The Case of Dr. Samuel Sheppard

The second jury in 1966 had declared Samuel H. Sheppard legally not guilty. That wasn't good enough. Certainly not in Cleveland, where most people old enough to remember the case believed the first jury had gotten it right.

Determined to prove his father was not only not guilty but innocent, Sam Reese Sheppard kept looking for evidence. In 1993 he got a big boost when officials of AMSEC became interested in the case. The Washington area investigative firm worked mainly for large corporations, but it agreed to send professional investigators to help Sheppard.

They soon hit paydirt.

Among exhibits from the trials they found a small vial with a tiny sliver of wood inside. It was State Exhibit 84, a wood chip with blood on it — a part of the "trail of blood" down the stairs. It had attracted little notice at the trial but, they realized, it was something that in 1993 could be tested for DNA.

They also turned up a man named Ed Wilbert who, like Vern Lund, had worked for Eberling's window washing company. Contrary to Eberling's description of himself as almost a member of the Sheppard family, Wilbert said Marilyn Sheppard had caught him stealing and disliked him.

Wilbert also said that when the Sheppards weren't home they would leave an outside basement door unlocked for the window washer.

John T. Corrigan had retired in 1991 and been replaced by Stephanie Tubbs Jones, the first black and first woman county prosecutor. Hoping that she would have a more open mind than Corrigan, AMSEC prepared a 160-page report and Terry Gilbert, the lawyer now representing the family, took it to her with a request that her office reopen the investigation.

It was a hot potato, but after studying the report for months Tubbs Jones agreed to cooperate with the Sheppard investigators.

In 1954 and 1966 prosecutors were not required to turn over to the defense "exculpatory" evidence — something that might help the defense case. That was one of the defendants' rights established by the Supreme Court afterward.

Now the investigators discovered that among the police evidence never introduced at trial was a plaster impression of a freshly made tool mark in a door at the foot of the basement stairs. The detective's report said it "appeared to have been made by a chisel or wedge-like tool."

A key prosecution contention in both trials had been the lack of evidence of forcible entry into the house. A key defense contention had been that police made no attempt to pursue evidence that might have cleared Sheppard. An AMSEC investigator called the suppression of the tool mark evidence a "smoking gun."

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In October 1995, Gilbert filed suit on behalf of Alan Davis, administrator of Sheppard's estate. It asked Cuyahoga County Common Pleas Court to formally declare Sam Sheppard innocent — not just not guilty — of the murder of his wife.

The petition declared: "The evidence will show that Eberling had the motive, opportunity, identity and access to kill Marilyn Sheppard" and that Dr. Sheppard "could not have murdered his wife, had no reason to murder his wife and was a victim of a misdirected, overreaching prosecution."

A victory in the suit would clear the way for the Sheppard family to sue for wrongful imprisonment and collect payment — possibly millions of dollars, given the income he lost during his years in prison. Newspapers gleefully looked forward to the "third Sheppard trial."

In February 1996 Gilbert won a court order for Eberling to provide a blood sample so that his DNA could be tested against the blood on the stairs of the Sheppard home and other evidence from the murder scene.

With modern techniques, the blood from the stairs could also be tested against Marilyn's DNA, taken from a sample of her hair preserved as evidence, to test the prosecution contention that that it was her blood dripping from the murder weapon. Gilbert's experts also believed they had Sam's DNA, taken from stamps he had licked in sending love letters to Marilyn before their marriage.

Dr. Mohammed Tahir, a forensic scientist from Indianapolis, ran extensive tests on the samples. In February 1997 he presented his findings.

The blood on the stairs was not Marilyn's. That meant it hadn't dripped from the murder weapon, as police believed. But it could have come from the killer, who Dr. Kirk theorized had been bitten by Marilyn.

The blood apparently was not Dr. Sam's, though it was difficult to tell because the saliva from the stamps had been contaminated. This was not a surprise: There was no indication Sam was bleeding on the murder morning.

The DNA was consistent with Richard Eberling's DNA, a type believed to be shared with only a small percentage of the people in the world (Dr. Tahir would not estimate the percentage; figures quoted in news stories have varied widely).

This was not a surprise to the extent that Eberling had volunteered to police after his 1959 arrest that he had cut his finger while washing windows in the house shortly before the murder — an account contradicted by Vern Lund's dying declaration. But it did establish, if Dr. Kirk's theory was correct, that Eberling's DNA was consistent with the killer's DNA.

The most surprising finding was that testing of seminal fluid taken from Marilyn with a vaginal swab in 1954 showed DNA which matched Eberling's. News reports said there also appeared to be DNA from semen of a second man.

Carmen Marino, the first assistant prosecutor who was a holdover from the Corrigan administration, said he personally had become convinced Sam Sheppard was not guilty. But the office was in a bind; besides its duty to prosecute criminals, it also represented the county in civil matters. It filed motions challenging young Sam's right to bring an action, especially 25 years after his father's death.

