokagon and I never could resist a dare. So off
we went, she on Warrior and I on Dolly, reputed to be the most docile of horses. The horses
always took the same wooded trail through the park. It was impossible to make them change
direction, increase or decrease speed. All they wanted to do was return to the barn. I had an
indication that Dolly did not like me when she kept trying to scrape me off against adjoining
trees and, about half way around, she stopped and rolled over on her back. Luckily I escaped
unharmed and walked back to the barn with Peggy and Warrior. My experience with horses
since then has been watching the Kentucky Derby on TV.
Herman and Louise Phillips lived next door to us at the lake. Herman was a former track
Olympian, a Purdue University professor and in the summer operated a very successful boys
camp in Pokagon State Park on the third basin of Lake James. In 1941 he purchased an
abandoned boys camp called Camp Manitou on the north shore of Lake Huron fifteen miles by
boat west of Whitefish Falls, Ontario. He was putting together a group of twenty twelve to
fourteen year old boys to accompany him for four weeks and reopen the camp. I was invited to
join him. I accepted, dad paid the camp fees, and off I went as a twelve year old into the wilds of
Canada. It was the most fun I ever had and started my long love of Lake Hurons North
Channel, McGregor Bay, Bay Finn, Killarney, Little Current, Manitowaning, and Manitoulin

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Island. Everything about the camp was magical-the fifteen mile canoe trip from Whitefish Falls
to the camp; the overnight canoe trip to Sturgeon Bay on La Cloche Island to fish in a secret
inland lake (Potter Lake) that appeared to never have been fished in before (except by Ojibwe
Faith Keepers Indians); the canoe trip to a north channel island to select, skin and tow back to
the camp a tall tree to use as our flag pole; the thirty-two inch northern pike I caught trolling in a
canoe; the ten mile canoe trip and three mile canoe portage to pristine Trout Lake to camp and
fish; the hike to the top of a nearby small mountain with a view from the top of the vast
Evangeline mountain range and picking wild blueberries on the way; Frank (Francois) our
camps French Canadian handy man trying to get the camps lake water pump working by
pounding on the pump with a large wrench while using language (with a French accent) that I
was not allowed to use; going to the camp store to buy candy and receive mail from home; the
quiet period in the afternoon in our cabins resting and writing letters; the trips to the outhouse
from my cabin during the night while avoiding the snakes, porcupines and bears; and the
evenings around the huge blazing fireplace in the main lodge when the counselors would tell
ghost and other stories of the wilderness. In our spare time we did some carpentry and other
work in fixing up the camp buildings, tennis courts, camp grounds and a nearby creek dam (for
which I am sure Herman gave us credit against the camp fees).
My camping days foretold of my lasting love of Canadian waters-the north shore of Lake
Huron became a part of my soul.
Grade school days had ended all too soon. It was time for some serious studies and further
adventures.
Following are photos of me and my sister, Peggy, taken in 1942 when I was thirteen and she
was seventeen.

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317

PEGGY

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CHAPTER THREE
PREPARING FOR COLLEGE 1943-1946
These years were brief but held promise of a life to come with wonder, enrichment, learning
and love.

High School
In September of 1943 I was enrolled in Cincinnati Country Day School, a small private
school for boys grades 1-12 located in the suburb of Indian Hill. It was a forty-five minute
school bus ride from my home. Teenagers rarely had cars when I was in high school and I was
no exception. I would not have a car until my junior year in college.
There were about twelve students in my classes. The classes were rigorous and included
Latin, Spanish, grammar, literature and the classics. It is rare to find a high school that teaches
Latin anymore. How can the baby boomers and their children claim to have an education if they
have not read in Latin and remember the first sentence of Julius Caesars Gallic Wars? I am
being facetious but in case you have forgotten, hint: Gallia est omnis divisa in partes tres.
When I asked my Latin teacher the usual student question, What good is it going to do me to
be able to read Latin? (or learn Calculus or pea pod genetics or the significance of E=mc2), he
responded that learning Latin was very important because it would help me understand the
derivation of English words and the meaning of words used by doctors and lawyers. Well I did
become a lawyer and it did not help me at all. There are a few Latin words and phrases that are

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used in the law but you know what they mean anyway. Speaking of Latin legal phrases, there is
one, de minimis non curat lex (the law does not concern itself with trifles) that had importance
to me in my legal scholarship. It is the basis of the following limerick:
There was once a lawyer named Rex,
Who had a very small organ of sex.
When charged with exposure,
He replied with composure,
De minimis non curat lex.
Most limericks that I knew were rather lewd and had to do with body parts and the use
thereof. Reciting a bawdy limerick showed that you were one of the boys and knew about such
things. I can think of only three that, for the most part, were more refined. Here goes:
On the chest of a barmaid at Yale
Were tattooed the prices of ale
And on her behind, for the sake of the blind
Was the same information in Braille.

There once was a maid from Madras


Who had a magnificent ass
Not rounded and pink, as youd possibly think
But gray with long ears and ate grass

There once was a young man named Enis


Who with limerick writing was genius
Wrote one thousand thirty, not one of them dirty
Til he noticed his name rhymed with penis.

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Although I knew most of the dirty and swear words, these were never used by my parents.
When I was fourteen I heard a friend of my brother say to him in my presence Lets go uptown
and screw around. When I heard the word screw being used, I was shocked. To me the word
screw was a reference to sexual activity and should not be used. The friend probably was using
the word in the generic sense and meant mess around. Now of course, the ever popular F word is
used as a substitute for all adjectives. I did not run into the prolific use of this word until I was in
the Army. It was used so much that you became numb to its use. My law partner related to me
an incident on his first leave home from the Army. He was having dinner with the family and
said to his mother, Mom, please pass the f___ing mash potatoes.

I especially remember four poems, and I can still recite parts of them upon request. We were
required to memorize these poems, why I do not know. Perhaps it was thought that memorizing
was good for your brain development. Perhaps it helped me remember the lewd limericks.
The first poem was Robert Frosts Mending Wall (Something there is that doesnt love a
wall; and Good fences make good neighbors). The second poem was Edgar Allen Poes tale of
lost love Annabel Lee (It was many and many a year ago, in a kingdom by the sea; and This
maiden she lived with no other thought than to love and be loved by me). The third, Evangeline
by Henry Wadsworth Longfellow, tells the heartbreaking story of the expelled and separated
Arcadians Gabriel and Evangeline who finally meet again at his death bed (This is the forest
primeval, The murmuring pines and the hemlocks; and Still stands the forest primeval, but far
away from its shadow, side by side, in their nameless graves, the lovers are sleeping). And who
could forget the lost Lenore in the fourth poem, Poes The Raven (Once upon a midnight dreary,
while I pondered, weak and weary; and Quoth the raven- Nevermore).

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Athletics were a big part of my high school experience. I played baseball, football and
basketball. Even though I was athletic, I did not do well in baseball. I was afraid that I would be
hit by the ball when I came to bat. If they threw me a high outside pitch I could occasionally hit
the ball for a double but other than that, I was worthless. I was put by my coach in right field so
that I did not have a chance to drop many long hit balls.
Football was my favorite. I liked anything that had to do with hitting an opponent as hard as I
could-blocking and especially tackling. I was the running back and I still remember running
back a kickoff for ninety-eight yards against Mariemont High. The cheers of the crowd still ring
in my ears. In those days the smaller schools around Cincinnati played six man football and we
were tough. We had a six and one record. We got a little cocky and accepted a challenge to play
Ohio Military Academy in eleven man football. Hastily assembling a larger team (with some
eighth graders), we gave battle but came up a little short (56-0)! I loved basketball even though
we did not win many games. Coach Speedy Swift said that losing would temper us for lifes
disappointments. I would have liked much better to win than be tempered. Basketball was very
different then. No jump shot, foul shots were with two hands underhand and no ten second rule.
At awards ceremony at the end of my junior year I was named outstanding basketball and
football player and received a small silver basketball and football pendent. I still have them.

When I was a freshman in high school I had many neighborhood friends who went to the
local public Withrow High School. They all joined a fraternity at Withrow and I followed suit.
It had a three word Greek name which I do not remember-something like Omega Gamma Tau.
The fraternity initiation was miserable-much more forbidding than my initiation into Delta Tau
Delta at Hillsdale College four years later. The high school fraternity initiation consisted, among

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other things, of rear end paddling until bloody, swallowing weird and noxious substances
(arachnids? grubs?), swallowing pills that made you pee purple for days, and being dropped off
in a dense woods about ten miles from home with no ID or money. I guess the purpose was to
prove that you were a real man at fourteen.

This and That


I personally do not remember any hardship because of WW II. Driving was restricted to a
maximum of thirty-five miles per hour and I could live with it. Dad got a ticket only once while
driving from Cincinnati to Lake James. Only one ticket was a record for him as he drove like
Barney Oldfield. There was gas rationing but dad somehow had gotten a B gas ration card
(issued for business use) which allowed him to drive back and forth from Cincinnati to the lake.
Ice cream sundaes at the Modern Store in Angola were in fact ice milk because of the shortage of
cream. All were minor inconveniences. Overshadowing all of this was, of course, the fact that
my brother George was in the Army at the front lines in northern Italy. When the front door bell
would ring, no one wanted to answer. Would there be a telegram? I do not know how my
parents handled the constant strain. I thank God that my son did not have to be in the armed
service. I dont think I could have survived.
Following is a photo of my brother, Private George Berger, US Army-1943.

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A highlight in any young mans life is of course getting his first drivers license when he
reaches sixteen. I took my drivers test while driving a car with an automatic transmission. Very
few cars then had automatic transmissions and the person testing me really did not know how to
grade me. One of the testing requirements was that the driver had to shift gears smoothly. When
we returned from the test drive, there was a lot of discussion by the officials as to what to do
about me since I had not shown proficiency in shifting. It took a call to Columbus to sort things
out. It seems that the new testing manual which did not require shifting expertise was not
officially approved yet but they would give me a waiver (whatever that was), and sent me on my
way with my drivers license. I did not let them down. I had only one accident in my entire
driving career and that was right in front of my house when I was seventeen. It seems that I was
backing down our driveway in my borrowed grandfather Bergers 1938 Packard seven
passenger, twelve cylinder, six thousand pound, one hundred and forty-four inch wheelbase
automobile when our neighbor stopped his car right at the base of our driveway to discharge a
passenger. I did not see him and you can imagine what happened to his car when hit by a six
thousand pound car.
The Packard was marvelous. It had a steering wheel about two feet in diameter, two jump
seats in the back, and, here is a secret that very few know, if you turned off the ignition key when
driving at about forty miles per hour, it would backfire twice like a two inch cherry bomb.
Another thrill was driving my Grandfather Bergers other car. It was a 1936? Reo made by the
R.E. Olds Motor Company, the predecessor of Oldsmobile. The reason that it was a thrill was
that it had a novel gear shift lever. The lever was about an inch and a half in diameter and came
straight up from the floor to seat level. The way you shifted was to push in and pull out the lever

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toward or away from the floor. The problem (and thrill) was that you never knew what gear you
were in until you let the clutch out-and then maybe wham.

When I was fourteen I had my first girl friend. Her name was Dorothy McShane. Before then
the boys would get rid of the girls by saying to them such things as, Roses are red. Violets are
blue. Monkeys like you, belong in a zoo. But now the stirrings started and it was time to have
female companionship. We would hang out, go to movies and hold hands. I showed my
commitment to her by giving her a silver bracelet with the engraving To my darling Dorothy
from Jack. About two months later the bracelet fell off her wrist. It dropped through a street
grating into a deep sewer and, like the Raven, was seen Nevermore. This must have been an
omen because we broke up shortly thereafter. We had never gone to the next level from
holding hands-we had never kissed.
I would not have another girl friend until I was sixteen. Her name was Betty. She was slim
with dark hair and eyes, attractive, and about five foot two. We dated for about two years during
my sophomore and junior years in high school. I remember just the two of us dancing in her
basement recreation room and holding her tightly. The song playing on the phonograph was our
favorite, the Mills Brothers Till Then. We hid a new 1946 penny in the small hanging overhead
ceiling lamp and promised to keep it there as our secret, till then. I never kissed Betty. It seems
strange now but at the time I held her in a kind of reverence-she was my Annabel Lee-and
kissing would have ruined the spell. After I left for college, we drifted apart and I did not see her
again. I heard much later that she had never married and had died of cancer at the age of thirtyeight. I wonder if the penny is still there in the lamp waiting for the young lovers to return.
Following is a photo of Betty which she gave me, upon which she wrote: Till Then Love
always-Betty.

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I guess I had a normal high school social life with only one caveat. My mother had a
southern lady background and required me, as an aspiring gentleman, to attempt to learn
ballroom dancing. I was duly enrolled in Madame Fedarovas dance classes which met monthly
at a grand ballroom at the Vernon Manor Hotel. There I met the daughters of Cincinnati society,
one of whom I am sure my mother intended me to someday wed. I disappointed her.
I did learn how to waltz, two-step (with a deep dip now and then), tango and do the rumba. It
would come in handy when I was seventeen and would attend the annual spring Cincinnati
cotillions (A ball at which young ladies are presented to society) in my junior year. I would
arrive at the ball with my date (Betty) in my parents 1941 four door gold Cadillac convertible
with green leather seats.
At cotillion the men (boys) were dressed in tuxedos with black or white jackets and black or
maroon cummerbunds. In the right lapel they wore a carnation boutonniere given to them by
their lady escorts. The ladies (girls) wore beautiful full length formal gowns with a corsage from
their companions pinned to their dress above their right breast or attached to the left wrist. The
corsages would be centered by roses, orchids or gardenias surrounded by babys breath
(happiness). The ladies would have dance cards and there was always a mad rush by the boys to
reserve a dance with the pretty girls. Several young ladies would be presented at each cotillion.
The dances were held in a lavish country club ballroom with two 12-14 piece orchestras playing
alternately. There would be an elaborate evening buffet and punch would be served-plain and
spiked! I did not drink in high school except for the punch at cotillion (under the supervision of
parental chaperons), an occasional Tom Collins in the afternoon at the Makatewah Country Club
pool, and a little Canadian Club rye blended whisky now and then. The reason that I drank

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Canadian Club is that someone gave a case of this booze to my dad and he did not like the taste.
He gave the case to me with appropriate instructions as to moderate use.
The balls would end just after midnight with the playing of Goodnight Sweetheart. These
were wondrous days, but are now gone with the wind.
My first introduction to Florida was over Christmas break 1944-1945. I was to be sixteen in
January. Mom had spent two months at Fort Lauderdale for several years and I was invited to
join her and dad for ten days. When my mom and dad first went to Fort Lauderdale, Jewish
people were not allowed. They had to go to Miami to be with their kind. Our name is not only
German but also Jewish and it took some verification that they were German and English
catholic to be able to make a reservation. This was the time of zealous racial discrimination.
These were the days of segregated movies, rest rooms, drinking fountains, most public
accommodations and transportation. When mom was returning by train from Florida once she
was told by the colored porter that she could not be seated in the white cars. Mortified, she had
to show that it was only a tan.
Mom and dad always stayed at the Trade Winds hotel which was right on the beach. The
only other hotel at the beach was the Lauderdale Beach Hotel. The beach was family oriented
and rather subdued because of WW II. Franklin Delano Roosevelt would die the following
spring at Warm Springs, Georgia, on April 12th, and the Japanese would not surrender until
August .
By todays standards the Trade Winds was rather small. I thought that it was a magnificent
palace with large round dining room overlooking the Atlantic and lounge with bar just up a few
steps from the lobby. Every evening I would be in the lounge (they did not check ages then and

