Sunday, January 30, 2000

Sheppard murder returns to court


This case puts the legal system on trial

BY JOHN AFFLECK
The Associated Press

        CLEVELAND — One of America's epic criminal cases, the murder conviction of the late Dr. Sam Sheppard, is set to begin what may be its final act this week.

        The 1954 beating death of Dr. Sheppard's pregnant wife, Marilyn, already has led to two trials and a landmark U.S. Supreme Court ruling and partly inspired The Fugitive TV series and film.

        A third trial is scheduled to start Monday before Cuyahoga County Common Pleas Judge Ronald Suster. After motions are argued and a few more witnesses deposed, jury selec tion could begin by week's end.

        As in the previous two Sheppard trials, much will be at stake as the testimony unfolds. But this case won't just be about an ultra-sensational murder or the rights of the media vs. those of a criminal defendant.

        This trial will cut to the question of whether the criminal justice system is capable of terrible mistakes. And, if it makes errors, can the system be held accountable to the people whose lives are ruined by bad verdicts?

        “The legal system has this image that it's fair — that it can do no wrong,” said Sam Reese Sheppard, the Sheppards' only child, who is suing Ohio for wrongful imprisonment of his father.

        “At the same time it has no mechanism to clear anybody's name for posterity. The police, the prosecutors, the politicians can literally destroy people's lives and walk away and say, "We weren't wrong.' That's why I feel this case is very important to American history.”

        Mr. Sheppard, 52, was 7 years old when his mother was

        killed — her skull fractured and her blood splattered in a bedroom down the hall from where the boy slept.

        The younger Sheppard watched as his father was convicted of his mother's killing, served 10 years in prison before an acquittal at retrial and, in his son's words, was “vilified, degraded, humiliated and literally destroyed.”

        Broken financially and in spirit, the doctor died in 1970 of liver failure.

        His family's ordeal turned Mr. Sheppard into an activist both for promoting his father's innocence and doing away with the death penalty — the latter being the result of the terror he felt at the thought of his father being executed.

        Now Mr. Sheppard's attorneys will try to win what's called a declaration of innocence for his father by convincing at least six of eight jurors that it is more likely than not the doctor was innocent.

        If Mr. Sheppard wins, the case moves to the state Court of Claims, where damages estimated at about $2 million could be awarded to him as his father's heir.

        Leading the state's defense is Cuyahoga County Prosecutor William Mason, 40, who wasn't even born when the murder happened. He has become convinced through his study of the case that the first prosecutors had the right man.

        But he agrees with Mr. Sheppard that, because of its long history and many twists, the case is a symbolic test of the American criminal justice system.

        “I mean this: I think we've got the greatest system of justice in the whole world. There may be some flaws in this system but it's still better than any other,” Mr. Mason said. “The people before me in this case who presented evidence worked in good faith and to the utmost of their ability. They deserve to have their work looked at with an open eye.”

        The first Sheppard trial was among the most celebrated of the 1950s, combining an unlikely victim — a suburban housewife — with sexual intrigue and a handsome, well-to-do defendant.

        Mrs. Sheppard was killed early on the morning of Independence Day at the family home on Lake Erie. She was found with her pajama top pulled up and the bottoms pulled down.

        Investigators immediately suspected her husband, who had fallen asleep the night before on a bed downstairs while guests visited the couple.

        Suspicion increased when Dr. Sheppard was later caught lying about an extramarital affair he had with a lab technician at his hospital.

        Newspapers demanded Dr. Sheppard's arrest with headlines like “Quit Stalling — Bring Him In,” “Why Isn't Sam Sheppard In Jail?” and “Getting Away With Murder.”

        The doctor, meanwhile, always stuck to an alibi that prosecutors find incredible to this day. Dr. Sheppard said he was still downstairs when he was awakened by his wife's cries. He ran to help her but was knocked out by a “bushy-haired intruder” — the figure that evolved into the “one-armed man” of The Fugitive.

        Dr. Sheppard said he saw the assailant running toward the lake and chased him but was knocked out again.

        After an inquest where Dr. Sheppard's attorney was thrown out of the room, the doctor was arrested, convicted of murder in December 1954 and sentenced to life in prison. Dr. Sheppard's mother shot herself within weeks of the verdict and his father soon died, too.

        But the doctor endured. He won release 10 years later when defense attorney F. Lee Bailey convinced a federal judge that the doctor's right to a fair trial was trampled when the original trial judge failed to shield the jury from waves of negative stories about Dr. Sheppard.

        The case was appealed to the Supreme Court, which also sided with Dr. Sheppard and ordered a new trial in 1966. This time, the doctor was acquitted.

        In the latest trial, Mr. Sheppard's lawyers will have to meet a tougher standard of proof than the simple “not guilty” at the criminal trials.

        They will likely try to do that by using DNA collected from blood evidence to exclude Dr. Sheppard from the bedroom where the murder took place.

        Lead Sheppard lawyer Terry Gilbert will also implicate Richard Eberling, a window washer for the Sheppards in 1954, as the killer, both through DNA evidence and confessions Mr. Eberling allegedly made to several people, none of them police.

        Mr. Eberling died in 1998 while serving a life prison sentence for another murder.

        Prosecutors will attempt to tear into the Sheppard alibi and show that the severe beating inflicted on Mrs. Sheppard fits the profile of a slaying committed in passionate rage, not one committed by a psychotic rapist, as Mr. Eberling will be portrayed to be.

        With a witness list of more than 100 names, and portions of the first two trial transcripts to be read to the jury to make up for long-dead witnesses, the trial is expected to take at least six weeks.

        In the end, will Mrs. Sheppard's killer be revealed once and for all?

        Her son believes it already has been and the answer is Mr. Eberling.

        Mr. Mason said the complete truth about July 4, 1954, may never be known. But the trial, he said, will find “the closest thing to it.”

       



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