While the suit slowly made its way through the courts, young Sam, who was now living in Oakland, Calif., had his father's body exhumed so that a conclusive comparison of DNA could be made. When Sam was reburied, it was next to Marilyn, her family having resolved its doubts about Sam's connection with her death.

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In June 1997 Cuyahoga County Common Pleas Judge Ronald Suster overruled the objections of the prosecutor's office and set the suit for trial. The prosecutor's office appealed.

In January 1998, the Ohio Supreme Court heard oral arguments and took the case under advisement, indicating it would rule in the spring. The following month Judge Suster filed as a candidate for the Supreme Court seat of Justice Paul Pfeiffer.

In March, more than a year after Dr. Tahir's first DNA report, lawyer Gilbert called a news conference to release his latest findings.

Dr. Tahir repeated that the blood on the stairs could not have been Marilyn's but could have been Eberling's.

Having Sam's DNA, he could now say the blood on Sam's pants — which had been assumed to be Marilyn's from when he bent over to take her pulse — did not match Marilyn's but did match Eberling's.

He now said the DNA in the semen appeared to match a combination of Eberling's and Sam's. Sam had told his lawyers before the first trial that he and Marilyn had sex on Friday night, a little more than 24 hours before the murder.

And Dr. Tahir had a surprise: A recent search had turned up additional blood samples saved by Dr. Kirk in 1954. One of them was from the spot which Dr. Kirk said appeared to be the killer's blood, having flown off his hand as he yanked it — along with two teeth — from Marilyn's mouth.

He said it appeared to be a combination of Marilyn's and Eberling's.

However, this was the blood that Dr. Kirk had said was Type O. Eberling's was Type A positive. If Dr. Tahir was right, the Sheppard's original expert must have been wrong. Dr. Tahir's contention was that DNA typing is more accurate than A-B-O blood typing and that the latter was in its infancy in 1954.

Also, Dr. Tahir conceded, the evidence was old and might have been contaminated. That appeared to cast doubt on its admissibility in court. In addition, there might be a problem establishing the "chain of custody" documenting that the recently found sample was the same sample taken by Dr. Kirk in 1954.

Pointing out that the DNA samples were all consistent with Eberling's DNA, Gilbert called on Prosecutor Tubbs Jones to reopen the investigation of Marilyn Sheppard's murder, still unofficially an unsolved crime.

She refused, attacked the DNA findings as inadmissible and accused Gilbert of holding the news conference to influence the Ohio Supreme Court. "Shame on you, Terry Gilbert," she said.

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Spring turned into summer with no ruling from the Supreme Court. Then, in July, Justice Pfeiffer suddenly announced he was recusing himself — withdrawing from the case — because it involved a ruling by Suster, his opponent in the November election.

That meant an acting justice must be appointed, further delaying the decision. Pfeiffer did not say why he had waited five months after Suster announced his candidacy to withdraw.

However, in a column in the Cleveland Plain Dealer, Brent Larkin reported what purported to be the inside story, though he gave no sources whatever.

He said the Supreme Court had taken a straw vote on the case shortly after the January hearing and it was 4-3 to affirm Suster's ruling and let the case go to trial. Chief Justice Thomas Moyer appointed justices to write the majority and minority opinions.

Pfeiffer was one of the three who voted to reverse Suster. But since he was on the losing side, he saw no need to withdraw when Suster announced his candidacy the following month.

But when the draft opinions were circulated, one of the four judges in the majority was so impressed by the minority reasoning that he switched sides. That meant the vote was now 4-3 to overrule Suster and throw out Gilbert's attempt to have Sheppard declared innocent.

Pfeiffer had now cast the deciding vote. (Of course, the same thing could be said about three of his colleagues.) He might even, Larkin noted, have been the author of what was now the majority opinion in a politically explosive case. He withdrew.

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On July 25, Richard Eberling died in prison at the age of 68. He was subsequently reported to have told fellow inmates that (1) Sheppard had hired him for $1,500 to kill Marilyn but didn't pay him after he did it; (2) he raped and killed Marilyn, wearing a wig so as not to be recognized by Sheppard, and when Sheppard came to her aid knocked him out twice; (3) Esther Houk killed Marilyn and Spencer Houk and Sheppard covered up for her — the same story he told Sheppard's son in 1990.

Since he was the last of the suspects still alive, Eberling's death ended any chance that there will be another criminal trial. But the civil suit filed by Sheppard's estate was still alive. In July 1998, Chief Justice Moyer named Richard Knepper, an appeals judge from the Toledo area, to replace Pfeiffer.

On November 3, Pfeiffer defeated Suster to keep his Supreme Court seat. Tubbs Jones was elected to Congress to replace the retiring Louis Stokes.

On December 2 — 11 months after arguments were heard, but more significantly a month after the election — the Ohio Supreme Court announced its decision on whether the case should continue.