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besides I was convinced that I looked at least twenty-five) listening to the piano player (not Sam
but Jimmy) play some of my favorite love songs, Its Been a Long Long Time (Kiss me once,
and kiss me twice, then kiss me once again) and Oh! What it Seemed to Be (It was just a
wedding in June, thats all that it was). Seventeen years later I would marry my Susanna in June.
When my dad retired, he and mom bought a condominium on the 10th floor of Birch Tower
on Fort Lauderdale beach, two blocks from the Trade Winds, where they lived for many happy
years. They are still there in the old Fort Lauderdale Cemetery at a far quiet corner under a
spreading melaleuca tree. My sister, Peggy, lies with them.
Two years ago I stopped off at Fort Lauderdale on my way to catching a Royal Caribbean
cruise with my children to the southern Caribbean. The Trade Winds still stands today nestled
between condominiums and small beach shops. The Lauderdale Beach Hotel was demolished
years ago to make way for a huge condominium. The Fort Lauderdale beach area has been
renovated (after the spring break kids were finally kicked out) and is beautiful with large brick
sidewalks and manicured beach. Strangely I felt sad, probably in remembering the happy days
of youth, gone forever. I could almost hear Jimmy playing my songs.
The summer that I was sixteen, 1945, in the month of July and just before the bombs were
dropped on Hiroshima and Nagasaki, Pete and I took off on a two week trip to Manitoulin Island
and the north shores of Lake Huron. I would at last be returning to my old Camp Manitou
stomping grounds.
Preparation for the trip consisted of buying or obtaining two rods and reels for pike and bass
fishing, a fly rod and reel for me, a tackle box with pike and bass lures, a large dip net, pup tent
(the smallest tent available that you could squeeze two adults into lying side by side), ropes, a

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two burner propane stove, matches, two sleeping bags, blankets, small pillows, lots of citronella,
a small medicine kit, a skillet, a percolator, pots and pans, a collapsible aluminum cup, two large
fishing knives, axe, soap, wash cloths and towels, peanut butter and jelly, bread, cans of soup and
various meats and vegetables. We planned on eating a lot of fish. One thing we forgot and
thanks to my mother we were saved. When I unrolled my sleeping bag the first night out, I
found inside two rolls of toilet paper and a jar of Mum that mom had tucked in. Also we would
take Petes two and a half horsepower Johnson outboard motor and a five gallon gas can. We
loaded everything into my dads 1940 Chevy with one hundred and fifty thousand miles on it,
bid farewell to apprehensive parents, and off we headed to the wild north. Our path took us
north to Michigan on US 27 through Lansing, Clare, and Indian River to Mackinaw City and the
Straights of Mackinac. The Straights separated the lower peninsula from the upper peninsula of
Michigan. The distance is five miles from shore to shore-from Mackinaw City to St. Ignace. As
of 1957 the straights have been spanned by the magnificent suspension Mackinac Bridge. We
stayed at a cabin in Mackinaw City that first night and early the next morning boarded the large
car ferry for the trip across the straights. From St Ignace we drove the forty miles north across
the upper peninsula to Sault Ste. Marie, viewed the locks connecting Lake Superior with Lake
Huron, and crossed the Saint Marys River below the locks on a small car ferry into Ontario
Canada. Customs inspection consisted of four questions. Where were you born? What is the
purpose of your trip? How long will you stay? Do you have any liquor of firearms? After a
quick peek into the car, that was it. I had now entered into a new world with strange colored
paper money, coins with the Queen on them, delightful English heritage people that said aye
all of the time, English Dairy Milk chocolate bars, and Players cigarettes. I still get a thrill when
I enter Ontario. We headed east on the Kings Highway through towns with the enchanting

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names of Bruce Mines, Thessalon, Iron Bridge, Blind River, Spanish and Espanola. At Espanola
(which had a large German prisoner of war camp) we headed south through the mountains on
winding narrow gravel roads (Pete sat on the front fender of our car to get a better view) to the
village of Whitefish Falls and the Stump and Fry emporium with variety store and cabins. We
spent our last night there in a cabin before entering the wilderness. It was a short drive to our
planned embarkation point, Birch Island Station, a small village that separated the North Channel
of Lake Huron to the west from McGregor Bay in Lake Huron to the east. Birch Island Station
had a small grocery, a primitive marina with gasoline and wooden row boats for rent, a beautiful
Catholic Church which served the mostly Indian population, and a monument that described that
Franklin Delano Roosevelt had stopped there on his way to fishing in McGregor Bay. We rented
a rowboat, secured our outboard motor to the boat, gassed up, loaded our treasures into the boat
and cast off into McGregor Bay. We had purchased a map of the area at Stump and Fry and had
decided to head east to Little Lake Nellie, a small lake within the Birch Island Indian
Reservation, and make camp. Little Lake Nellie was about eight miles away (seven miles if you
took the small cut between two islands called Dog Home Pass which had two inches of
clearance). The entire area was gorgeous-sparkling clear fresh water, bright blue sky, fluffy
white clouds, gentle breeze, islands of smooth rounded rock with clinging small pine trees, and
soaring gulls. We only saw one other boat, a canoe, on our entire trip.
On our trip to Little Lake Nellie we encountered only one small problem. The back of the
boat, the part that held the motor, kept coming loose and had to be pounded upon every hour
with our axe. Later we obtained some huge spikes and were able to better secure the back panel.
We set up camp at the far end of Little Lake Nellie and stayed there for a week. We used it as
our base camp to explore nearby waters and mountains. The pike fishing was great and we

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caught many small mouth bass at the small swift current entrance to the lake from McGregor
Bay proper. We even had a visit by canoe by a delightful fifteen year old girl, Shirley Abbott,
and her brother who lived in the summer on an island nearby. They had heard Pete and me
singing and had come to investigate. We became fast friends and visited with them and their
mom at their cottage several times. I think both Pete and I had a crush on her.
After the week we returned to Birch Island Station and turned in the boat. We drove south
over La Cloche Island and passed over the 1913 railroad swing bridge onto Manitoulin Island
and its thriving capital, Little Current. Little Current is a small town located on the northeast
shore of Manitoulin Island which was settled in 1860 and is the shopping, recreational and
boating center for northern Lake Huron.

Manitoulin Island is the largest freshwater inland lake

island in the world. The town had a Canadian Customs House, a small hotel, restaurant
(Anchor Inn), marina with town docks, drug store, grocery store, an inn overlooking the channel,
and Turners clothing store. Turners clothing store was the preferred, and only, clothing store.
It featured English blankets, cashmere sweaters, woolen suits, skirts and jackets, Irish linen
handkerchiefs and other items of clothing not found in the United States. I had enough money to
purchase a white blanket striped with red and blue which I still have. We spent the night at the
old inn at Little Current and took our first real bath. We did not shave as we wanted to show off
our beards when we returned home.
The next morning we headed south on Manitoulin Island through the village of Sheguiandah
and on to the town of Manitowaning and Manitowaning Lodge. My parents and sister Peggy had
heard so many good things about the area from me, based upon my Camp Manitou days, that
they decided to drive to Manitoulin Island and meet me at Manitowaning Lodge. It was a
remodeled beautiful rustic hunting and fishing lodge with eight cottages. Pete stayed with us at

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the lodge for two days and then drove home alone in the old Chevy. I stayed for five more days
before driving home with my parents and sister.

Following is a photograph of my lifelong best friend, Pete Bowman. He passed away in 2012.

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There were three highlights to my stay at the lodge. One was being flown in a small sea plane
with canoe strapped between the floats to a remote uninhabited mountain lake called Lake
Kakakise. I was dropped off at an island in the lake to spend the night and next day alone
exploring and fishing. I would be picked up the next day. I was told that there were a few rattle
snakes and bears in the area that I should look out for. I was reassured, however, that the bears
did not come out to the island. I was also told to tie all my food in a bag and hang the bag high
in a tree at night. I could not reconcile the no bears on the island statement with the hanging the
food in a tree statement. I spent a spooky night imagining that I heard large animals swimming
around but encountered no bears. It was a great adventure.
The second was going fishing with Art, our sixty-five year old Indian guide. Art lived in the
Indian settlement of Wikwemikong, a small peninsula just east of Manitowaning across
Manitowaning Bay. This settlement is the only unceded Indian Reservation in Canada. This
area is still a sovereign Indian state. In the early 1800s the Ottawa (Odawa) and Ojibwe Indians
claimed ownership of large portions of lower Ontario including the Lake Huron area. By a series
of treaties ending in 1836, the Indians relinquished to Canada their claims to all of this area
except Manitoulin Island.

After the mineral, agricultural and recreational opportunities of

Manitoulin Island were recognized by the white man, the Indians in 1862 entered into a new
treaty (voluntarily?) with Canada ceding all of Manitoulin Island to Canada except
Wikwemikong.
We met Art at his boat dock in Wikwemikong. He had an older eighteen foot outboard boat
with a small cabin. We motored up the east side of the peninsula to his favorite fishing spot for
small mouth bass. We used night crawlers for bait. We would throw our lines with small sinkers
out and watch the bait slowly descend through the clear blue waters toward the huge rock piles

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twenty feet below. Suddenly a bass would appear from the distant rocks, grab the bait, and the
fun would begin. The rest stop was a very old nearby cabin that Art had built many years ago.
The amenities consisted of a one hole outhouse arrived at by a small path in the woods with
unknown animals lurking nearby I am sure. The facilities had not been used for awhile as the
toilet opening was completely covered with spider webs and there was no toilet paper.
The third and most important highlight of my stay at the lodge was Alice Jamison. She was a
pretty and petit seventeen year old girl from Sudbury who was spending the summer at the lodge
as a waitress. We spent every evening together under the brilliant stars just talking and holding
hands. She was delightful and I immediately succumbed to her charms-as only a sixteen year old
boy could. Soon we had to part but we promised to write and see each other again next year.
We never did. I think of her now as she was at seventeen and sentimentally recall the song

Under Blue Canadian Skies.


I have a story to unfold
It happened way up north in days of old
I lost my way and found a heart of gold
Under blue Canadian skies.
Her lips were sweeter than the wine
Her hair was fragrant as the northern pine
And suddenly I knew that love was mine
Under blue Canadian skies.

With a sad heart we headed for home south on Manitoulin Island to the ferry landing at South
Baymouth to catch the new SS Norisle, a two hundred and fourteen foot steam powered

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passenger and car ferry, for a trip across the Georgian Bay Main Channel to Tobermory on the
northern tip of the Bruce Peninsula. The ship could carry two hundred passengers and fifty cars.
The trip was about thirty miles and took about three and a half hours. It could be a very rough
passage with huge waves created by an unobstructed two hundred and fifty miles of Lake Huron
from Mackinaw City, Michigan. The SS Norisle was replaced in 1974 by the M.S. ChiCheemaun (Big Canoe) which is the largest car ferry on the great lakes. It is three hundred and
sixty-five feet long, can carry six hundred and thirty-eight passengers, one hundred forty-three
cars, and can make the trip in under two hours. It is an exciting ship which I have taken many
times.
We stayed in Tobermory at a rustic motel for our last night in Canada. The trip home took us
along the east side of Lake Huron through such picturesque Canadian towns as Port Elgin,
Kincardine and the resort town of Goderich, and onward to Sarnia and the Blue Water Bridge to
Port Huron, Michigan, and home. I would return to Manitoulin Island, the North Channel and
McGregor Bay many times. All visits would be wonderful, but not quite like the excitement of
the first time.
In the summer of 1946, after my junior year at Country Day, I spent two weeks with my
parents and sister at The Breakers in Spring Lake, New Jersey, a large late 1800s Victorian
summer hotel on the Atlantic beach. I was seventeen and a man. All I can remember from this
vacation was staying up late at the hotel bar and going deep sea fishing. I spent the entire boat
trip in the cabin with sea sickness. The reason we were at Spring Lake was to rest up for my
brothers impending wedding in New Haven, Connecticut.

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My brother was twenty three and had just received a medical discharge from the Army after
being wounded near the Arno River in Italy while serving in the U.S. Fifth Army under General
Mark Clark in the second war to end all wars. My brother was about to marry his sweetheart
Elizabeth Mary Graves (Deeda), a delightful young lady from a traditional Yale family. It was a
wonderful wedding and the beginning of a loving life together. As we parted I am glad we could
not see into the future. George would lose his darling Deeda to ovarian cancer when she was
fifty-eight.
Following is a photo of George and Deeda at their wedding.

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I first met Deeda at our cottage at Lake James the year before she married George, when she
came to visit one summer when I was sixteen. George was still in the Army recuperating from
his injuries. She smoked cigarettes of course-everyone did-and she thought that it was about
time that I learned. She introduced me to Spuds cigarettes (fifteen cents a pack), the original
mentholated cigarettes. I liked them because I did not gag as much on the mentholated ones and
because they had nifty cork tips. It was not until seventeen years later that I quit. No more
coffin nails.

John Patrick Gilmore II


Writing about my brother George brings back remembrance of another brother of mineJohn Patrick Gilmore II. Although Pat was not related to me by birth, he was related by love.
Pat first showed up at our cottage door at Lake James one early June when I was about ten.
He was spending the summer at the lake with an aunt and uncle who had a nearby cottage. He
was sixteen, my brothers age, and said he wanted to meet my family, although I suspect my
fourteen year old developing sister, Peggy, had something to do with it. I learned later that Pats
parents were not particularly interested in him and he had spent most of his early years with his
aunt and uncle. That summer, and each summer thereafter until he went into the service, he
basically lived with us at the lake. Pat and I became very close and he was treated as a member
of our family. When my brother George was off somewhere doing what teenagers do, it was Pat,
who was six years older than I, who always seemed mature and sensible, and in whom I would
confide. He seemed to understand my imagined problems and would always have comforting
advice.
World War II brought an abrupt hiatus in our relationship as Pat volunteered for the Army Air
Force. He was a pilot and flew many missions from England over France and Germany in his B-

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17 Flying Fortress, the workhorse four engine heavy bomber. B-17 losses were staggering but
somehow he and most of his crew members survived even after being hit often by flak. When he
returned from war, he gave me a piece of flak that he had dug out of his plane. I still have this
piece of jagged metal which I often hold and think of all of those young men who sacrificed so
much for all of us.

