Do No Harm

by Max Allan Collins

  “If I fly to Chicago,” he said, skipping any greeting, “can you have supper with me this evening?”

  “Sure. What’s up?”

  “Make a reservation. George Diamond’s?”

  “George Diamond’s it is, Erle. Seven o’clock?”

  “Six.”

  “Sheppard case again?”

  “Yes, goddamnit.”

  He said goodbye and hung up.

  This was probably not good news—he’d been scheduled today to go to the Ohio State Penitentiary in Columbus for the polygraph examination of Dr. Sam. With him were Alex Gregory, John E. Reid, C. B. Hanscom, and Dr. LeMoyne Snyder, the group that had made the lie tests with the Sheppard brothers and their wives. With Gardner himself present this time, I hadn’t been needed.

  So a little before six, I was shown to a booth in back reserved for my guest and me in the legendary Chicago steakhouse on South Wabash. The place had a decidedly masculine feel with its dark paneling and rich red carpet, chairs and booths, although the framed paintings by Walter Keane of sad-eyed kids and sadder clowns seemed more inclined to please the fairer sex. Colored chefs were broiling steaks over charcoal in brick ovens, right out in the restaurant, providing a smoky aura that swallowed up tobacco fumes.

  I ordered a vodka gimlet, which arrived just before Gardner, shown to the booth by a red-jacketed waiter.

  “Bring me a bourbon straight up,” Gardner told the waiter. “Four Roses Single Barrel.”

  “Yes, sir.”

  The mystery writer, normally rather genial, wore a sour expression; also a brown suit with a tan shirt and a Western-style bolo tie, with a golden horse’s head gripping the rawhide strands. He looked like a rancher who’d just been grossly underpaid for his herd by George Diamond himself.

  “They turned us away, Nate,” he said, sliding in across from me. “The whole damn team!”

  I blinked at him. “Why in hell?”

  He tossed a hand in the air. “The governor withdrew his permission, without notice. We were on the damn grounds of the place when they kicked us out!”

  “Getting tossed out of prison,” I said, after a sip of gimlet, “is a pretty good trick. I thought you said Governor O’Neill was enthusiastic about the polygraph—happy to give Sam a chance to prove he’d been telling the truth all along, and maybe help bring the real killer to justice.”

  The waiter returned with Gardner’s bourbon and took our order. We both got the filet mignon.

  “All I know for a certainty,” Gardner said, then paused to toss back some bourbon, “is permission was withdrawn. Warden Alvis himself turned us away, and he’d been all for it! These distinguished men, experts in their fields, invited by the governor personally, traveling hundreds of miles to get there … only to be turned away.”

  “Pressure from Gerber?”

  His grunt wasn’t exactly a laugh. “Not just Gerber. The original judge in the case, Blythin, made a public statement. A friend at the Associated Press told me it was going out on the wire—Blythin said something to the effect that Court of Last Resort was putting itself above the Ohio and United States Supreme Courts.”

  Blythin. Who had, in his chambers, told Flo Kilgore that the case was open and shut—that the man who would momentarily be standing before his docket was guilty as sin. I wanted to share that with Gardner, but without betraying Flo, I couldn’t. Damn. Shit!

  “Don’t give up hope, Erle,” I said. “I told you about my talk with Prosecutor Cullitan. Maybe we can convince him to come forward.”

  He frowned, cocked his head. “Nate, haven’t you heard? Frank Cullitan died last night—in the hospital. Heart attack.”

  Hell.

  Our salad came. This was my favorite salad in the Loop—half a head of lettuce, crisp and cold, coated with crushed croutons and particularly delicious when drenched by the three house dressings mixed together. But I ate slowly, with no enthusiasm. Gardner, however, attacked his half a head as if it were Gerber’s.

  We ate in silence, and then I asked, “So what next? I’d like to talk to Hardmann, who seems a good, overlooked suspect. He’s in California. While I’m out there, I could talk to Sharon Kern. She’s no suspect, but as the ‘other woman,’ she would be—”

  He raised a fork. Like a gladiator raising a trident. “No,” he said.

  “No?”

