The Case of Dr. Samuel Sheppard
Enter F. Lee Bailey
When Corrigan died in 1961, the Sheppard family turned to Holmes for help in finding somebody to carry on the fight. Holmes asked Bailey, whom he had only recently met, if he would be interested. Bailey read Holmes' book about the trial; he reported his reaction to it in his 1971 book, The Defense Never Rests.
"I was furious," he wrote.
(Cleveland Press)
He flew to Cleveland and met Dr. Steve. The next day the two interviewed Sam in prison. "I'll charge you a whopping fee," Bailey told him, "but I'll help you earn the money to pay for it."
Bailey's first move was to try to get a lie detector test — something Sheppard had refused to do seven years earlier but now was willing to try. Bailey needed permission of the governor to do it, and he went to see Louis Seltzer at the Press to seek editorial support.
When Seltzer refused, the brash young lawyer told him, "I'm going to beat you. And when I do, I'm going to hold you up to scorn and ridicule." Or so Bailey wrote, adding that "Seltzer and his boys" denied the incident happened.
The state refused the lie test. But two young Harvard Law School students hired by Bailey as investigators turned up enough evidence that in April 1963 Bailey filed a habeas corpus motion in federal court.
He charged that Sheppard had been denied his constitutional rights. In particular, he raised the point that had attracted Justice Frankfurter's attention — the media circus — and the failure of the judge to grant a change of venue or protect jurors from the barrage of prejudicial publicity.
The case was assigned to District Judge Carl Weinman of Dayton, who didn't begin hearings until January 1964. Bailey's case got a boost from a chance meeting with columnist Dorothy Kilgallen, who gave him an affidavit that Judge Blythin told her during the trial that it was "an open and shut case." Asked why, she said he replied, "Well, he is guilty as hell. There is no question about it."
Blythin had died in 1958, and his defenders refused to believe he would have made such a prejudicial statement, but it weighed heavily with the court.
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While it wasn't going to affect the law courts, sympathy for Sheppard was growing in the court of public opinion, helped by Holmes' book and a number of magazine stories which appeared all over the world — most significantly, as it turned out, in Germany.
Bailey even made an appearance on the Mike Douglas television show, where he demonstrated a lie detector by questioning comedienne Dody Goodman.
The media event that was to have the most effect, however, was a television drama. From 1963 to 1967, The Fugitive kept audiences tuned to the adventures of Dr. Richard Kimble, played by David Janssen. He had been wrongly convicted of his wife's murder but escaped and was trying to find the real killer — "the one-armed man."
It was almost universally believed to be based on the Sheppard case, though its creator, Roy Huggins, insisted it wasn't. When the show was cancelled in 1967, the New York Times suggested it was because its ratings had fallen following Sheppard's release in 1966. In 1993, The Fugitive was made into a hit movie starring Harrison Ford.
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On July 16, 1964 — 10 years and 12 days after the murder — Judge Weinman issued a blockbuster ruling. He ordered Sheppard released from prison. "If there ever was a trial by newspaper," he wrote, "this is a perfect example. And the most insidious violator was the Cleveland Press."
He found five separate violations of Sheppard's constitutional rights. "Each of the aforementioned errors," he wrote, "is by itself sufficient to require a determination that petitioner was not afforded a fair trial as required by the due process clause of the Fourteenth Amendment. And when errors are cumulated, the trial can only be viewed as a mockery of justice."
Sam Sheppard was a free man. Bailey and Sheppard's family were waiting for him. So was Ariane Tebbenjohans.
son in a car
If public interest in Sam Sheppard had waned, Ariane Tebbenjohans revived it. Bailey's description of her outdid the newspapers: "At 33, she was a glamorous blond divorcee easily able to afford mink in the winter and the Riviera in the summer."
Bailey first heard of her when she sent him a letter with 1,000 marks — about $250 — for the fight to free Sheppard. It was the largest contribution he had received.
Ariane's indignation about Sheppard's plight had been roused years earlier by a magazine she picked up in her dentist's waiting room in Germany. After her divorce from a steel industry heir in 1957, she had begun corresponding with him.
Soon Sheppard was carrying a lock of her hair. In 1963 she received permission to visit him in the Ohio State Penitentiary and flew to Columbus. After a brief trip back to Germany, she returned to the United States to stay. She bought two cars — one for herself and one which she kept ready in a garage for Sam.
When Sheppard was released, he spent his first night of freedom in the Baileys' Columbus motel suite. Ariane joined them.
The following night the four of them left with Paul Holmes, the Chicago Tribune reporter who had become a Sheppard ally. They didn't say where they were headed, but they were followed by a cavalcade of 12 cars filled with reporters and photographers.
They managed to lose all but one along the way to Chicago, and that one was stopped by guards when it attempted to follow them into the Tribune parking lot. The others learned about their plans by reading the Tribune. They were going to be married in Chicago; flash bulbs popped when they got their marriage license.
But the others didn't know where the wedding would be, so there was another movie-style chase through the streets to the Conrad Hilton Hotel, where a magistrate was waiting. They were married in a hotel room with Bailey and his wife as witnesses and Holmes on the phone dictating a running story to a rewrite man back in the city room.
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Sheppard's elation was short-lived. In May 1965, a federal appeals court voted 2 to 1 to reinstate his conviction. The count of state and federal judges ruling on his appeals was now 10 to 4 against him. He was allowed to remain free pending his appeal to the U.S. Supreme Court.
In 1956 the Supreme Court had refused to hear Sheppard's appeal of his conviction in state court. This time the justices agreed to hear the federal case. They set it for trial in February 1968.
Bailey was making his first appearance before the justices. It was a court much more sensitive to rights of defendants than it had been 12 years earlier. Joshua Dressler, a professor at the Ohio State University Moritz College of Law, is an expert on the Warren Court. He believes the 1956 court might well have delivered a fatal blow to Sheppard's cause.
"In the mid-1950s, not only was the Warren Court not due process-conscious, but even Chief Justice Warren was still feeling out his own views on criminal justice," Dressler said."There probably wasn't the kind of law on the books to cause the court to overturn the Sheppard conviction."
Now the present justices listened sympathetically when Bailey told them he was not trying to silence the press."What I mean," he said, "is that although trial by newspaper represents a serious problem, we have sufficient remedies within the law which were not exhausted in this case without coming to the question of what must be done to silence the press."
Ohio Attorney General William Saxbe and Cuyahoga County Prosecutor John T. Corrigan argued the trial had been fair. "We have on trial the jury system of the United States," Corrigan declared.
The Supreme Court delivered its decision on June 6. D-Day.