FIRST LIEUTENANT JOHN PATRICK GILMORE II

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After Pats Army discharge, he returned to Tanglewood, our home in Indiana, as part of our
family. He attended the local Tri-State University for one year but could not seem to stay
focused on his studies. He was still the captain of his B-17 and of his men, protecting them from
the horrors of war. His dreams of becoming a physician like his uncle seemed to fade away. He
was truly a casualty of the war-a kind and gentle person who was thrust into responsibilities and
actions beyond his years.
Pat dropped out of college, moved to Fort Wayne, and obtained employment as a car
salesman. A year later, he moved to Milwaukee. I was in college then and I thoughtlessly did
not ask my parents why Pat moved and what he would be doing. After his move, we never heard
from Pat again-I do not know why. As I reflect upon all of this, I experience a profound sadness.
I wish that I had done something to find and contact him. Perhaps I could have helped him and
tried to repay all that he did for me as a young man, and all that he did for our country.
Pat, wherever you are, I send my love and wish you well.

Off to College

After my junior year in high school, the WWII draft was still in full swing. I was seventeen.
In order to attend college before being drafted, I enrolled after my junior year in high school at
Hillsdale College, a small liberal arts college in Hillsdale, Michigan, under a wartime early
enrollment program. I skipped my senior year of high school so technically I am not a high
school graduate.

In early September of 1946 at the age of seventeen I was dropped off at the Sanderson House,
an old Hillsdale hotel which had recently been converted into a rooming house. It was to be my

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home for my first year of college. The regular Hillsdale dorms were full with the return to
school of many servicemen under the GI Bill and the Sanderson House was used for the
overflow. My college career was about to begin.

This is a photo of me when I entered Hillsdale in 1946-age 17.

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CHAPTER FOUR
Higher Education 1946-1953

During my college years I attended Hillsdale College for four years and Harvard Law School
for three years.

Hillsdale College 1946-1950


Hillsdale College of Hillsdale, Michigan, was founded in 1844, and is a small coeducational
non-denominational private college. When I entered Hillsdale in the fall of 1946, even with the
influx of returning veterans, the enrollment was about five hundred. Enrollment is held to one
thousand today.
My brother was attending Hillsdale College and lived in a small rental home with his wife
Deeda. My sister was also attending Hillsdale. Since I could attend Hillsdale with only three
years of high school, and since my brother and sister were instructed to look after me, Hillsdale
was the logical choice for me to go to college. It was a great choice.

At orientation I had to choose a major. I did not have the slightest idea what career to follow
or for that matter, I really did not know one career from another. All I knew was that I was
expected to get a college degree. It turned out to be an easy decision. At orientation I was told if
I majored in physics that I would be deferred from the draft. A year ago on August 6, 1945, the
world started the atomic age with the bombing of Hiroshima and Nagasaki. The atom and its
potential energy opened a huge new field of science and I was told the United States wanted me

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to help-not as a soldier but as a physicist. Four years later I would be graduated with a Bachelor
of Science degree in Physics.
My parents had moved permanently from Cincinnati to Jimmerson Lake near Angola,
Indiana, in the fall of 1946 and built a home on ten acres overlooking the lake which they had
named Tanglewood.
This is a photo of me with my parents, John and Margaret Berger and Jezabelle at Tanglewood in
1952.

Jimmerson Lake connects to Lake James by a short channel and is about thirty-five miles
south of Hillsdale by back roads. Since I did not have a car in my freshman year I had to
improvise to get home from college for holidays and over a few weekends. I had an old bicycle

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which I rigged with a Sears bicycle gas motor. I jazzed the motor up so that the bike would do
forty-two miles per hour and I could make it one way in about forty-five minutes, weather, dogs
and cows permitting. The main problem was that the motor was situated between my legs and it
became very hot. I could almost feel the hair on my legs burning. Also I would reek of gasoline
until I changed clothes. A secondary problem was that the motor was so powerful and the
spokes were so thin and old, that after about three round trips the back wheel spokes all ripped
out. My folks felt sorry for me and bought a used Cushman Road King scooter for me. A week
after the purchase I was showing off my new vehicle and headed to Lake Baw Beese with my
roommate as a passenger. The scooter was designed for one passenger and as a result, it was
hard for the driver to reach the shift lever with a passenger aboard. Consequently, when I yelled
shift my passenger was to shift. On the approach to the lake at maximum speed I hit some soft
sand and the scooter began to slide sideways. I said shit and my passenger, considering the
noise of the motor and all, thought I said shift and being a good co-pilot, down shifted to the
lowest gear. Disaster struck and the entire transmission blew out. I would not have another
vehicle until the spring of my junior year.
There were three fraternities and three sororities at Hillsdale. About half of the students
belonged to a Greek organization. The fraternities were Delta Tau Delta, Alpha Tau Omega and
Sigma Chi. My brother was a Delt. The sororities were Kappa Kappa Gamma, Pi Beta Phi and
Chi Omega. My sister was a Pi Phi. Rushing for fraternities started when school started and I,
as a Delt legacy, was pledged as a Delt. Hell week was not too bad. My high school fraternity
initiation was much tougher. At the Delt initiation the paddling was more symbolic and we were
not dropped off very far from town. Before initiation we had to know the names of the four
founding fathers of DTD and recite the Greek alphabet in five seconds. Knowing the Greek

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alphabet came in handy when years later at homecoming the old grads would challenge each
other to see who could still remember it. One tradition however had the potential for great pride
or embarrassment. At the beginning of hell week the pledges were all measured (I am sure you
know what was measured) and the pledge with the smallest one was designated the water boy.
He had to carry a water bucket all week around campus. The pledge with the longest one was
designated the fire chief and he wore a firemans hat all week. I did not win either award. Years
later when I went to homecoming the water boy was in attendance with wife and four children.
Music was very much a part of fraternity life. Fraternity songs such as Youre My Honey and

Now For Old Delta were sung by the men of Delta in the evening below the dorm window of a
young lady who had just been pinned (receiving a Delt pin from a Delt as an emblem of his
enduring love). There was a special Delt song for each of the three sororities which was sung at
the serenade. I can still see the gathered men of Delta with candlelight singing in harmony, and
the smiling girl in her window silhouetted against the soft bedroom light.
Weekend evenings were the time for couples to gather around a bonfire either on the big hill
at the back of the Arboretum or at the shore of Lake Baw Beese. There would be singing, some
drinking of beer or weird vodka or gin drinks with names like Purple BeJesus, and late quiet time
(beneath a blanket?).
Drinking songs were popular. One, or a variation thereof, that was probably universal was:
Heres to (the drinkee), hes true blue
Hes a drunkard through and through
So set him up a tankard, celebrate the day
Tried to go to heaven, but he went the other way.
So drink chug a lug, chug a lug (etc. until the beer bottle is empty)

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Another test of memory and acuity when drinking was to play One Hen-Two Ducks. To
play, assemble four or more players in a circle and have them repeat after the leader in turn
clockwise one word, then two words, then three words, then on for ten words or groups of words
until the finish. If you could not repeat the words properly you had to take a big drink of beer.
You had to try again in the next round. It was tough to get past the fourth group of words and
with each mistake and drink memory faded more. Gather some friends and a case of beer and try
this out:
One hen
One hen, two ducks
One hen, two ducks, three cackling geese
One hen, two ducks, three cackling geese, four limerick oysters
(Then in turn add)
Five corpulent porpoises
Six pairs of Don Alversos favorite tweezers
Seven thousand Macedonians clad in full battle array
Eight brass monkeys from the ancient, sacred, secret crypts of Egypt
Nine apathetic, sympathetic, diabetic old men with canes
Ten lyrical, spherical heliotropes from the Helio Menethia.

The Delt house was an old converted home with four floors and a basement adjoining the
small campus. On the first floor were a large living room with piano and small black and white
TV, the dining room, and back living quarters for our house mother, Murr. The second and third
floors held the bedrooms, group bathrooms and card room (pinochle). On the very top, under the
sloping roof, was the poop deck where I lived my sophomore year. It consisted of two small
rooms with two beds each and a long rope curled up near the window which was to be used in
case of fire. The basement held the sacred Delt meeting room-all in black. I hope that divulging

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the color of the sacred meeting room is not in violation of my sworn secrecy promises, but I
dont remember now all that I had sworn to. One I do remember-the secret code name that
would be whispered to identify a brother Delt. It is ****.
The living room was the venue for our annual Delt parties such as the Bowery Brawl. We
would all dress like we thought raucous people did in the olden days at the Bowery in lower
Manhattan. I do not know why, but we also piled bales of hay around the room. We had quite a
few musically talented brothers and we presented several skits with duet singing, trombone
playing, and comical repartee. I was even in one skit and played the song Memories on the
piano.
The living room was also where the brothers gathered to watch television. We were the first
fraternity to have television, black and white of course, and we welcomed everyone to watch.
Programming was very limited and most of the programs consisted of boxing matches and
comedians, such as Mory Amsterdam, doing standup comedy or skits.
In June of my junior year three brother Delts and I decided to represent our Kappa Chapter of
Delta Tau Delta at the annual three day conference to be held at French Lick in southern Indiana.
The conference was at the French Lick Springs Hotel, a large Victorian hotel with old world
charm and grandeur built in 1845. It attracted guests from around the world to bathe in and
experience the miracle waters at nearby sulfur springs which emitted a constant strong smell of
sulfur. The miracle waters were bottled and called Pluto Water. Eager patrons would drink it as
a laxative. It was guaranteed to be effective within one hour. The slogan was When Nature
Wont, PLUTO Will.
The hotel did not have a casino in those days (they did have four slot machines in the lobby)
and since soaking for hours in a hot sulfur spring had lost its charm, there were few guests other

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than the Delts. The only excitement was diving from the toilet seat into the overflowing large
and very deep room bathtubs. After a day of smelling the Pluto Water everywhere and diving,
we decided to abandon the conference and head for Louisville, Kentucky. I had been through
Kentucky on a train (the City of Miami, a seven-car coach, Pullman sleeper, and lounge car train
from Chicago to Miami) and flown over it in a four prop engine Lockheed Constellation
Connie distinguished by its triple tail design, but I had never explored the mysteries of
Louisville. There were two old and distinguished hotels in Louisville. One was the beaux arts
baroque Seelbach which opened in 1905 and is now a Hilton. It billed itself as the only
fireproof hotel in the city. The other is the Brown which opened in 1923 and sadly closed in
1971. We decided to stay in the newer Brown. Upon arrival we checked into a huge room and
then explored the downtown. That evening after too many rum drinks in our room, my Hillsdale
roommate who had been a Marine suggested that we have some late evening entertainment. At
his request, and with my deep apprehension, we each divvied up fifteen bucks ($60.00 total) and
he left to find the bell boy. The bell boy turned out to be very amenable. Yes, he could arrange
for a suitable young lady to join us in our room for fifty dollars-twenty-five dollars now and
twenty-five dollars upon satisfactory completion of the assignation. The down payment was
paid, the ex marine returned to our room, and we anxiously awaited our guest. There was much
speculation by the awaitees. Would she be white or black? We decided that we did not care.
Who would go first and what would the rotation be? No problem there. We only had one rubber
and all of us but the Marine chickened out anyway. I knew the basics about sexual intercourse
but I was not about to put it to the test. As time went on with no knock on the door, we finally
realized that we had been had. The Marine gave us our partial refund and we called it a day. It
was a great Delt convention.

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From such an inauspicious venture you would not expect the four of us to ever amount to
anything-I became a judge, another brother became a recognized orthodontist, another a chemist
who founded a large automobile paint company, and our hero ex Marine joined the CIA, was
stationed all over the world, and completed many difficult assignments (which he would never
tell me about).
I dated several girls at Hillsdale during my freshman year but after I met Rosemarie in my
sophomore year, I knew she was my girl. She was a year behind me, very cute, smart, and a joy
to be with. We would meet and talk at the local hangout campus restaurant (with two great pin
ball machines), and attend hill, beach (Bawbees Lake) and fraternity parties.
wonderful time together.

We had a

We never really seriously discussed our future together-she had

another year of college and I was going off to law school for three years and then the Army. I
saw Rosemarie several times after my graduation but time and separation took its toll. I look
back today and realize that my time with Rosemarie was among the best times of my life.
In the spring of my junior year I was involved in a car accident. My roommate was driving
his car and I and another friend were in the front seat. No seatbelts then of course. We were
returning from a trip to Jonesville and as we approached Hillsdale and rounded a bend, the car
went off the road, down an incline and rolled over on its top. Luckily we were not going fast. I
remember being upside down with my hands in the air touching the ceiling of the car. I could
feel the top of the car crunching toward me. It stopped just in time and none of us were hurt-just
scared. When I told my parents about the accident they asked me to come home with them the
following weekend. Im glad I did because dad bought me my first car, a 1946 dark blue Ford.
They said that they did not want me to be a passenger with anyone ever again. So alls well that
ends well.

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Graduation in June of 1950 came all too quickly. Somehow I had carved out enough time
from my various social activities to complete my courses with an A average. The downside of
this was that I was Valedictorian and had to give the valedictory speech before the assembled
students and faculty at the old Baptist Church. I was very nervous about the whole deal and
spent weeks writing, rewriting and rehearsing my speech.

Almost like the ancient Greek

Demosthenes, I even once practiced my speech near a rushing creek (but without the pebbles in
my mouth). My speech emphasized how well we seventeen and eighteen year old students upon
entering Hillsdale had integrated with the predominantly mature returning veterans of WW II. I
used the phrase We melded our seeming disparateness. I worked long and hard coming up
with these five words. (See Endnote 1 for the complete valedictory)

Following is my graduation photo and also a photo of me with Rosemarie and my sister, Peggy.

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Upon graduation, I received the University of Michigan Horace Rackham Graduate School
of Science scholarship for two years of graduate study in physics. The scholarship was tempting
but prompted by excellent courses in constitutional history and business law at Hillsdale College,
I decided to become a lawyer. I did not accept the scholarship to the great surprise and joy of the
alternate, and to the chagrin of my father who would now have to pay tuition, room and board.

Summer of 1950
Two events stand out in my memory of the summer of 1950. One was bad and the other
great.
After graduation at Hillsdale, I packed up (jammed in my car) all of my belongings, including
clothing, and headed for home at Tanglewood. On the way I stopped at Bledsoes Beach at Lake
James to check on the Toledo sorority girls who rented cottages every year in early June. The
checkees were a lively bunch and I managed to productively spend the early evening. When I
returned to my car, my car door was jimmied and all of my clothes were gone. The culprits were
never identified but my cashmere sweaters (wet and torn) turned up in a nearby field two weeks
later. I guess cashmere sweaters were not in style in the robbers social group.
In early June, three girls from Fort Wayne had rented a cottage near Bledsoes Beach for a
week. Pete had known them from high school days. Pete and I (attired in all new clothes of
course) dropped by one evening for him to say hello and for me to meet one of the girls whom
Pete thought I would like. He was right.
Her name was Irene, and she had just finished her last year of college as I had. We spent most
of that week with each other and for the rest of the summer either I drove to Fort Wayne or she

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drove to Lake James about once a week so that we could be with each other. We had a
wonderful time with each other. In the last week of August, just before I was heading off to law
school, we agreed to meet at Lake James and then drive together to Marshall, Michigan, to have
dinner at Shulers Restaurant, a famous restaurant since 1924. It would be a nice way to end the
summer and perhaps talk about our future.
We never made it to Shulers. When we met at Lake James, Irene told me that, before she
had met me, she had been dating since high school a man who was now in the Army. Before he
left for the service, she had promised to marry him. She said that she felt that she must honor her
commitment and that she did not trust herself to see me again. She smiled sweetly, kissed me on
the cheek, and left. I wiped the lipstick from my cheek with my handkerchief. I kept the
handkerchief with the lipstick imprint for many years.

