Instrument of Torture

One of the slowest criminal trials in the history of Los Angeles County was also one of its saddest and strangest.
 
In 1951, the 17-week murder trial of Violet John Berling for the torture-slaying of 10-year-old Kay Frances Erickson dominated the news with allegations of sexual abuse, faith healing, and accordion playing.
 
Berling was a 32-year-old daughter of a Vaudeville performer who, with her 52-year-old lover, made her living giving accordion lessons in a tiny studio apartment in Long Beach. In July 1950 she took custody of Kay Frances to immerse the girl in the practice of playing the accordion. By October the girl was dead.
 
Kay’s mother, Beatrice Erickson, was studying to become a nurse’s aid and Kay was taking music lessons from Berling for $4 per week. According to Erickson, Berling promised if Kay lived with her for a year, she could become a famous accordion virtuoso.
 
Erickson said that several times during the spring and early summer of 1950 Berling asked if Kay couldn’t come to live with her. But Kay was struggling in the fourth grade and Erickson told Berling that she thought her daughter was spending too much time with music and dancing lessons which distracted her from her schoolwork.
 
“She said (Kay) could become a good accordion player and be a star, a professional, and earn a pretty good amount of money,” Erickson said. Berling’s promise of easy money may have sounded too good to the mother. “I told her we would take her out of school and take her down to the studio every day.”
 
Over the summer Erickson began nursing school and the offer by Berling to watch Kay became attractive to the Erickson family, which was struggling financially.
 
From that point, the stories of Erickson and Berling differ greatly.
 
Erickson testified at Berling’s trial that Kay was perhaps a bit high-strung and stubborn, but was otherwise a normal, healthy, happy 10-year-old girl who enjoyed music, dancing, and gymnastics. She did add that she had to whip the girl “to make her mind.” The mother also testified that she gave Berling the authority to discipline Kay Frances as she deemed appropriate.
 
Berling, however, painted a picture of a seriously mentally ill youngster who enjoyed self-mutilation, excessive masturbation, and heard voices. Kay Frances, according to Berling, hated her family and thought about killing them by turning on the gas while her parents slept.
 
Kay’s mother told about how Berling isolated Kay from her family, who by modern standards appear quite gullible. At one point, Berling told Erickson that she was not welcome at Kay’s recitals because “they were private affairs.”
 
“She asked that we not visit because Kay Frances did not practice as well on the accordion after seeing us,” Erickson testified.
 
For her part, Berling denied making such statements and during her two-week testimony and cross-examination while on trial, she claimed that Kay and her mother were emotionally distant.
 
“The child’s mother and Kay Frances never embraced, never called each other endearing terms,” Berling testified. “After one visit to her home July 29, Kay Frances said ‘I hate them. I never want to go back home.’”
 
There is no doubt that Berling was cruel to Kay Frances.
 
She admitted whipping the girl when she misbehaved, allowing her boyfriend, Miguel Verdugo, to lash the girl’s arms and legs to a filing cabinet, and forcing her to sit behind a large stuffed chair while other students took lessons. She claimed Kay’s mother suggested the whippings. Kay was tied to the filing cabinet for 90 minutes while Verdugo and Berling went out to dinner.
 
Verdugo was not charged in connection with the girl’s death.
 
Kay Frances EricksonOne 9-year-old witness, who played in an accordion quartet with Kay, said she saw a bandage tied all over Kay’s face except the eyes and nose at least three or four times. Once when the children had been taken to a movie, Kay Frances’ eyes were covered with several scarves which were left on during the entire picture. On other occasions Berling kicked Kay Frances for not getting the accordion right and had told the other children to kick Kay, the girl testified.
 
Kay’s three other quartet colleagues each testified that Berling had forced Kay to masturbate in front of them and threatened all of them with punishment if they told their parents.
 
Berling vehemently denied “ever laying a hand on the child.”
 
Berling told the court that she frequently tied Kay Frances to a straight-backed chair when she practiced the accordion while also restraining her left arm to ensure it maintained the correct position for accordion playing.
 
She claimed that accordion players frequently tie themselves to chairs while practicing to help relieve the pressure of holding the heavy instrument. It was when she was tied to a chair that Kay died.
 
Berling was arrested in mid-October 1950 after she made a frantic call to a doctor that Kay Frances was desperately ill after “abusing herself.” By the time the doctor arrived at the one-room flat Berling and Kay shared, the little girl was dead. Her body was a mess of burns, cuts, and bruises. Kay was emaciated and twenty pounds below the normal weight for a 10-year-old girl. It was obvious to anyone who looked at her that she had been abused.
 
Berling suggested that the little girl committed suicide by stabbing herself.
 
She told the police that she woke up to find Kay Frances tied to a chair, mumbling as if asleep.
 
“Take Joan’s accordion off me,” Kay allegedly said before lapsing into unconsciousness.
 
The Los Angeles coroner’s office conducted an autopsy and determined that Kay had died by choking on her vomit and had been dead for at least five hours before Berling claimed to have found her unconscious and tied to a chair.
 
