The Case of Dr. Samuel Sheppard

It was the Energizer Bunny of murder cases. After 46 years, the Sheppard case was still in the courts of law and public opinion.

The decision of the Ohio Supreme Court released December 2, 1998, guaranteed it would keep going into the new millennium.

(left to right) Justices Andy Douglas,
Francis Sweeney, Alice Resnick

The 4-3 ruling was that the suit filed by Sam Sheppard's estate to clear his name could go forward. But it was based on a technicality, and the three dissenters implied it was an attempt to duck the hot potato for another two or three years.

"I believe the majority has based its decision on something other than the law," Justice Andy Douglas wrote. "Unfortunately, and for whatever reasons, the majority has elected to sidestep the patent and unambiguous requirements of [the pertinent statutes]." Justices Francis Sweeney and Alice Resnick joined in the dissent.

Congresswoman
Stephanie Tubbs Jones
(OH-11), serving the
greater Cleveland area

The majority ruled that the issues raised by County Prosecutor Tubbs Jones should properly be raised in an appeal after the trial rather than in a motion to prohibit a judge from holding the trial, which is what she filed.

In the majority opinion, Justice Evelyn Stratton said Tubbs Jones ("the relator") had sought a writ of prohibition on the grounds that the statute of limitations had expired and the law did not give the right to file such a suit to the administrator of Sheppard's estate.

"A writ of prohibition is not a substitute for an appeal," she wrote. "The issues raised by relator...are ones properly addressed by trial court or upon appeal, not by way of a writ of prohibition."

(left to right) Justices Evelyn Stratton,
Thomas Moyer, Deborah Cook

She was joined by Chief Justice Thomas Moyer and Acting Justice Richard Knepper. Justice Deborah Cook concurred except for two parts of the opinion, but did not spell out her disagreement with them.

Knepper, an appeals judge from Toledo, was named to the panel when Justice Paul Pfeiffer suddenly withdrew from the case in July. The mystery was why Pfeiffer waited six months after hearing arguments in the case and five months after Ronald Suster, the trial judge, filed as a candidate for Pfeiffer's seat.

The 4-3 split gave credence to the inside story reported by columnist Brent Larkin — that the court's first vote was 4-3 to let the suit go forward, with Pfeiffer in the minority.

But, Larkin wrote, one of the four-member majority switched sides, leaving Pfeiffer in the uncomfortable position of casting a deciding vote against his opponent in the election — and maybe even having written the majority opinion.

If so, Pfeiffer's withdrawal had the ironic effect of reversing the decision and tossing the case back to Suster, who remained on the Common Pleas bench despite his loss for the Supreme Court.

In September Suster, the trial judge, set the case for Jan. 31, 2000. It had been scheduled for October, but Bill Mason, who succeeded Tubbs Jones as county prosecutor, asked for the delay.

He said he planned to exhume the body of Marilyn Sheppard and — something which had not previously been made public — a fetus believed to be buried with her.

Mason would not say what evidence he was seeking. Speculation was that the DNA tests might show who, if anyone, Marilyn bit during her struggle. And they could show who was the father of the unborn child she was carrying when she was killed. Rumors in 1954 were that it wasn't Sheppard.

The plaintiff technically was Alan Davis, the longtime friend who became executor of Sheppard's estate when he died in 1970. In effect, though, it was Samuel Reese Sheppard, who would be eligible to sue the state for damages if his father were ruled legally innocent rather than simply not guilty.

Previous judgments for wrongful imprisonment have all been won by living ex-convicts. They were able to show that somebody else had subsequently been convicted of the crime for which they had served time, or else that DNA evidence showed they could not have been the perpetrator.

DNA evidence cannot prove that somebody was the person committing the crime. But it can show that the defendant and the criminal were among a small number of people sharing the same DNA type. Added to other evidence, that has been enough to send a number of defendants to prison.

Thus the case appeared to hinge on how much, if any, of the DNA evidence against Eberling was admissible, with the prosecutor producing experts to counter the testimony of Dr. Mohammed Tahir, Sheppard's expert.

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That appeared to have already been done, thanks to a remarkable decision by Sheppard and lawyer Gilbert. In effect, they put their case on television three months ahead of the scheduled court date. That may have been a good move in the court of public opinion. But, with the prosecutor watching, it was a questionable move strategically.

On Oct. 16, the Public Broadcasting Service "Nova" show was devoted to the case. It showed a model of the murder room and experts demonstrating blood spatter patterns from a simulated skull.

The show appears sympathetic to Samuel Reese Sheppard and Gilbert's argument for Dr. Sam's innocence and Eberling's guilt. Clips show Sam Reese Sheppard saying, "My mother was murdered. I want my mother's murder solved" and "My dad, Dr. Samuel H. Sheppard, was innocent of the crime that he was wrongly convicted of."

The narrator seems to agree: "The DNA results have corroborated the most important part of Gilbert's case."

So, in a clip, does lawyer Barry Scheck, who defended O.J. Simpson against DNA evidence: "Kind of a nightmare, isn't it? That a man could be accused and convicted of killing his wife and be innocent?"

But after more than 45 minutes, the show takes a sharp turn. The narrator says, "But the evidence against Eberling is weaker than it seems." Scheck declares, "Legally, it's worthless because certain controls failed, and you're not going to get it into court."

The narrator says the samples were degraded by age and Tahir was able to test only eight alleles, or pairs of genetic markers — not enough for a positive identification.

He adds: "The samples were collected decades before DNA testing was developed. Anyone who handled them over the years could have left their own DNA from a sneeze, a drop of sweat or even a flake of skin."

The previous quotes of Dr. Keith Inman, a criminalist, have seemed to support the evidence. Now he says: "Given what we now know about most of the evidence, its history of handling and passing from one person to another, the results that we have, in my mind, are essentially worthless."

The PBS cameras were present when Gilbert demands that police reopen the case on the basis of DNA evidence. Tubbs-Jones tells off Gilbert. The narrator declares: "But the strategy backfires. The prosecutors, Stephanie Tubbs-Jones and Carmen Marino, are furious at Gilbert's grandstanding."

Later, he says, "Gilbert may have miscalculated. By trying to force their hand, he may have pushed the prosecutors into fighting the case even harder."

The show closes on a quote from Gilbert: "In spite of our beliefs and our strengths, you know, we don't know what will happen. But we're thankful we're going to be able to present the case. Maybe that's as good as it gets."