Harvard Law School 1950-1953


I applied to only one law school, Harvard Law School. As part of my application I had to go
to Lansing, Michigan, and take a six hour test similar to the current LSAT test. I do not know
how well I did on the test but I was accepted and directed to report for the first of three years of
law school the first week of September, 1950. With some trepidation, at the age of twenty-one, I
packed my bags and headed east on US Highway 20 in my new bright red 1950 Ford convertible
(a graduation present from my parents) toward Cambridge, Massachusetts, and to the unknown.
Law school consisted of three years of concentrated studies including the core courses of
criminal law, torts, contracts, property law, domestic relations, commercial transactions, civil
law and procedure, administrative law, constitutional law, taxation and jurisprudence. The 19501951 first year law class consisted of about five hundred students including for the first time

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twelve women. Classes were held six days a week. Classes were divided into four sections of
125 students. Each section attended class together in 150 seat stadium type classrooms. This
was a new experience for me as I had twelve students in each class at Cincinnati Country Day
School and usually twenty at Hillsdale College. The courses were very challenging and the
instructors demanding. We were even given course books to study over the summer break and
we were tested the first day back at school in September.
Each course lasted a school year and examinations were given in each course in early June.
There was only one four hour examination each year and no other tests, quizzes or written
assignments were given. You sank or swam depending on this one examination. As you can
imagine, the pressure was intense as the students prepared for exams. There was an old story
going around that a freshman should look carefully at the persons sitting on his/her left and right
in class because next year one of you will not be here.
Examination grading was based on a possible one hundred maximum points. Seventy-five
points or better was an A, seventy to seventy-four points was a B, sixty-five to sixty-nine points
was a C, sixty to sixty-four points was a D, and below was an F. The highest average in my
graduating class was seventy-seven! I came in at a resounding seventy-one point three GPA
(low B).
Evidence was my hardest class partly because the subject was very difficult with many
admissibility of evidence rules to which there were many exceptions. But what sunk me on the
evidence final exam was the method by which the exam questions were phrased. The professor
was very clever in posing the questions and I just could not figure out what some of the questions
were. Since I did not understand the questions, how could I answer them? I received my lowest
grade, sixty-five. I had a question on a Spanish examination at Hillsdale which was just like the

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evidence questions, and which I could not figure out and answer. The question was: What item
of clothing is a man wearing if he is wearing Eso Si Que Es? The answer, if you pronounce the
Spanish correctly, is SOCKS.
There was little time for social life in law school. I did join the Harvard Law School Forum
which presented renowned speakers once a month. My main function was to tend bar during the
receptions after the presentations. Thus I was able to meet many famous writers, entertainers,
statesmen and even a cartoonist (Al Capp of Lil Abner and Daisy Mae fame).
I also managed to squeeze in a girl friend, Hia. She lived in a suburb of Boston, and attended
a girls school adjacent to the law school. She was dark haired, slim, had very high cheekbones
and an attractive face. She was gentle and kind. I dated her during my last two years of law
school and we became quite attached to each other. However, I was not thinking of commitment
or marriage but rather the two or three years of military service ahead and starting a law practice.
Also, I was broke. Hia was my wonderful tour guide and she introduced me to such places as the
1873 Boston Lighthouse, Bunker Hill, Lexington, the bridge at Concord with imagined
Minutemen at the far hill (the shot heard round the world), Faneuil Hall in downtown Boston
(never dreaming that one day I would be a judge presiding in a courthouse that was an exact
replica), and Walden Pond. One sunny afternoon in late fall, Hia and I spread a blanket and
drank a small bottle of wine near Walden Pond amidst the woodland where Henry David
Thoreau had lived in his small cabin in 1852 and written Walden-Life in the Woods. It was a
moving experience to share, if just for a moment, Thoreaus thoughts, lake and woods.
Hia and I did not see or hear from each other until eighteen years after I was graduated. She
and her husband were traveling from Boston to Chicago to watch their daughter participate in a
triathlon and, after checking the phone book and calling, stopped by to visit with me and my wife

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Susanna. We had a good visit, she appeared to have married a wonderful guy and they seemed
very happy. It was sort of a closure for me for a youthful love. I was glad for her-she deserved a
good marriage and children. Susanna was very nice about the whole visit, gracious as always,
but I suspect not completely thrilled by a visit from an old girlfriend.

This is a photo of Hia and me relaxing after a hard day of law classes at Harvard Law School.

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After three years of rigorous study and having successfully passed my final examinations, I
was graduated from Harvard Law School with a Doctor of Jurisprudence (JD) degree in June of
1953. Actually I did not receive a JD degree but rather an LLB (Bachelor of Laws) degree. In
1953 Harvard followed a long tradition of only awarding a bachelors degree even though the
LLB degree required three years of study after a previous bachelors degree. Harvard in 1969
decided to grant the JD degree instead of the LLB degree and it was made retroactive. I was
reminded of this recently when going through some old files and found a mailing tube
postmarked 1969.

Inside was my spanking new diploma in Latin stating that Johannem

Robertum Berger was awarded the Juris Doctor Degree.


Even though the new diploma was sent to me in 1969, the mailing tube has on it three 20 cent
1967 stamps with the picture of George C. Marshall and the words George C. MarshallStatesman-Soldier. Marshall as Secretary of State (1947-1949) was the author and implemented
the very successful Marshall Plan (1948-1952) to rebuild Europes economy after WWII.
Germany even issued a stamp in his honor in 1960.
My formal studies were over. I would return to Angola and prepare for the Indiana Bar
Examination and Korea?

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CHAPTER FIVE
After School 1953-1955

After graduation from law school I had to complete the requirements to practice law and
fulfill my military obligations to my country. I had been deferred from the draft and it was time
to pay the piper.

Admission to the Bar


During July of 1953, I took a five day bar review course in Indianapolis and in August took
the two day Indiana bar examination. After an anxious wait, I received word that I had passed
the examination. In November I was admitted before the Indiana Supreme Court and Federal
District Court to the Indiana and Federal bar. I could now hang out my shingle-but when and
where?

Private Berger
The when I could practice law question was answered by a Greetings letter from Ms.
Wingerberg, Clerk of my Cincinnati draft board, which informed me that I should report for
induction into the United States Army on December 14, 1953.

Although an armistice had been

signed at Panmunjom on July 27, 1953 which was supposed to end the fighting in Korea, the war
could have started up again at any time and the Army needed a constant stream of new recruits to
be prepared. The armistice still stands. However, because South Korea never has agreed to the
armistice, South Korea and North Korea are still technically at war and the armistice commission
still meets periodically at Panmunjom.

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On a dark and wet December 14, 1953, morning at 5 a.m., I boarded a bus in Angola with ten
other draftees, all from local farm families, destination Indianapolis. Upon arrival we, together
with forty other draftees, were told to strip and get in line to be examined by a doctor. The
doctors determined that we were all physically fit even though I kept reminding the doctors that I
had rheumatic fever as a child.
We then were told to stand in a straight line facing an Army Lieutenant and to raise our right
hands. We did so and took our oath to protect and defend. We were told to take one step
forward and I, at the age of twenty-four, officially became a part of the United States Army. I
was a Private, the very lowest classification for a soldier. The next step up if I were lucky would
be to Private First Class.
It is hard to describe my emotions upon taking the oath and being a member of the Army. I
do remember being very proud to serve my country and to begin such service as a private equally
with my fellow draftees from all walks of life. I was always very proud to wear my Army
uniform even though during the Korean Conflict some civilians looked down upon me as a
serviceman.
After being sworn in, we boarded a bus for Fort Leonard Wood, an older camp in the Ozarks
of Missouri, not far from Rollo. The camp was named for General Leonard Wood who served
our country honorably in many important capacities including, on July 1, 1898, leading a brigade
to victory at San Juan Heights (with his friend Teddy). The camp had the typical Army barracks,
each with a front non commissioned officers quarters, double bunks in a long row on each side,
and a community bathroom with sinks, a shower area with multiple shower heads, and a long
row of toilets. There were no partitions in the bathroom. Imagine sitting on a toilet side by side
with twelve other soldiers and relaxing.

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The barracks were heated by large pot bellied stoves fueled by the soft coal mined in the area.
The smoke had a distinctive smell and seemed to always float over the camp. For many years
after my military service, if I would get a whiff of soft coal smoke, it would instantly bring back
to me a memory of the fright and apprehension that I constantly had during my weeks at Fort
Leonard Wood.
On my arrival at Fort Leonard Wood at one a.m. dressed in a gray tweed suit and striped tie, I
was told to report immediately to the mess hall for KP duty. My first military duties consisted of
mopping the floors and washing dishes, pots and pans until three p.m. I had been up since three
a.m. the previous day. I then reported to my assigned barracks and was issued bedding, a trunk
to be placed at the foot of my bunk, an M1 rifle, and basic toiletries which included a blade razor
(I had only used an electric shaver before).
My only experience with a rifle was as an eight year old. I had a Red Ryder BB gun and shot
a starling. The bird tumbled to the ground and flopped around. Apparently I had broken his
wing. Immediately I felt terrible and tried to nurse him back to good health. With my gentle
care he lasted three days. I buried him with a headstone marked Sam. This was the last and
only time that I shot a rifle without cause.
Exhausted and dirty, in my gray tweed suit, my service to my country began. I was issued a
uniform three days later.
Among the new recruits arriving at Fort Leonard Wood were twenty young men from
Chicago. They were a tough looking lot and were reluctant to follow the strict rules and
discipline being imposed by our supervising Corporal Roginski. Two mornings later Corporal
Roginski was found dead in a nearby ditch behind our barracks. He had multiple deep knife
wounds. The perpetrator(s) were never found but I had my suspicions.

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Basic training at Fort Leonard Wood consisted of eight weeks of general training and another
eight weeks of specialized training. The first eight weeks consisted mostly in teaching me how
to kill the enemy (at that time the enemy was North Korean or Chinese, all yellow skinned) with
my rifle, machine gun, bayonet or bazooka. Great care was taken to instruct me as to the best
place to insert my bayonet. There was very little sleep allowed and I was always exhausted. We
were always marching somewhere in the mountains with rifle and one hundred pound (it
seemed) knapsack. The ranges were always many miles from base. In between marches, if we
were not in the kitchen, we attended classes to learn, among other things, map reading, how to
strip and clean our rifle, night fighting, and the horrors of gonorrhea and syphilis (with graphic
movie). There were many overnight trips with pup tent and K rations. The trainers did their job.
It is hard to imagine now, but it took only eight weeks to change me from a basically nave,
gentle and caring young man into a hardened soldier capable of and willing to kill.
Eleven days after arriving at Fort Leonard Wood, it was Christmas Day and all recruits were
allowed a three day pass to go home. I boarded a bus at ten p.m. on Christmas eve bound for
Fort Wayne, Indiana, which was only forty miles south of home. I arrived at the Greyhound
station at seven a.m. Christmas morning in my ill fitting Army uniform and waited for a bus to
Angola. I must have looked tired, lonely and forlorn at the station as a lady of the night
approached me and offered to take me someplace where I could have rest and relaxation for a
very reasonable sum. I respectfully declined. Maybe later but not when Baby Jesus had just
been born.
My parents did not know that I was coming home to Tanglewood for Christmas. There was
great joy and some tears all around. My sister Peggy was there to greet me. She just about fell
apart when she saw me in my shaggy uniform. We had recently been through a lot together. She

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had been with my parents since July when she came home seven months pregnant when her
husband left her. That summer Peggy and I had shared an apartment attached to our garage. It
was almost like being an expectant father. I was with her when her darling Melissa was born in
Elmhurst Hospital in Angola on September 12, 1953. (See Endnote2)
After three days spent mostly sleeping, I very reluctantly returned to the Ozarks.
In the fourth week of basic training I was called in from the machine gun range for an
interview pursuant to my previous application to the Army Judge Advocates Office (the law
branch of the Army). In my dirty uniform and with four hours sleep I was grilled on the
intricacies of law by a panel of one Captain and two First Lieutenants. I distinctly remember one
question. I was asked to explain in detail the hearsay rule and as many of the exceptions
thereto as I could recall (there are thirty). This is probably one of the most difficult legal
principals.

The hearsay rule is an evidentiary trial rule on the admissibility of certain

testimony. The rule can be simply stated as, A witness can not testify as to what he heard
another person say in order to prove the truth of the facts stated by such person. Somehow I
stumbled through the interview.
I did not hear anything concerning my application until about twenty-two months later when I
was called in before my commanding officer.

He explained to me that I had passed the

examination and had been recommended for acceptance into the Judge Advocates Office.
However, the examining board had been improperly constituted. The board should have had two
Captains instead of the one at the board examination. Therefore I would have to be examined
again. He assured me that I would undoubtedly pass the next examination and be appointed a
First Lieutenant. I would have to serve three more years of active duty in the Army. Since I was
due to be discharged in two months, I respectfully withdrew my application.

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Four weeks into basic we were given another three day pass. A friend of mine from Angola
who had ended up in my barracks and I headed to Rolla located on U.S. Route 66 not far from
camp. It was the largest town around, population twelve thousand, that had a hotel, such as it
was. The notable thing about the hotel was that it had wonderful deep bathtubs. All I did that
weekend was take a long soak in hot water to try and shake the constant cold of the Ozarks in
winter, sleep, and maybe find a good hot meal. Life had come down to basics-no entertainment,
no great thoughts, no plans for the future. All I was trying to do was survive.
At the end of the first eight weeks of basic, we were all given a two week leave. Before I left
on leave I was assigned to return the Fort Leonard Wood for advance training as a Field
Engineer. The field engineers build bridges in advance of the foot soldiers-not a great vocation.
The Army decided on this specialty for me maybe because of my college degree in physics but
more likely because they had a field engineer roster to fill out. I was not going to design bridges,
just build them. My law degree did not factor in the assignment as we were not suing the enemy.
I spent my leave with my parents at Crystal River, Florida. They had stopped off at Crystal
River on their way to southern Florida. They became so captivated with the sleepy fishing river
town and the quiet charm of the central west coast of Florida that they stayed at Crystal River for
two months at the same small family motel nestled at the headwaters of Crystal River. They
never made it to southern Florida.
I fell in love with Crystal River. It was a life saver for me as I felt deeply the toxic effects of
basic training. I did not want ever to be the person I was turning into. The two weeks of balmy
winter air, the soothing quiet evenings with nightingales singing, the bubbling springs of Crystal
River attended by friendly manatee, the fishing for redfish among the gulf front mangrove

364

islands with my faithful and wise guide R.J., all clasped in the tender love of my parents, became
my deliverance. I became whole again and could face the future.