  He lowered his fork and leaned in. “That’s why I wanted to speak to you in person. I had no other reason to make a stop at Chicago. You’ve worked hard on this matter, and it’s cost you time and money. You have a right to hear me say it.”

  “Say what?”

  He swallowed a bite of nothing, which seemed not to taste good at all. “That we have no alternative but to withdraw. I’m officially announcing the Court of Last Resort is dropping its investigation into the Sheppard case until or unless it becomes possible to examine him by polygraph.”

  “Erle, don’t take this personally. This is just Ohio politics. More than just Gerber and Blythin weighed in on this thing, behind the scenes, you can bet on it.”

  His jaw was set, his eyes piercing. “But I do take it seriously, Nate. My integrity, and that of my colleagues, has been unfairly maligned. Some damn Ohio politicians cussing me out doesn’t bother me. But the Court of Last Resort itself has taken quite a lot of undeserved abuse. We’re left with picking up the pieces and going back to making our respective livings.”

  Not meaning to malign him unfairly even further, I had to think part of his funk came from the embarrassment the affair would mean to NBC and the new Court of Last Resort TV program. But I kept that to myself.

  “We will fold our tents like the Arabs and noisily steal away,” he was saying. He finished his bourbon. “You know, Nate, no one on the Court of Last Resort ever announced a belief that Dr. Sheppard is innocent. We did state we felt the case should be investigated thoroughly. We did give our opinion that his two brothers and their wives had absolutely no knowledge that would indicate Dr. Sam is guilty. Nor did they do anything to obscure evidence.”

  “An opinion,” I said, “based on rigorously controlled polygraph testing.”

  “Right! And the conclusions that were reached were either true, or else we’d better throw all of our polygraphs in Lake Michigan and forget about them.”

  Our steaks arrived, as well as baked potatoes with butter and sour cream. Gardner was definitely a meat-and-potatoes man. When he carved into the rare, football-size filet, the blood ran, and his attack on the thing showed he’d not lost his appetite for the fight.

  But this round was clearly over.

  * * *

  I heard from Gardner a few times by phone in the coming weeks.

  He reported that Sam’s lawyer, Corrigan, had gone to DeLand and brought back a signed confession from Weed.

  And a couple of things had come up that seemed to support the young convict’s story—he’d claimed he hocked one of the suitcases he’d hauled along on his hitchhiking; a bartender who had then been working at the pawnshop in question remembered both Weed and the “grip.” The “elderly man” remembered picking Weed up, hitchhiking. A woman recalled seeing a dirty dark blue car parked down from the Sheppard place.

  None of it carried any weight with the Ohio authorities. Gardner talked to the press about the Cleveland police and their uncooperativeness. It didn’t go anywhere.

  As for Gary Weed, Sheriff Thursby reported to Gardner that the young man had been a model prisoner in his jail, before heading to Raiford Prison, where he’d be eligible for parole in five or six years.

  For now, the kid who wasn’t an addict but shot up on heroin, from time to time, was working in the prison hospital.

  Like Dr. Sam was, back in Ohio.

  – BOOK TWO –

  FACT FINDING

  1966

  CHAPTER

  12

  “When Sam Sheppard first stood trial,” F. Lee Bailey said, “I was flying Sabrejets for the Marine Corps.”

  The attorney, bull-nec
ked, broad-shouldered, bore a burly form worthy of a football guard, mitigated by a three-piece tailored navy blue pinstripe suit and gold watch chain.

  “At the time,” he went on, “the case, despite its notoriety, made no particular impression on me. And Sam had been in jail six years by the time I was licensed to practice law.”

  With his resonant voice, shrewd squinty eyes, and a self-confidence too cool to be considered arrogance, Bailey made fascinating company. And with his widow’s-peaked dark hair and squared-off oval of a face, his brow almost permanently creased in thought, he had the bearing of a defense attorney in a Hollywood film, though much younger at thirty-three than Jimmy Stewart in Anatomy of a Murder or Charles Laughton in Witness for the Prosecution.

  “It’s been a long road,” he said, with the slight smile that was his equivalent of a grin.