The coroner went on to opine that Kay would not have aspirated her vomit if she had been conscious or even merely sleeping.
 
The coroner ruled that none of the wounds were self-inflicted; some were so located as to make self-infliction unlikely. Some of the wounds were apparently of recent origin, others were reopened older wounds. There were numerous slicing wounds from some sharp instrument such as a razor blade, some apparently inflicted only a short time prior to the girl’s death. Certain burning wounds had been produced only a few minutes or a few hours before death.
 
A triangular area of abrasion appeared in Kay’s pubic region; a vaginal tear was present, and both her vagina and anus were found to be dilated and open. The examiner opined that these conditions indicated a frequent stretching of the parts over some period of time, and the introduction of some object “of considerable resistance.”
 
At a coroner’s inquest, Berling denied ever hurting Kay Frances beyond basic corporal punishment. The teacher said it was not her practice to use physical discipline on her students and testified that Kay’s behavior made “whippings” necessary.
 
Kay Frances came from a family with a strong belief in faith healing and out-of-the-mainstream religious practices. Beatrice Erickson said she attended churches that used spirit trumpets and divining rods in their religious practices.
 
Berling testified that these beliefs had a negative effect on Kay. After a man whom Berling said sexually abused Kay died, Kay Frances started putting a rolled newspaper up to her ear “to listen to the voices.”
 
“She would stare into space; when spoken to she would not answer,” Berling testified. “I would shake her and she would come to. She played as if she was blind and kept her eyes half masted. She did this quite frequently.”
 
Rather than consult with a physician about the girl’s strange behavior — or the police about Kay’s molestation — Berling simply slapped the girl to break the trance.
 
“I would shake her…slap her on the face…nudge her with my foot and then her eyes would open wide and she would say ‘the voices told me to play blind.’”
 
Berling’s lengthy trial in 1951 was marked by her numerous fainting spells that prompted numerous delays and forced the case to go on without the defendant in the courtroom. Toward the end of the trial, Berling appeared in court wearing an eye patch because of an infection in her left eye.
 
The trial record shows 47 separate references to Berling’s mental and physical condition between March 8 and April 12, 1951, including 20 recesses granted for this reason, extending from a few minutes to five days. For example, on March 8, the trial court excused the jury, having observed that Berling appeared ill with “a severe tremor and she is sitting now at the counsel table with her head down and her eyes closed part of the time.” To the court’s inquiry “She gave me no answer, which doesn’t show an alertness that is necessary for a defendant in her position.”
 
After the four-month trial, the jury debated for eight days before finding Berling guilty of first degree murder. The jurors said later that there was never any doubt of her guilt and that all but 30 minutes of the deliberations centered on the degree of guilty.
 
Berling’s mother had to be taken from the courtroom when the judge attempted to read the verdict, shouting “No, no!” over and over. Berling herself collapsed in tears in the courtroom.
 
She was subsequently sentenced to life in prison.
 
Of course she appealed, using a novel argument: “A major part of the trial was conducted in the absence of appellant,” who, although physically present in the courtroom, was often unconscious or only semiconscious, and “mentally absent during much of the trial,” her appellate brief read.
 
Under California law at the time, a defendant had to be present at every stage of a felony prosecution, specifically, the accused person had to be both physically and mentally present.
 
“Mere physical presence without mental realization of what was going on would obviously be of no value to the accused,” the California Court of Appeals wrote in Berling’s case. “A defendant in such condition would be unable to confer with or assist counsel, unable to testify, and without ability to understand the nature of the accusation or the mechanics or consequences of the trial.”
 
The court ordered a new trial, at which Berling opted to be tried before a judge. In a one-day trial, she was convicted of second-degree murder. The judge, in finding Berling guilty of the lesser-included offense, ruled that the state did not prove that the wounds found on Kay’s body caused her death because the actual cause of death was declared to be “choking on regurgitated food.”
 
Interestingly, Superior Court judge George Francis acknowledged the coroner’s opinion that Kay’s head wounds caused the vomiting, but ruled that “the head blows did not constitute torture because it was not shown that they were struck with the intent to satisfy abnormal urges,” he said.
 
Judge Francis did go on to say that tying Kay to a chair did show “an abandoned and malignant heart from which malice is implied” and that strapping her to the furniture did constitute felonious assault, prompting the second-degree murder charge.
 
The judge recognized that his verdict satisfied the letter of the law, but probably not its spirit.
 
“It could well be that the verdict of murder in the first degree is closer to the truth in measuring the defendant’s responsibility than this court’s finding,” he wrote. “However, the court feels that its verdict is compelled by the rule of law that a reasonable doubt as to degree must be resolved in favor of the defendant.”
 
Violent Berling was sentenced to seven years-to-life for the murder. Having served two years in prison, Berling could have been free in five years or less, according to her attorneys.
 
However, at a hearing before the California Parole Board, the board recommended that she serve at least 50 years. A decade after Berling was convicted the second time, the deputy district attorney who prosecuted her retired. At that time, the press indicated that she was still behind bars.