Following is a photo of my friend and guide, R.J. and of me with a huge redfish that I caught at
the mangrove islands at the outlet of Crystal River.

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Upon my return to Fort Leonard Wood I learned that I would not become a field engineer, but
rather I should report immediately to Fort Monmouth, New Jersey, for sixteen weeks of school to
be trained as a field radio repairman (MOS 1063). Fort Monmouth was near the north Jersey
Atlantic coast and Asbury Park, a sort of northern Atlantic City. I happily reported for duty and
began my sixteen week electronics course. At last my physics training would be utilized. I was
not too sure about the field part of field radio repairman. Did field mean fighting field?
Days at Fort Monmouth consisted of reveille at six a.m., classes five days a week, muster and
parade practice in the evenings, lights out at ten, parades every Saturday morning, and weekends
off unless I drew CQ (Charge of Quarters) which required me to stay awake all night in the
barracks office as a clerk/night watchman. Saturday after the parade we would usually go to
Asbury Park with its midway, merry-go-round with brass ring and music, boardwalk and beach.
After completion of my sixteen week course, I was promoted to Private First Class ($48.00
per month pay up from $36.00) and retained at Fort Monmouth as an instructor for the sixteenth
week of Field Radio Repair. I was the only instructor who was in the military. All others were
government service employees. I was promoted to Specialist Third Class (equivalent to a
Corporal) after I had taught for a year. I would remain at Fort Monmouth for the remainder of
my active service in the Army. I am very thankful that, because of the armistice, I was not sent
to the front lines of Korea.
After an accelerated one week course for instructors, I began teaching the sixteenth week of
Field Radio Repair. It covered the largest transmitter that the Army had for field operations.
The transmitter was about three feet wide and deep, and five feet high. It was of course a
vacuum tube, large ceramic resistor and capacitor system with many heavy wires. Transistors
had not been invented yet and miniaturization was in the future. The last tube was a large

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vacuum power tube that looked like a seven inch diameter light bulb. However it was a triode
with a cathode emitting electrons, a grid controlling the movement of the electrons, and a plate
which collected the electrons. My students had to learn to read the schematics, identify all
components and their function, trouble shoot to find any faulty component, and repair to
operating condition. The final test was to identify and repair a faulty component which I had
previously bugged. Several of my classes included officers from Iraq. I wonder if any of my
teaching filtered down to roadside bombs.
On my first leave after arriving at Fort Monmouth I went home and drove back my bright red
1950 Ford convertible. I licensed the car in New Jersey. It was great to have a car to go to
Asbury Park and once in a while drive to Hartford, Connecticut, to visit my brother George,
Deeda and their son Jeff. I did have one bad experience with my car. One afternoon I was called
in before my superior officer to account for my behavior the previous Saturday. He said that a
police officer from Eatontown, an adjoining village, had an arrest warrant that he wanted to serve
upon me for two serious misdemeanor traffic violations. I had supposedly driven my car in a
reckless manner through a police fire barricade in Eatontown, hit a fire truck, nearly creamed a
fireman, and driven away. I was in big trouble. However, as I explained to my superior officer,
I was on CQ duty all day that Saturday, I had not left the post, my car had not been driven, and it
was not dinged in. Luckily my sergeant verified my story and I escaped disaster. A fireman at
the scene had written down what he thought was the license plate number of the fleeing car-my
plate number. The fireman later acknowledged that he may have made a mistake especially
since the car he had seen was dark blue.

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I enjoyed the teaching very much but not the extracurricular regular Army activities. Twentyfive years later I would again become a teacher using some of the same teaching techniques (eye
contact with students, etc.) learned at Fort Monmouth.
After serving two years of active service in the Army, at the age of twenty-five, I was released
from active service and came home to Tanglewood just before Christmas of 1955. I was
required to be in the Ready Army Reserve for six additional years during which period I was
subject to active duty call up upon 24 hour notice. I received an Honorable Discharge from the
Army in December, 1961. I am very proud to have served my country.
One of the most important lessons I learned from my experience in the Army was that I
should appreciate how really blessed I am now. In the Army my life was completely controlled
by others-where I should go, what I should do (including kill the enemy), what I could eat, when
I could sleep. I am thankful for the simple things which are so important-basics such as food,
clothing, warmth, shelter and yes, fresh fruit. I am thankful for my freedom of action and
thought. I am thankful for every day that God grants me with health, family and friends. I am
thankful for a quiet sunset.

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CHAPTER SIX
The Middle Years 1956-1971
I returned to Jimmerson Lake and Tanglewood in December of 1955. My schooling and
military service days were over. What would lie ahead-a successful law practice, a wife and
children, a home of my own, new friends, some good times and bad times?

Law Practice
I decided to start my law career in the small community of Angola, the Steuben County seat,
rather than in a metropolitan area. I have never regretted this decision.
In January of 1956, at the age of twenty-six, I joined two local attorneys, Donald Trennepohl,
a graduate of Indiana University Law School, and Wilson Shoup, a graduate of Georgetown
University Law School, to form the legal partnership of Trennepohl, Berger & Shoup (we flipped
a coin to determine the name sequence). The partnership continued for 15 years until I was
elected judge of the Steuben Circuit Court.
Because of budgetary restraints, our first law office had only three small rented rooms near
the courthouse. One was the reception and secretarys room, and the other two were shared by
the three of us. I bought two used desks, chairs, and old file cabinets and placed them in one
room which I shared with Wilson. We tried to schedule our few clients so that they were not all
in our room at the same time. Our shared secretary was the wife of a Tri-State College student
and we paid her one dollar an hour for thirty-five hours a week.

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I will never forget my first client. She was a young lady from a farm family who wanted to
file for divorce. I prepared for many hours for the first session (including a four page outline of
the law and a list of questions that I would ask) so that I would appear very learned and not let on
that it was my first case. In spite of the preparation I was still nervous. My client came into my
office with her mother who was carrying a sleeping infant in a pink gown. They both sat right in
front of my desk. About five minutes into the visit, the infant suddenly awakened and began to
cry. I tried not to let the noise distract me from my very professional questioning. To show my
knowledge of pink vs. blue clothing I asked my client how old her baby was and what was her
name. My client said that she had no children. About then the mother hastily whipped open her
blouse and began nursing the ravenous baby about two feet from me. I went into a state of total
shock. I had seen a breast before (Inger Sather in the bath tub and a few others in the dark or
under a blanket) but a nursing mother (let alone an old one-maybe forty) was new to me. I tried
valiantly to continue the consultation like nothing unusual was happening even though I knew
my face was getting red. The good news was that there would not be a custody battle over
children in the divorce proceedings.
From this inauspicious beginning, things did get better and I enjoyed very much the challenge
of a general practice of law.

Susanna Ellen
In June of 1959 my law partner Don Trennepohl asked me to come to his house the next
Saturday night to meet a young school teacher who taught with his wife Beth at the Angola
school. Her name was Susanna Ellen (Susie) Lemley and she taught second grade. She lived at
home with her widowed mother in a cottage on Lake James. She was twenty-six, four years

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younger than I. As I try to describe her that first evening I get misty eyed as I think back. She
was five feet three, very attractive, and slim with dark brown long hair tied in a bun at the back.
She had sparkly eyes the color of amber. We had a great time with the assistance of several
Heublein whisky sours. It was the beginning of a wonderful three year courtship. Susie must
have liked me as she even went bass fishing with me at night (before we necked).
About a year into our courtship, as I was driving on the county road near Tanglewood, I saw a
Siamese cat along the side of the wooded road-skinny and all scruffy. I stopped by the side of
the road, opened my door and the cat jumped into the car. This was the beginning of a twelve
year friendship. I named the cat Heathcliff after the orphan boy from the wild and stormy
countryside of Wuthering Heights. The cats disposition was definitely wild and stormy. A
Siamese cat, according to my father, was one part human, one part dog, and one part cat. I gave
Heathcliff to Susie never expecting to get him back later when I married Susie. When Heathcliff
went to cat heaven, after an appropriate period of mourning, Susie and I were thinking of getting
another cat when, much to my surprise and amazement, I saw another Siamese cat along the
same road at almost the same spot. I brought her home and we named her Kitty. We could not
agree on a name so she was Kitty by default. She was just the opposite of Heathcliff. She was
very affectionate and gentle. It was hard to believe that she was a Siamese. She was with us for
only eight years. When she died, our children Susan and Johnny, were so heartbroken that we
immediately looked for another cat. We found a soft grey colored mixed breed cat at the humane
shelter and brought her home for Christmas. We named her Noel. She was our best Christmas
present. After about a week Noel became ill and we took her to the vets. She died two days
later. Susie and I told Susan and Johnny that her previous owners had come to claim her and that
she was now happily at home with them. They were sad but glad for Noel. Twenty-five years

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later when I was relating the story of Noel to some friends, Johnny, who was listening to the
story, was taken completely by surprise. He did not know until then that Noel never left the vets.
To fill the vacancy in our hearts in loosing Kitty and Noel, we set out in our station wagon,
with kitty litter box, for the village of Haviland, Ohio, about seventy miles away, to answer an
advertisement for a Siamese cat for sale. The price was reasonable-fifteen dollars. The kitty was
about five inches long. She could easily fit in the palm of my hand. We kidded later that the
reason that she acted strangely sometimes was that she was taken away from her mother too
soon. We named her Misty for one of Susies favorite songs. She became another member of
our family and lived with us for twenty-four years. She is buried in a simple grotto behind our
cottage at the lake.
I remember one brief moment which set the course for the rest of my life with Susie. When I
was leaving her lake cottage one evening, at the back door, she said in her gentle voice,
Goodnight dear. It was a simple statement, just two words, but the apparent love for me
shown in the way she said dear made me realize how privileged I was to have this wonderful
person care for me. It is hard for me to express my feelings but I knew from that moment on that
I would share my life with her forever. My mother told me that someday I would find the girl of
my dreams and she was right. It was like magic.
On Easter Sunday eve, 1962, Susie and I were at my parents house watching television
(Gunsmoke with Matt and Chester). My parents were away at Lancaster County, Pennsylvania,
to go antiquing. When the show was over, and just after the clock struck twelve to welcome
Easter Sunday, I presented Susie with a blue plastic Easter egg. She said, Whats this? I told
her to open it and nestled inside on a bed of green grass was an engagement ring. It was a

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perfect one carat diamond solitaire with gold band. I wanted Susie to have a ring just like she
was. It was a complete surprise to her. We had not ever discussed marriage. After appropriate
hugs and kisses I took her home and a new life would begin for me. Susie told me later that
when she got home she immediately awakened her mother, showed her the ring, and they started
planning the wedding. I was thinking of a wedding sometime in the fall but the well was primed
and two and a half months later, we were married at ten a.m. on June 16, 1962, at St. Anthony
Church in Angola. Afterward we had a small reception with brunch at the Eaton Springs Trout
Club and after changing clothes and grabbing our suitcases, we left for our honeymoon. Many
years later, after Susies mother died, when I was going through some of her mothers
belongings, I found her bible. Tucked inside in her careful handwriting was a brief prayer,
Please dear Jesus may Jack ask my dearest Susanna to marry her someday.

Following are photos of Susanna on her wedding day; of Susanna and me cutting the wedding
cake; and of Susanna, me, and my mom and dad at the reception.

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As you might guess, on our ten day honeymoon we went to Manitoulin Island with stops
along the way. Our first night out was spent at Houghton Lake, Michigan in a small log cabin
type motel. The room had rice all over the floor after I opened my suitcase thanks to brother
George. The name of the motel was Johnsons Rustic Village and I still have the receipt (Cabin

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Number 6, $11.00 per day). Then we traveled on to Saint Ignace (we stayed at real motel just
across the bridge to the Upper Peninsula of Michigan), Manistee in the Michigan Upper
Peninsula (a twelve room motel overlooking Lake Michigan), Upper Tequanimum Falls, Sault
Ste. Marie (overlooking the locks) and Little Current, Manitoulin Island. I friend of mine used to
kid me that Susie and I averaged twenty-two miles per day on our honeymoon.
Susie and I spent four days on Manitoulin Island at Little Current at a small motel on a hill
overlooking the swing bridge and downtown Little Current with its docks and sailboats. I bought
a Canadian fishing license but never could carve out the time to use it. We shopped at Turners,
had large ice cream cones at Farquhars Dairy Store, and ate dinners at the quaint Inn. We drove
slowly around the island to visit the villages of Kagawong, Mindemoya and Gore Bay. We
walked the mountain trail hand in hand to Cup and Saucer lookout. We swan in a crystal pool
below a waterfall near Manitowaning. We paused by the roadside to see unending fields of
daisies with their large white petals and yellow centers. It was a make believe time.
Susie and I returned to Tanglewood and lived in a home that I had built near my parents on
Jimmerson Lake.
In the early years of our marriage and before children, Susie and I were able to have many
wonderful times together.

We went to New York City with a stay at the St. Moritz Hotel, the view of the city from the
top of the RCA Building, the Rockettes at Radio City Music Hall, Chinatown, and the chance to
see the original performances of "Stop the World-I Want to Get Off" with Anthony Newley and
Anne Quale at the Shubert Theatre with the songs "Once in a Lifetime" and "What Kind of Fool

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Am I?", and "Funny Girl", the story of comedienne Fanny Brice, at Winter Garden Theatre with
a young and newly discovered singer named Barbra Streisand singing "People".

We also went to Chicago with a stay at the Drake Hotel, dinner at a high revolving restaurant
overlooking Chicago, Navy Pier and Lake Michigan, and a late night visit to a small nightclub
where Erroll Garner was playing the piano and his song "Misty."

We had quiet Saturday afternoons listening to the Metropolitan Opera on NBC with the voice
of opera for forty-three years, Milton Cross, announcing. Our favorite operas were all composed
by Giacomo Puccini: La Boheme, Madama Butterfly and Turandot.