  Shortly after the death of Sam Sheppard’s defense attorney, William Corrigan, in July 1961, Bailey became Dr. Sam’s new lawyer. I had made the recommendation to Steve and Richard Sheppard myself, based on my acquaintance—friendship might be overstating it—with Bailey, who worked out of Boston but made a trip to Chicago every other month to lecture at the Keeler Polygraph Institute. When I met him in ’61, the young attorney was already a well-established examiner in that field.

  That recommendation, and a few minor related jobs for Bailey, was the extent of my involvement with the Sheppard case, over the last nine years. Erle Stanley Gardner, though he made occasional public statements about the unfairness of Sheppard’s incarceration, had divorced himself not only from the case but the Court of Last Resort itself. Pro-Sheppard articles continued to appear in Argosy, but without Gardner’s input. The failure of the Court’s TV show, added to the Sheppard debacle, had put a damper on the entire enterprise.

  Meanwhile, Bailey had been doing battle with the Ohio authorities ever since he took Dr. Sam on as a client. In April 1963, the attorney filed a habeas corpus petition in U.S. District Court, asserting that prejudicial publicity before and during the 1954 trial violated Dr. Sam’s due process. In July ’64, a District Court judge declared the 1954 trial a “mockery of justice,” in violation of Sheppard’s Fourteenth Amendment rights, and ordered his release. In March 1965, the State of Ohio appealed the ruling, which was reversed.

  But earlier this month, by an 8–1 vote, the United States Supreme Court concluded that Bailey was correct: Sam Sheppard had not received a fair trial, and the murder verdict was declared invalid.

  “I have to admit to being surprised,” Bailey said, “that the state intends to retry Sam.”

  He was alternating between puffs of his Pall Mall and sips of his Scotch and water. We were in a booth on the third floor of the Playboy Club, in the VIP Room, which provided the only real privacy in Hugh Hefner’s Walton Street monument to his magazine’s lifestyle (Argosy would have had a hunting lodge).

  “I really didn’t think they’d bother trying Sam again,” the attorney went on, “but the prosecutor—John Corrigan, no relation to the late William—was ready with a speech to read in front of the cameras the moment the Supreme Court decision was made public.”

  In a way the prosecutor’s manipulation of the press was Bailey’s own fault: for years the defense attorney had fought for Dr. Sam not just in the Ohio and U.S. courts, but in the court of public opinion. He’d lectured at colleges and before civic groups; sometimes accompanied by Steve Sheppard, Bailey had gone on radio and television, stirring up petitions and letter-writing campaigns to several Ohio governors.

  Early on, when he was trying to land a polygraph test for his new client, Bailey had gone to see Louis Seltzer to ask for fair treatment and support in return for press access. He met Seltzer in his office, flanked by the man’s city and managing editors. He said his piece, then was subjected to derision by the two editors, Seltzer just listening and smiling as Bailey was told he was “a fresh kid” seeking publicity, who wouldn’t “last two weeks as Sheppard’s lawyer.”

  Ignoring the editors, Bailey reminded Seltzer, “You’re an old man,” while Bailey was a young man. For all the publisher’s influence and money, the lawyer intended not only to beat him, but humiliate him. Seltzer had better die before then, because his public image would be destroyed when Bailey was done. This was the price of turning away an attorney who only asked for reasonable treatment for himself and his client.

  At least that was the way Bailey had described the encounter to me.

  In the years since I introduced him, by letter, to the Sheppard brothers, Bailey had risen from a civil litigation attorney fresh out of law school to the most famous criminal defense attorney on the planet, representing such notorious clients as Albert (“the Boston Strangler”) DeSalvo, accused wife killer Dr. Carl Coppolino, and the Plymouth Mail Robbery suspects. He owned and flew his own planes and made use of the latest James Bondian security and communications gadgetry.

  We’d had a late supper—trout for me, filet for the attorney—and now were getting around to why Bailey had wanted this audience.

  “You may wonder why I haven’t called upon you and the A-1,” he said, “more often in the Sheppard case. After all, you started the ball rolling, introducing me to the Sheppards.”

  “I haven’t wondered,” I said. And hadn’t cared. I’d had my fill of that mess.

  “We’re both marines,” he said, “and I’m an ex-PI myself. So I know who you are and what the A-1 represents.”