Three Cheers for Valium


I had always brought a certain amount of pressure upon myself to do well in my studies
and athletic activities. I handled this pressure and life in general until about two years after my
marriage. By then I had endured the competition at Harvard Law, had served in the Army with
constant fear of the unknown with no control by me over my life, had tried to establish a law
practice, and had undertaken the responsibilities of marriage. I was happy, very satisfied with
life, and thought that I was emotionally stable. And then, wham, it happened almost overnight. I
had not seen it coming. I had reached, as I learned later, my mental stress threshold beyond
which I could not handle the pressures of my life. I had trouble sleeping. I felt exhausted. My
face and the top of my hands developed a warm and stinging sensation. I had no interest in
anything. I was terrified. At the urging of my wife, I asked for help from an internist, Dr.
Shaffer, in nearby Ann Arbor, Michigan, who had treated my dad in the past. Dr. Shaffer put me

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in Foot Hospital in Ann Arbor for four days for multiple tests, examinations and evaluation. No
cause for my condition was found except for mental exhaustion. Finding no other cause was a
great relief to me and was the first step in my recovery. Dr. Shaffer assured me that my
condition was treatable and that, with appropriate awareness and caution (and medication), I
would soon feel great again and I did. He explained that every person has a personal stress
pressure-anxiety threshold which should not be exceeded. I had to recognize mine and take care
in my life, as much as possible, to not exceed my threshold. Easier said than done, but I have for
the most part succeeded.
A large part of my recovery was facilitated by a new drug, Valium (now called Diazepam),
which had been released just the year before (1963). It was a better version of previously
released Librium and was generally known as a tranquilizer. It was advertised to reduce
anxiety, fear, tension, agitation, and related states of mental disturbance.

The developer,

Hoffmann-La Roche, must have had me in mind. Dr. Shaffer prescribed a low dosage of Valium
for me and it was the crutch that I needed to allow me time to accept that I had a threshold, and
to recognize when I needed to back off. I initially took Valium for two years-gradually
lessoning the dosage. In later years, I occasionally took Valium for brief periods when I felt
some of my old symptoms returning-especially the warm feelings on my face and hands.
My experience with my mental depression has made me realize how devastating mental
disturbances can be and that a person with such a condition should be understood and treated just
like a person with a physical condition.

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Susan and Johnny


Susie and I had always wanted to have children. I had asked Dr. Shaffer if having children
would be more than my threshold could bear, and he said the benefits far outweighed the risks
and I should roll the dice. He was right.
Our version of "family planning" consisted of no planning and we had expected good news
momentarily. But alas, after several years and no bundle of joy on the horizon, it was time to get
serious if we wanted to explore the mysteries of parenthood. We signed up with a Fort Wayne
specialist who was reported to know about how to fix such things. But before a diagnosis, we
had to undergo some testing. Susie's was very painful. Her Fallopian tubes had to be checked to
see if there was an obstruction-a procedure which called for the insertion under high pressure of
air into the tubes. My testing was frantic but not unpleasant. It consisted of obtaining at home in
Angola (I will not describe how) a sample of my semen and transporting it to a laboratory in Fort
Wayne forty-five miles distant by way of a twisting old two lane highway which passed through
three small towns (this was before the interstates). The sample had to arrive at the laboratory no
later than one and a half hours after it was produced or there was danger that many sperms would
be DOA. What a wild trip this was. Thankfully I was not stopped for speeding and I arrived on
time with several million (?) sperms alive and well for counting. Susie would later tease me
about my trip, especially since my semen receptacle was an old Smucker's jelly jar that said
"GRADE A FANCY."
We both passed our tests, and with the grace of God we later were blessed with two children,
Susan Elizabeth (1966) and John (Johnny) Christopher (1969).

Following are photos of Susan and John when in high school-the 1980s.

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When Susan started first grade Susie and I built a home in Angola to be nearer school and the
school activities. We later remodeled Susies parents cottage on Lake James where I still live.
My daughter, Susan, is not married and lives at the lake with me. Susan is a graduate of Ball
State University with a degree in Office Administration and since graduation has worked at
Potawatomi Inn on Lake James. John was graduated from Hillsdale College (he was a Delt like I
was) with a degree in Education, majoring in science, and teaches physics, chemistry and
biology at the Angola High School. John has coached both boys and girls high school basketball
for twenty-three years. John was married in August of 2011 to a wonderful woman, Valerie, and

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I now have a second daughter and three teenage grandchildren-all boys! John, Valerie and the
boys, Warren, Clay and Eli, live at nearby Auburn, Indiana.
Even though my hair has been grey for a long time, it is not because of our children. We
never had any problems with drinking, drugs, or pregnancies-just minor things. Neither ever
smoked (marihuana or otherwise). Susan did have a habit of scraping her Mustang II against
other cars but that was about all of the trouble she got into. John was another story. I had a habit
of putting things off hoping that they would go away (they never did). Susie said that I should
face reality and quit living in an enchanted cottage. Susie said that since I was the head of the
household I must go to school before classes and talk to Johnnys seventh grade football coach
about the helmet he is forcing Johnny to wear that is too small and hurts his head or I must talk
to the high school principal because they took Johnnys parking space away from him which he
had signed up for last year or I must take Johnny back to seventh grade track practice which he
quit and make him rejoin the team (he did rejoin the team, was a track star in high school and
college, and held the four hundred meter Angola High School record for twenty-three years) or
I must talk to the Angola Police Chief who had just called about Johnny or I must talk to
Johnny about Missy. She is much too old and mature for him and it can only lead to big
trouble.
Susie did undertake to assume some responsibility and that was in the area of sex education
for Susan. When Susan was in the sixth grade our school board, after heated discussions,
decided four to three to require all sixth grade students to have a two hour session (together with
a graphic slide presentation of the male and female reproductive organs and sperm valiantly
seeking their goal like Alaskan salmon in a Kenai stream) to inform the maturing students
concerning the intricacies of reproduction. Mrs. Belair, a retired second grade teacher, was

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selected to give the session because of her known expertise in this area. Susie and Susan
attended one of the first sessions. After the session, upon returning to our home, Susie sat down
quietly with Susan and asked lovingly if she had any questions. Susan replied, Mom, I didnt
understand anything.
Susie taught school until Susan was born and then she returned to teaching when John was a
junior in high school and Susan was at Ball State University. As a teacher Susie could not
smoke in public (we both smoked but we quit cold turkey the second year of our marriage) and
could not be seen at any place that served alcohol. Now teachers are allowed to drink and smoke
in public and cohabitation with the opposite sex or whatever is not frowned upon.

It is

interesting to compare the present attitude toward teacher conduct to the 1915 Angola Rules For

Teachers which I recently uncovered. Among the many rules were:


Women teachers who marry or engage in unseemly conduct will be dismissed immediately.
You are not to keep company with men in public.
You may not loiter downtown in any ice cream parlor.
You may under no circumstances dye your hair, dress in bright colors or smoke cigarettes.
Your dresses may not be any shorter than two inches above the ankles and you must wear at least
two petticoats.
Susie taught until her retirement at age sixty-two. Her students loved her-she was a mother to
all.

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The 1960s
The 1960s for me encompassed my continuing law practice, marriage, battle with nerves,
and the birth of my children. My personal experiences were set against a background of
momentous and sometimes tragic occurrences which deeply concerned the nation and me.
Following is a brief listing of some of these events which profoundly influenced our nation.
Do you remember?
1960: Segregated Whites only Lunch counter Sit-In by four black students at Woolworths in
Greensboro, North Carolina
1961: Berlin Wall built separating East and West Germany
Disastrous Bay of Pigs invasion of Cuba by Cuban exiles which was orchestrated by the
CIA
First manned suborbital rocket flight by Alan B. Shepard. Our rocket program basically
began at Cape Canaveral, Florida, with the test firing of an unmanned modified German V-2
rocket (Bumper # 7 from Launch Pad 3 which is still preserved) on July 24, 1950. Bumper #7
misfired at the launch pad but Bumper #8 on July 29 successfully launched and traveled 150
miles downrange over the Atlantic. These were the precursors of the Alan Shepard and Neil
Armstrong flights.

From 1950 to 1961 there were many other test rocket launches from

Canaveral. Some were successful and some blew up over the cape and the Atlantic. The first
testing grounds at Cape Canaveral were very near a small resort village called Cocoa Beach and
when there was a rumor of a prospective secret launching, most citizens and the few vacationers
would assemble near the jetty just across from the testing grounds to possibly see a launch.

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There was great excitement. If there was a launch, the entire launch site would seem to explode
with blinding light and a thunderous noise. The ground shook like a strong earthquake. Away
the rocket would go, hopefully downrange, and the assembled group would cheer and applaud.
This is exactly what happened as I was privileged to watch many of the early launchings. My
parents for many years during this period rented a small villa on the beach at Cocoa Beach
during the winter months, and I often would be with them during these formative rocket years. I
still feel the awe and wonder of these early marvelous events and am thankful to have witnessed
the beginnings of our flight to the moon.
1962: Cuban Missile Crisis almost precipitates nuclear war with Russia
Peter Paul and Mary release the folk song Where have all the flowers gone. The sad,
lovely lyrics, and lilting melody, present a haunting commentary on war. I have just played
again an old 33 record of this song and it brought tears to my eyes. The beautiful rondo begins
by asking the title, Where have all the flowers gone, then answering: young girls picked them
everyone, then the young girls are gone for husbands every one, then the husbands are gone for
soldiers every one, then the soldiers are gone to graveyards every one, then the graveyards are
gone to flowers every one, then the flowers are picked again by young girls every one. After
each refrain, the question is posed-when will they ever learn, when will they ever learn. I have
been a part of, witnessed or been affected by World War II, the Korean War, the Vietnam War,
the Gulf War, the Iraq War and the Afghanistan War. When will they ever learn?
Silent Spring by Rachel Carlson is published. This book is credited as awakening the
public to the dangers of the indiscriminate use of pesticides to life. There was fierce opposition

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to the book by the chemical companies but it brought about a change in national pesticide policy.
As a result, DDT was banned and the Environmental Protection Agency was created.
1963: John F. Kennedy assassinated
Martin Luther King makes his I have a dream speech
1964: Nelson Mandela sentenced to life in prison
1965: U.S. sends troops to Vietnam who will be augmented and remain until the fall of Saigon
to the North Vietnam Army in 1975. Total U.S. deaths and missing in action resulting from this
war against the North Vietnamese was approximately 174,079. An additional 102,202 were
injured and survived. When will they ever learn?
1966: Mass draft protests to Vietnam War. The song Where have all the flowers gone was
often featured. It had become apparent to many that this was not, as claimed by Washington, a
necessary war to prevent the spread the worldwide communism supported by China, but rather
an intervention into the internal affairs of Vietnam.
1967: Six-Day (June 5-10) War in Middle East: Decisive victory by Israel against Jordan,
Syria, and Egypt (United Arab Republic) wherein Israel took control of the Gaza Strip, Sinai
Peninsula, the West Bank including East Jerusalem, and the Golan Heights. Current policy
decisions are still influenced greatly by the result of this war.
1968: Martin Luther King assassinated
Robert Kennedy Assassinated

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My Lai Massacre of between 347-505 South Vietnamese unarmed women, children and
elders by U.S. soldiers. It was first claimed by U.S. commanders as a glorious victory against
the Vietcong after a fierce fight. After the cover up was exposed, fourteen officers were charged
and court marshaled. The defense was that they were just following orders-a defense expressly
denied at the earlier German Nazis Nuremburg trials. Of the fourteen charged, only one, Lt.
Calley, was actually convicted. He was found guilty of premeditated murder of not less that
fourteen people and sentenced to life imprisonment. The charges against the other thirteen were
either dismissed or they were found not guilty. His sentence was later commuted to three and a
half years house arrest.
1969: Neil Armstrong becomes the first man on the moon. When Apollo 11 landed the first
message was Tranquility Base here-the Eagle has landed and when Armstrong first stepped on
the moon Thats one small step for man, one giant leap for mankind.

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CHAPTER SEVEN
Steuben Circuit Court 1970-1980

In 1969 our circuit court judge Roger DeBruler was appointed to fill a vacancy on the Indiana
Supreme Court which created a vacancy in our local circuit court. Any vacancy was filled by the
Indiana governor.

The governors office contacted me and asked if I would accept an

appointment to the position. I had to let them know within twenty-four hours. It was a great
opportunity but came at the wrong time. I had just received a call from my mother from Cave
City, Kentucky, that, on their way driving to Florida, dad had suffered a severe respiratory
attack, was in intensive care at a nearby hospital, and may not survive. I called a friend at our
little airport who then flew me down in a small airplane to Cave City. On my first visit with dad
he could barely talk. The only thing I could understand was dad whispering to me, Take care of
your mother for me. I stayed for a week and dad miraculously recovered. He lived for another
fifteen years. When I returned, the democrat governor had appointed as our new circuit court
judge Louis Sisler, a young democrat attorney recently out of law school who had been working
for an obscure state agency.
The interim appointment as circuit judge ended on December 31, 1970, and there would be an
election for judge in the fall of 1970. I decided to throw in my hat to seek the position that had
slipped through my fingers two years before.

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The Judge
My seeking election for judge of the Steuben Circuit Court was hotly contested. Indiana
circuit court judges are elected on a partisan basis with a primary and general election.
I had to first run in the Republican primary against Olin Dygert, a friendly, fatherly and well
respected local Steuben County constitutional lawyer. I won the primary by 87 votes.
In the general election I ran against the incumbent democrat judge, Judge Louis Sisler.
Running against the incumbent is never an easy task, but somehow I squeaked by and I won by a
narrow margin.
On January 1, 1971, in the old high ceiling county courtroom, I was sworn in as judge of the
Steuben Circuit Court by the clerk of court before a small group of friends, court personnel and
my loving wife and two small children. The elderly bailiff, Russell Jackson, and court reporter,
Iona Crain, presented me with a beautiful walnut engraved gavel which I cherish to this day.

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John R. Berger
Judge, Steuben Circuit Court
January 1, 1971

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After I had served eight years on the bench as the sole judge of the Steuben Circuit Court, and
having been the only judge in the county with general jurisdiction, I was exhausted both
physically and mentally. I had begun as judge with high expectations of helping others resolve
their problems and participating in the administration of justice. I was excited to take on the
challenges. I was nave. It did not take long before I was exposed to the raw underbelly of
society. How could people act this way without any regard to others? I had never been exposed
to or could imagine such actions. Persons appearing before me were murderers, rapists, burglars
and thieves. Some defendants had committed incest, child abuse or domestic violence. Some
were mentally ill, alcoholics or drug abusers. Married couples could no longer stand each other
and could not wait to get a divorce. My actions and decisions as judge were necessary steps in
the judicial process but I was wearing thin and it was taking its toll on me. I had given my best
but after eight years I had seen the elephant. I had exceeded my threshold and I needed time
to recover. I knew it was time to move on and I resigned as judge.

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CHAPTER EIGHT
The Later Years 1980-2012

For the next year after my retirement from the bench I served as special judge by appointment
by the Indiana Supreme Court in various courts throughout northeastern Indiana.

It was

challenging and interesting work. However the pay was twenty-five dollars a day and I needed
to look for other opportunities. Even though starting a law practice over again was difficult as
most of my previous clients had sought other representation during my judgeship, I practiced law
for two years with my previous partner, Wilson Shoup and his son, Kim Shoup. It was a
pleasant association.
In 1983, at the age of fifty-four, I was given the opportunity to teach business law at Tri-State
University in Angola. At that time Tri-State was a small university with about one thousand
students. It was established in 1884 and had a long history of excellence. The university had
separate schools of business, liberal arts and engineering.