  I lifted my gimlet and worked up a smile. “Semper fi, mac.”

  His mouth formed kind of a kiss of amusement. “After all, they based Peter Gunn on you, didn’t they?”

  “Wouldn’t go that far. Got a consultant credit and small check per episode, though. Is Sam getting anything for The Fugitive?”

  The wildly popular David Janssen TV show about a doctor wrongly convicted for killing his wife, only to escape on his way to prison, had debuted in 1963.

  “The creator denies it,” Bailey said. “He claims it’s a modern-day Les Misérables, but everyone knows what it’s really based on.”

  “Why don’t you sue?”

  Now the smile turned small and sly. “Because that program has done more for Sam in the arena of public opinion than all of my efforts put together.”

  I sipped my gimlet, smiled a little. “Did you know The Fugitive and The Untouchables are produced by the same guy?”

  “I hadn’t really thought about that,” Bailey said. “You knew Ness—toured the damn murder house with him.”

  I nodded. “And Eliot lived on the other side of the park from the Sheppard house, essentially next door, during his Cleveland days. Now they both have TV shows from the same source. Try selling a coincidence like that to a jury.”

  His eyebrows briefly rose. “No thanks. But what I’m getting around to, Nate, is that I haven’t been neglecting you in this matter.”

  “I didn’t think you had. I gave you all my case notes—I knew Erle Gardner wouldn’t mind. But all of that work was pro bono, and I don’t imagine the Sheppards have much money to spend at this point. And I’m not anxious for a contingency job.”

  He raised a hand as if swearing in. “Wouldn’t ask that. I’m bankrolling this thing myself, except for expenses. When the time comes, I’ll charge Dr. Sam a whopping fee. There’s already a book, being ghostwritten for him, and I just know a movie will come of all this.”

  “So you do want to hire me?”

  Unspoken, the word “finally” seemed to attach itself to the end of that question.

  He let out smoke in a moody stream; he was as good at that as Bogie. “I haven’t really needed you till now, in any major way. Would you agree with me that Steve Sheppard is the brains and backbone of the family?”

  “I would. Richard is no dummy, not by a long shot, but Steve’s the aggressive one. The fighter.”

  Several small nods. “Right. And if his brother had killed Marilyn, Steve would know it. He would have gotten the truth out of him. Sam is very intimidated by Steve.�
�

  “Agreed.”

  His head tilted down and his eyes came up. “And if Steve secretly knew that Sam had done this thing, do you believe for a second that Steve would put himself and the whole family through all this?”

  “No.”

  “Neither do I. That’s why I’ve known from almost the start that Sam is innocent. So you might wonder why I haven’t spent more time on finding out who the real killer is—why I haven’t turned somebody like Nathan Heller loose on it.”

  “Sure,” I said with a shrug, though I hadn’t really given that any thought.

  “From a legal standpoint,” he said, with a smile so small and quick it barely took hold, “the fact of Sam’s innocence is of no help at all to him. All the factual questions were settled by the jury that convicted him. If a jury errs, their mistake can’t be corrected, not on the basis of fact. New evidence, at that particular stage, was irrelevant. The only way Sam could slip out from under that verdict was through an error of law.”

  I nodded. “It was all about the way laws had been applied in his case. And not applied.”

  “Yes! And in this case, by way of an outrageous violation of the Constitution. Actually, twenty-two of them.”

  I knew many of them.

  Sam had been arraigned without his attorney present. The Cleveland Press had maliciously implicated Sam in the murder, and criticized law enforcement for not making an arrest. A change of venue had been denied. Motions to postpone the trial until the prejudicial atmosphere had waned were denied. The names of jurors were published a month before the trial began. The jurors were not sequestered. The judge neglected to warn jurors to disregard rumors, opinions and other pressures. Both the judge and prosecutor were running for reelection and bowed to the wishes of the press. Sam’s home was impounded, keeping the defense from attaining evidence there. And two police officers had testified that Sam refused a polygraph exam, prejudicing the jury further.

  “Did you know,” Bailey asked, after another sip of Scotch, “that our old friend Samuel Gerber has gone public with a recommendation to the state attorney general that Sam be granted parole? I must be making him nervous.”