I was named Professor of Law, and

taught various law courses in the business school for eleven years until 1994. It was very
challenging as I was the entire law department. Over the course of a year I would teach courses
in Contracts, Torts, Commercial Transactions, Constitutional Law, Real Estate Law, Labor Law,
Business and Public Policy, which included Anti-Trust Law, Agency, Partnership and
Corporation Law. As you can see, I spent a lot of time preparing to teach these courses,
especially the first few years.

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These were perhaps the most enjoyable years of my legal career. I had loved teaching starting
with my Fort Monmouth days as a youthful soldier. The students were great-so young, so eager
to learn.
I retired from teaching and the practice of law in 1997. I was sixty-eight. Susie had retired
two years before at the age of sixty-two. We were ready to enjoy the golden years. We spent
the next five years together enjoying our children and friends, spending summers at the lake,
winters at Sanibel Island and Fort Myers Beach, and traveling. We traveled by car or cruise ship
to Quebec, Nova Scotia, Alaska, southern and western Caribbean islands, Yellowstone and
Tetons, around Lake Superior (three times), and of course Manitoulin Island to reprise our
honeymoon.
I enjoyed all of our travels but especially going around Lake Superior and Alaska. We would
always go clockwise when going around Lake Superior starting at Sault St. Marie-westward
through the Upper Peninsula of Michigan and northern Wisconsin with Bayfield and the Apostle
Isles-northward to Duluth, Minnesota, and to the delightful and charming lake side village of
Gran Marais, then the Canadian border-northward to Thunder Bay and eastward through
Marathon and Wawa (with huge metal statue of a Goose) to Sault St. Marie. The mountain drive
from Marathon to the Sault along the northern shore of Lake Superior is spectacular.
Our trip to Alaska was the most exciting of my life. It is truly the last frontier. We spent
one week on land and one week cruising southward. We flew to Fairbanks from Fort Wayne and
joined our Princess Cruise Line tour group for two nights in a beautiful riverside Fairbanks
Princess Lodge. The first day we went to a working gold mine and panned for gold. Yes, we
found gold-some from panning but most at the gift shop. That afternoon we cruised the Tanana
and Yukon Rivers in a large paddlewheel boat. From Fairbanks we went by old fashioned dome

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rail car to the entrance of Denali National Park, toured the park by bus with magnificent views of
Mount McKinley, and the wildlife including caribou, moose, Dalls sheep, grizzly bears and
ptarmigan. We stayed that night and the next at the Denali Princess Lodge. The first day in the
morning we took a wild jet boat trip on a glacial river to a remote cabin. In the afternoon we
went to Talkeetna (famous for its Moose Droppings Festival) for another jet boat trip to view an
ancient Athabaska Indian village and nesting bald eagles. The next day we joined the domed rail
cars for our trip to Anchorage and an overnight stay at the Hilton. After a morning tour of
Anchorage and the Heritage Center, we headed by motorbus to the Kenai peninsula and the
Kenai Princess Lodge for a two day stay of sightseeing and salmon fishing. We then took a bus
to the port of Seward to board our Sea Princess cruise ship for a seven day leisurely southbound
cruise. We cruised along the north shore of the Gulf of Alaska, first through Prince William
Sound with the largest collection of tidewater glaciers in the world, then on to Glacier Bay with
its many tidewater calving glaciers, and to the inside passage. On the inside passage we stopped
at the ports and cities of Skagway (with narrow gage railroad up the gold seekers treacherous
mountain trail to the Yukon), Juneau the Capital of Alaska (with boat trip to watch eagles, sea
otter, sea lions and magnificent whales bubble net feeding), and Ketchikan (with side trips to
watch bears feeding and visit a salmon hatchery where fingerlings are released into the Gulf of
Alaska to return three years later). From Ketchikan we cruised to Vancouver to end our tour. I
cannot attempt to describe the beauty and grandeur of Alaska. I was thrilled every second. This
was the last trip Susie and I would take.
Following is a photo of Susie and me taken on board the Sea Princess cruise ship at Juneau,
Alaska.

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In the year 2000, five years after her retirement, Susie received the dreaded diagnosis of
breast cancer. She courageously and hopefully undertook all of her operations and treatments for
five years. As the Welsh Poet Dylan Thomas urged his father, she did not go gentle into that
good night. But alas, after a last kiss, the winged angels took her to be with her parents on
February twenty-eight, 2005, as she lay in my arms. Susie is buried at the Circle Hill Cemetery
in Angola, high on a hill under a centuries old oak tree near her parents.
Later when searching for some Christmas ornaments in our clothes closet, I found an old
cardboard shoe box that I had not known about. The box contained materials saved by Susie
from our courtship and wedding day. Inside the box were all the letters that I had written to
Susie before we were married, old photographs of Susie and me, a Christmas present wrapping
ribbon with an attached small card saying To my darling Susie with all my love forever, from
Jack-Christmas 1959, Susies wedding garter, and the blue plastic Easter egg with green grass
that had held Susies engagement ring.
Ill end my story with dear thoughts of Susie and a song from 1934:
When I grow too old to dream
Ill have you to remember
When I grow too old to dream
Your love will live in my heart.
So, kiss me my sweet
And so let us part
And when I grow too old to dream
That kiss will live in my heart.

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I now live on Lake James in Susies old cottage with my daughter and memories. I am now
doing legal research, writing (See Endnotes 3 and 4 for recent essays) and lecturing for
Continuing Legal Education in an attempt to help with the legal education of attorneys. I would
like to be a good father and grandfather, and keep active as long as possible for, as in Robert
Frosts insightful poem Stopping by Woods on Snowy Evening:

The woods are lovely, dark and deep.


But I have promises to keep,
And miles to go before I sleep,
And miles to go before I sleep.

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NOTES
1.

VALADICTORY AT HILLSDALE COLLEGE MAY 1950


BY JOHN R. BERGER

Fellow graduates, faculty, students, parents and friends of Hillsdale.


Having been honored as the speaker of the class of 1950, I am reminded of a few thoughts
other than just those of farewell, which I would like to touch briefly upon. Thoughts which
many of us, in anticipation of leaving Hillsdale, may have let slip to lesser places of importance
in our minds.
Some four years ago, here at Hillsdale, there came into being a group we today recognize
among us as the Class of 1950. Even the least observant of us could hardly have failed to sense
that a sort of experiment in education was about to unfold-that this class, unlike many preceding
classes, was a distinct mixture in that this gathering of individuals was different. Naturally, in
any assembly of persons, there are bound to be differences, but as I like to think of it, the
essential lack of sameness in the Class of 1950 lay in the wide variance of the ages and
experience of the members-rather a situation of two groups within a group.
Returned servicemen making up a goodly percentage of this class were undoubtedly plagued
with wondering whether they could make the necessary adjustments to college life and compete
scholastically and socially with younger students who had no break in their studies, and who
therefore, supposedly had fresher minds. On the other hand, those of us making up the younger
category, fresher minds or not, were unquestionably aware and perhaps a little in awe of the fact

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that these older chaps had every reason to be surer in judgment, forced, rather they like it or not,
to mature almost overnight.
Mixed sentiments necessarily pervaded the atmosphere of the classrooms. What chance had
we youngsters in that European History class against fellows whose knowledge of the continent
was as casually complete than was perhaps our own familiarity with our hometown back yards.
Small wonder that many of us were wrought with youthful misgivings as we hopefully
questioned the possibility of eventually blending together.
Yet, and despite all of the mutual uncertainties which might have existed at the beginning of
our years at Hillsdale, we, the Class of 1950 are now arrived at the eve of graduation, and I think
it is safe to say that the experiment has proved successful. Older and younger, maturely and
immaturely, weve rivaled one another, if for nothing else, the sheer fun of competition. Weve
aided each other as a group. Little by little weve melded our seeming disparateness to the point
where it is doubtful today whether our early differences were worthy of the special significance
we attached to them. Weve all attained a keener sense of balance and direction in the presence
of these extremes which were the origin of our class.
For most of us, graduation will appeal to our sense of practicality and we do well at this time
to contemplate our respective attitudes. Do we now feel, diploma at hand, that all doors swing in
one direction-that necessarily because we are about to become college graduates our futures are
automatically guaranteed?
In the past four years it has become easy for each of us to identify ourselves with this thing
called success. But we attained this success as part of a group-a flourishing, active body of

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persons intent on a goal and assuredly bound for achievement. Now, in a few days, that goal
arrived, we concern ourselves with leaving our campus and we leave as we came-as individuals.
It is because we leave as individuals that we should be reminded that there are certain time
proven personal qualities, which as ever, shall determine whether or not we succeed. As we all
know, our personalities are formed from the cultural mulch in which we are reared, and therefore
it would not be fair to ascribe to Hillsdale the complete responsibility for the kind of persons we
are. And yet, having reached the level we are assumed to be on, it is also assumed that we are
capable of recognizing the importance of such things as initiative, tolerance, diligence,
cooperativeness, and above all, integrity. These are personal qualities which, linked with our
college degree, will assure our success.
As always there are changes to be considered. We have much to take in stride with which
graduates of yesteryear had not to concern themselves. It is with an eye to the new complexities
of our age and the foreseeable future that we should take special stock of the personal attributes
mentioned. These attributes, and innumerable others, will always constitute the life blood of any
human endeavor, and we should remember that our college degree should not be regarded as
unchallengeable keys to the untold doors we shall attempt to enter, but rather as a means of
securing our admittance once we are inside.
We as a class look to the future with hope-hope for our continued success. It remains for the
future to tell whether our experiment will be successful-whether we can continue to fulfill the
trust that has been put in us.
Although we believe in our own capabilities, we hear on all sides that positions will be harder
to obtain than before; that the world is not eager for our future services; that life will not be as

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easy as it was in the good old days. But before we dwell on these ideas too long, permit me to
read an excerpt from an editorial in The New Yorker magazine:
We live in an unhappy age. This is apparent on every side. Literature is full of unhappiness.
Our most thoughtful novelists are gloomy. Our representative poets sing in a minor strain. Our
deepest philosophers confess the mystery of life, the insoluble character of its problems. Art,
too, is melancholy. What pictures rivet the modern gaze like those full of sadness and pathos.
What strains rivet the modern ear like those full of mystery and unrest. Life is unhappy. The
capitalist is insecure in his possessions, the laborer is discontented with his condition,
professional life abounds in disappointments and heart burnings. The spirit of the time is one of
sadness. We are continually advancing in culture and material improvements. But is there any
advance commensurate in the art of happy living? No. If anything, there is probably a decline in
this respect. No century, perhaps, is more characterized by unhappiness than this.
This editorial appeared seventy-one years ago, in 1879. It appeared in what we longingly call
the good old days-the century in which many of our contemporaries say they wish they had been
born. Thus we see that all generations of graduates look ahead with uncertainty, wishing that
they could be back in the better times of yesteryear. Will not the graduates fifty years from now
refer to our time as the good old days?
As we prepare to be graduated from Hillsdale, in our thoughts we inescapably begin to re-live
our college days-the friends we have made, the hours spent in studies and in leisure. We
remember the first timid days spent in exploring our new found college, our professors
understanding, guidance and help.

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We remember our first friends, our first date, our first visit to the Arboretum. We re-live the
football games, the Spring formals, the hours of study and recitation. As we progressed through
the years our friendships and understanding increased. We matured and worked together toward
our mutual goal-graduation.
It is with a sense of regret that we realize that we must now leave behind all of these
wonderful days and commit them to fond memories. We have merely been preparing for our
future-for the test to come. By far the greatest and most interesting part of our lives lies ahead.
Although we shall leave Hillsdale, we shall always remember and cherish our college days.
We shall always think of our years at Hillsdale as perhaps the best years of our lives. When we
leave soon, we will not say goodbye, but rather-till we meet again.

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2. Following is a remembrance of my sister Peggy which I sent to her daughter, Melissa, in


2013.
TO MELISSA-A REMEMBRANCE OF PEGGY
I often teased her that she was my favorite sister. She was four years older than I, and my
only sister-always beloved.
Peggy, my brother George, six years older than I, and I had normal childhoods. At least I
think we did-no fights, no jealousy, and no tantrums. If there were problems with Peggy, my
parents shielded me from them.
I do remember that when Peggy was about a freshman in high school she once put on a pretty
dress and makeup and asked me how she looked. I gave a casual answer that she looked all
right. Actually, I thought that she was very beautiful but I was embarrassed to express my true
feelings. I can still see her posing for me.
Peggy was graduated from St. Ursela Academy High School and then attended the University
of Cincinnati for her freshman year (1944-1945). She had a very active social life and did not
accumulate many credit hours. Peggy then attended and was graduated from Wheelock Junior
College in Boston. My brother George had been recently medically discharged from the Army,
had married Deeda Graves and had enrolled in Hillsdale College in Hillsdale, Michigan. My
parents thought that a change in environment might be good for Peggy and she also enrolled at
Hillsdale College. Her older brother could look after her.
Peggy did well in her studies and was a member of Pi Beta Phi Sorority. I joined George and
Peggy at Hillsdale as a freshman in the fall of 1946.

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At Hillsdale, Peggy met Phillip Baumgarten, the son of a wealthy businessman from Chicago.
They fell in love and were married. The marriage was at the Church of the Assumption in
Cincinnati, our parish church. The reception was an elaborate affair (probably my mothers idea)
at the Mackatewa Country Club. It was a beautiful evening, flowers everywhere, and with most
dressed in gowns and tuxedos. It was certainly a happy affair with beautiful Peggy at the center
of it all.

Following are photos of Peggy at her wedding; and of Peggy, her husband Phil, and her
grandparents, Petronella and George Berger.

404

405

Peggy and Phil lived first in a small white house on the outskirts of Hillsdale. I would visit
with them often. Peggy did not continue her studies at Hillsdale and concentrated on being a
new bride. I did not have the opportunity to get to know Phil very well but he was always a
gentleman and had a ready handsome smile. They then moved to a beautiful house in Jackson,
Michigan. Phil was the successful owner of a small car carrier business. I did not see Peggy
very often during the next several years. I was busy with completing my undergraduate studies
at Hillsdale and obtaining my law degree. During my last semester at law school in February of
1953, I received the wonderful news that Peggy was pregnant and was expecting a baby in

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September. In those days you did not know the sex of the baby until birth but I was hoping that
she would have a girl-I was not disappointed.
I was graduated from law school in June of 1953 and returned home to Tanglewood at
Jimmerson Lake, Angola, to live with my parents until I was drafted into the Army in December.
Peggy also returned home to be with our parents in June of 1953. She and Phil had separated
and later obtained a divorce. Our parents were very supportive of Peggy and welcomed her into
their home and lives.
Peggy and I shared a guest room and bath which was attached to the garage behind the main
house. Peggy had a normal pregnancy and, all things considered, was always in good spirits.
She had a determination to not let things upset her and to be a good mother. One warm day in
early September Peggy wanted to go turtle hunting by boat in the third basis of Lake James.
Being the protective brother, I cautioned against such a trip as I thought that a bouncing boat
might precipitate early delivery. That did not bother Peggy and off we went. I was very nervous
and tried to avoid any large waves. It was a successful trip and we returned with three baby gray
back turtles.
Later on September 28, 1953, Peggy gave birth to a beautiful baby girl, Melissa, at Elmhurst
Hospital in Angola. Mom, Dad and I were present for this wondrous event.
In December of 1953 I had to leave for the Army and for the most part I was gone for two
years. I missed seeing Peggy and Melissa during this time. In early 1954 our parents helped
Peggy buy a home at LaGuna Park on Lake James for Peggy and Melissa. It was a happy time.
Later Peggy was courted by a friend that she had met at Hillsdale. His name was Carlton D.
McKenzie, Jr. (Mack). He and his father were the owners of a flour mill in Quincy, Michigan.

407

They made the very successful McKenzies Famous Buckwheat Pancakes.

Mack became a

good friend of mine. He was intelligent, sensitive and caring.


The courtship was successful. Our parents, Peggy and Melissa had been staying at Coco
Beach, Florida, for two months in the winter of 1955. I was still in the Army. Mack came down
for a visit and the rest as they say is history. Peggy and Mack were married in a simple
ceremony by a Justice of the Peace at the small county courthouse at Titusville, Florida. Mom
and Dad, and a barefooted one year old Melissa, were present. Melissa now had a loving father.

Melissa: My memory is not the greatest so some dates and facts may be a little off. I hope you
enjoy my remembrance of a wonderful sister and of you, my favorite niece.
January 30, 2013
Uncle Jack

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3.
THE RIGHT TO BEAR ARMS
John R. Berger, JD

AMENDMENT II (1791)
A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.

Prior to 2008 the United States Supreme Court had not ruled on whether the Second
Amendment protected from infringement any individual right of the people to keep and bear
arms. The lower federal courts had consistently decided that the Second Amendment protected
from federal infringement only the collective right of the people to keep and bear arms as a
member of the militia and that no individual right to keep and bear arms was protected.
Therefore, a state could reasonably regulate the individual possession and use of arms under the
states police power (the right of a state to pass reasonable laws to protect the citizens health,
safety, morals and general welfare), subject to any limitations in the state constitution and subject
to the states judicial determination as to what is a reasonable regulation. Also, Congress could
reasonably regulate the individual possession and use of arms under the powers given Congress
in the commerce and necessary and proper clauses in the Constitution. No such federal or
state legislation would violate the Second Amendment.
All of this established interpretation of the Second Amendment was changed drastically by
the United States Supreme Court in the cases of District of Columbia v. Heller (2008) and
McDonald v, Chicago (2010). In addition to the collective right to bear arms as a member of the

409

militia, the court established for the first time that there was also a pre-existing fundamental
individual right to bear arms which existed in 1791, and which right was protected from
infringement by the Second (federal action) and Fourteenth (state action) Amendments.
The Second Amendment does not create or grant the people any individual right to bear arms.
Rather than granting a right, it protects the people from having the pre-existing fundamental right
to bear arms taken away by the federal or state government. The United States Supreme Court in
Heller stated The very text of the Second Amendment implicitly recognizes the pre-existence of
the right and declares only that it shall not be infringed.
In contrast, many state constitutions establish such a right rather than protecting a pre-existing
right. As an example, the Indiana Constitution in Article 1, Section 32, states The people shall
have the right to bear arms, for the defense of themselves and the state.
The difficult decision is determining what this 1791 pre-existing individual right of the
people to keep and bear Arms as set forth in the Second Amendment and to bear arms, for the
defense of themselves as set forth in the Indiana and similar Constitutions mean, and what
restrictions on such a right may be imposed. The Heller decision states that such a pre-existing
right was not to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.
What do keep, bear, and arms mean? The Heller and McDonald decisions attempted to
answer this question and delineate some of the parameters of this individual right. Both involved
the constitutionality of laws prohibiting the possession of handguns in the home. The United
States Supreme Court decided (5-4) as a general principal that there were fundamental preexisting individual rights to possess and carry weapons in case of confrontation, and to use a
firearm for traditionally lawful purposes, such as self defense in the home. The court ruled that

410

prohibition by the federal or state government on the possession of handguns in the home for self
defense violates (infringes upon) the right to possess and carry arms protected by the Second
Amendment as to federal action and incorporated in the Fourteenth Amendment as to state
action. These decisions were limited to an examination only of the laws prohibiting possession
of handguns in the home.

The constitutionality of some permissible limitations on the

possession of weapons was set forth in the Heller opinion in dicta. The Court stated: We do
not read the Second Amendment to protect the right of citizens to carry arms for any sort of
confrontation. Like most rights, the right secured by the Second Amendment is not unlimited.
From Blackstone through the 19th-century cases, commentators and courts routinely explained
that the right was not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to
consider the question held that prohibitions on carrying concealed weapons were lawful under
the Second Amendment. Although we do not undertake an exhaustive historical analysis today
of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as schools and government buildings,
or laws imposing conditions and qualifications on the commercial sale of arms. The Court
further stated as to the personal use and possession of firearms We also recognize another
important limitation on the right to keep and carry arms. The sorts of weapons protected were
those in common use at the time and carrying of dangerous and unusual weapons can be
prohibited. Further, the Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purpose.

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The District of Columbia law banned all handguns in the district and the Chicago law
effectively banned all handguns in Chicago by registration provisions which had the practical
effect of banning most handguns in the city. The Heller and McDonald decisions struck down
the District of Columbia and Chicago laws because such laws would prohibit handguns in the
home for the purpose of self-defense. The court did not decide if the laws banning handguns
outside of the home in the District of Columbia and Chicago were constitutional.
The minority of four in Heller would have upheld the banning of handguns in the home in an
urban society and thought that the major underlying value and purpose of the right to bear arms
set forth in the Second Amendment was to protect the militias. There was fear that the right of
Congress to regulate militias as set forth in Article I would allow Congress to weaken or disband
militias, and therefore the Founders wanted to protect militias. The minority recognized that the
individual right to bear arms for self defense was important in primarily rural America but, in
light of changing circumstances to an urban society, this right can be limited because of the
greater risk of taking lives. Protecting innocent lives by banning urban handguns does not
disproportionally burden the interest the Second Amendment seeks to protect, self defense.
Therefore, according to the minority, the right to possess a handgun is not now a fundamental
right and is not incorporated in the Second Amendment or substantive due process clause as to
either federal or state action.
Those opposed to any regulation of the personal use and possession of weapons often cite The
Federalist Papers, written by James Madison, Alexander Hamilton and John Jay, Numbers 29
and 46, as authority for the unregulated personal right to bear arms. To support this claim, words
and phrases, such as the advantage of being armed, which the Americans possess over the
people of almost every other nation, are taken out of context, and a careful reading of the

412

complete papers easily discloses the error. All references to the right to bear arms in The
Federalist Papers are to the collective right to bear arms as a member of the organized militia.
There is no discussion of a personal right to bear arms. The U. S. Supreme Court in the Heller
and McDonald decisions properly and correctly did not refer to The Federalist Papers as
authority for recognizing a personal right to bear arms.
At the time that the Constitution was being considered by the state conventions, the antifederalists were afraid that the Constitution gave excessive power to the federal government and
wanted a Bill of Rights added to the Constitution by amendment.

In order to have the

Constitution approved, it was agreed to add such amendments although the exact rights to be
included had not yet been determined. The only reference in The Federalist Papers to any
proposed Bill of Rights was in No. 84 which argued that no such Bill of Rights was needed.
The anti-federalists were afraid that the following powers of Congress provisions in the
proposed Constitution, Article 1, Section 8 cls 15-16:
(15) To provide for calling forth the militia to execute the laws of the union, suppress
insurrections and repel invasions;
(16) To provide for organizing, arming, and disciplining, the militia, and for governing such part
of them as may be employed in the service of the United States, reserving to the states
respectively, the appointment of the officers, and the authority of training the militia according to
the discipline prescribed by Congress;
would give Congress the power to disarm the militias and impose rule through a standing army
or select militia. In order to allay such fears and to counteract any such action the Second
Amendment was proposed and later adopted. The first portion of the amendment would protect

413

the militias and the collective right to bear arms, and allow the militia to traditionally defend
against insurrection and invasion, and also to defend against their own governments unlikely
tyranny.
The Federalist Papers in No. 29 argues that the anti-federalists have no need to be concerned
about the above Section 8 clauses in the proposed Constitution, and explains favorably the
interrelationship of the militias and the proposed federal government pursuant to the above
Section 8 clauses. In No 29 there is no discussion of the personal right to bear arms.
The anti-federalists were also afraid that the proposed federal government would have power
to weaken the authority of the states. The Federalist Papers No. 46 argues that the states should
have no fear of the new federal government as the states have the capacity to resist in many ways
any ambitious encroachments of the federal government. Among such means of resisting would
be the state militias with arms in their hands. This is the only mention in The Federalist Papers
of any right to bear arms and it was restricted to arms used by the militia and not for personal
use.
In conclusion, except for the possession of handguns in the home for self defense and the use
of firearms for other traditionally lawful purposes (such as hunting, competitions, collecting and
target practice), as set forth in Heller and McDonald, the U.S. Supreme Court has decided that
laws can be constitutionally passed which place reasonable restrictions on the personal use and
possession of weapons, and which reasonably restrict personal ownership to the sorts of weapons
in common use at that time. What are the sorts of weapons in common use at that time and
what are reasonable restrictions are of course the difficult decisions that the legislatures will be
asked to determine, the constitutionality of which will be decided ultimately by the state and
federal courts. Since the Heller and McDonald decisions, the U.S. Circuit Courts of Appeals

414

have decided both ways on the issue of whether weapons for self defense can be possessed
outside of the home.

Note: Two possible references were not cited or discussed by the U.S. Supreme Court:

1. The 1870s prohibition of all weapons possession in Dodge City (which included Miss Kittys
Long Branch Saloon) by U.S. Marshall Matt Dillon.

2. The 1857 majority opinion of Chief Justice Roger B. Taney in the Dred Scott case wherein he
stated that if persons of the negro race were recognized as citizens it would give them the right
to keep and carry arms wherever they went.

4.

THE FOUNDING FATHERS


John R. Berger, JD
They came by ship or horse and stagecoach over narrow and muddy dirt roads. It had been
an exceptionally wet spring in 1787 and travel over the muddy roads to Philadelphia by some
delegates took as long as two weeks. The delegates had been sent to participate in a Convention
in Philadelphia as representatives of twelve of the thirteen states. They were instructed by their
legislatures to only make some minor changes to the 1781 Articles of Confederation which had
proven inadequate to establish a central government. The Articles provided for one Congress
with each state entitled to one vote. There was no executive, no federal courts, no way to
enforce laws, no way to raise money except by gift, and no commerce power.

415

The delegates consisted of fifty-five men from twelve states (Rhode Island was not
represented). They were of varied backgrounds, opinions and beliefs. They came from large and
small states. Forty-two had served in the Continental Congress. The average age was forty-four.
At the time of the Convention many men pursued multiple careers simultaneously. Twenty-nine
had undergraduate degrees. Twenty-nine had studied law. Fourteen were merchants. Ten were
in banking and finance. Sixteen were farmers. Twenty-five owned slaves.
The delegates officially met for the first time on May 25, 1787, in the Assembly Room of the
Pennsylvania State House (later called Independence Hall), a room 40 feet by 40 feet with
fourteen tables for the state representatives and the secretary, and a central table with a
handsome, high-backed mahogany chair for the president of the Convention. The central table
was the same table upon which the Declaration of Independence had been signed eleven years
earlier. The high, wide windows on the north and south sides of the room were kept closed so
that the deliberations would not be overheard. The delegates would meet, including weekends,
for one hundred and fifteen days-many of which in July and August were very humid with
temperatures averaging above ninety degrees in the chambers. It was in such circumstances that
these men of wisdom and common sense created, against their express instructions when
appointed, an entirely new document and Constitution that would establish a new national
government.
Against a background of strong and conflicting views concerning states rights, the respective
rights of small and large states, the right of the people to participate in national government, the
powers to be granted to the national government, and slavery, the delegates undertook the
daunting task of creating a national government and establishing a Constitution.

416

There were no other constitutions or forms of government which could be a model to guide
the delegates.

The delegates, despite their instructions to only modify the Articles of

Confederation, would create an entirely new form of popular government.


Among the myriad difficult and divisive issues to be decided by the delegates were:
(1) How should the national government be structured? Should there be a unicameral or
bicameral legislature? Should the legislature be appointed or elected, and by whom? How many
members should there be and what should be the length of terms, compensation, qualifications
and powers?
(2) Should there be an executive branch and if so, should the head of the executive branch be
one person or a committee? What should be the term, the compensation, and the qualifications
of the executive? How should the executive be selected-by the people, by the federal or state
legislatures, by Electors? What should be the powers of the executive?
(3) What courts should be created? Should judges of the courts be appointed or elected, and
by whom? What should be the term, compensation and qualifications of judges? What should
be the courts jurisdiction and powers?
(4) Should slavery be abolished? Should slaves be able to vote? Should they be considered
in determining the number of Representatives? What should be the rights of slaves who were in
free states?
But decide they did. The delegates melded their seeming disparateness and on September 17,
1787, the final draft of the Constitution was signed. It had taken the delegates only one hundred
and fifteen days to create our magnificent Constitution. In making their decisions, the delegates
valued persuasion over rigid unyielding defense of preferences or interests. Reasoned arguments
were substituted for the simple tallying of votes dictated by constituents preferences. The

417

delegates, after their deliberations, made their decisions based upon what they thought was best
for the community common good-they were not be bound by the majority preferences. James
Madison believed that the process of deliberation could produce results different from, and
superior to, any other ideas that representatives might have brought with them to an assembly.
Those in Congress now, and those who aspire to represent the people, who hold rigid,
unyielding preferences or interests, and who sign pledges to never vary from preconceived
opinions and positions, are doing an indefensible disservice to their country and to the spirit of
deliberation and compromise which was the catalyst to the formation of our nation.
The Founding Fathers envisioned governance as a process of deliberation by statesmen
with diverse backgrounds, convictions, and aspirations which would make possible a form of
decision making unavailable through any other form of decision making. Representatives who
see the world through very different lenses could help each other see more clearly.

Our

Representatives must be willing to change their minds and yield to the force of the better
argument for the public good.
From that monumental day in September of 1787, we the people have been entrusted with the
awesome task of governance. The problems facing our nation today are small compared to the
daunting task accomplished by the delegates. Let us now learn from them. It is not too late for
our representatives, with impartial concern for the public good, to be truly statesmen, to follow
the example of The Founding Fathers, and to fulfill their trust and vision.

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