Popular Crime

by Bill James

  1) The court’s failure to distance or isolate itself from a hysterical media onslaught,

  2) Too much attention being paid to Sheppard’s marital infidelities,

  3) The failure to deal with forensic evidence which tends to argue his innocence, and

  4) The dismissal, in his original trial, of other evidence that tends to exonerate him.

  And there are other issues, kind of petty issues … I guess I’ll deal with the petty issues first; the case is so famous that many of you probably know all of the issues. The Cleveland coroner, Dr. Samuel Gerber, was probably the nation’s most famous coroner at that time. The Sheppards were D.O.s, Doctors of Osteopathy. There is a long history of distrust between the osteopathic community and the medical establishment, and there were allegations that Gerber had expressed hostility toward the Sheppards, who were highly successful osteopaths.

  In the trial, Gerber—who obviously thought Sheppard was guilty, and had to a large extent engineered the prosecution of him—testified that a bloody imprint on a pillowcase had apparently been made by some kind of surgical instrument. This was untrue, and this was used by journalists in the years after the trial, and eventually by F. Lee Bailey, in court, to make it appear that Gerber was out to get the Sheppards all along.

  But I don’t think he was, and I don’t think that whole angle amounts to anything. Gerber thought that Sheppard had committed the crime, and was out to get him in the same sense he was out to get any other murderer. He said the murder weapon was a surgical instrument of some kind because he thought it was. He was wrong about this, and he shouldn’t have said it, but it was a few words out of a long trial in which both sides said things they probably shouldn’t have said. I don’t think it had anything to do with Sheppard being convicted. A juror insisted that this was never mentioned in jury deliberations.

  A witness reported seeing a bushy-haired man outside the Sheppard residence that night, probably just before the attack, and another witness saw a man walking away from the house later, probably after the attack. The jurors, for reasons known only to them, paid no attention to this testimony.

  After the trial was over Sheppard’s attorneys arranged for Dr. Paul Kirk to examine the crime scene. Dr. Kirk was the nation’s leading criminologist, crime scene investigator; he is to that field what Einstein was to physics. (In modern terminology he would probably be called a criminalist.) Dr. Kirk found evidence in the blood spatter that the murder weapon had been wielded left-handed, that the death blows had been struck by a man swinging something—a lead pipe, a flashlight, something like that—full throttle left-handed. Dr. Sheppard was right-handed.

  From my standpoint, it is almost impossible to understand how Dr. Kirk could be wrong about this. Play along with me here. Stand up, and brace your knee against the desk, or against the chair you are sitting in … whatever. Face the desk/chair, and pretend that you are beating the living hell out of something sitting in the middle of it, left-handed. Pretend you have a billy club in your hand, and you are swinging it full force at the skull of a person lying in front of you.

  Now, look at where the blood would fly off your club as you draw it back and swing it forward time and again. Look at the ceiling, the wall, the furniture … look where the blood would fly to.

  Now do the same thing right-handed, and ask yourself: studying the blood pattern, could you make a mistake about whether this was done right-handed or left-handed? You can’t. The difference between the blood spatter pattern if the murders were committed left-handed as opposed to right-handed is unmistakable. Sheppard was right-handed; the murder was committed left-handed.

  Dr. Kirk also claimed that the forensic evidence clearly showed that Marilyn Sheppard bit her attacker’s hand, and that the murderer would have had injuries to his hand in the days after the murder. He based this on Marilyn Sheppard’s broken teeth, which were not broken in, but pulled out as if she had bitten her attacker very hard, and also on the analysis of certain of the blood spots in the bloody bedroom, which he said had characteristics inconsistent with Marilyn Sheppard’s blood, although they were of the same blood group. Dr. Sheppard had no such injury to his hand on the day after the murder.

  This information certainly should have been introduced at the trial, but the onus of that failure is on Sheppard’s defense team. Sheppard’s attorneys argued that the police locked up the house in which the murder occurred and denied them access to it until after the trial, and also that the dog ate their brief in which they were going to demand access to the house.

  What happened, I think, is that Sheppard’s lead attorney, William Corrigan, thought that he could beat the case without taking on those issues. He thought, correctly, that the police didn’t really have much of a case against Sheppard, and he thought, incorrectly, that he could beat them. When he lost, he went into CYA mode, calling in Dr. Kirk to do what should have been done before the trial. The appeals courts ruled—correctly, in my view—that this was not newly discovered evidence in the legal meaning of the term, since it could have and should have been discovered by Sheppard’s defense before the trial, and that Corrigan was simply trying to use this tactic to get a do-over. Sheppard’s defenders have claimed, in response to this, that the police had locked up the crime scene and denied them access to it until it was too late. That’s ridiculous. The police commonly and appropriately lock up a crime scene until the case is resolved, and they obviously could not have denied Sheppard’s defenders access to the scene had access been demanded. The failure to demand access was an incredible blunder by Sheppard’s attorneys, and one that kept him in jail for many years.

  The court’s failure to insulate itself from the Cleveland press coverage, which created what an appeals court described as a Roman circus, was certainly a blatant and serious failing of the trial.

  The prosecution argued that Sheppard wanted Marilyn out of the way because he was having really fun relations with a knockout named Susan Hayes. This also did not sit well with Sam’s defenders. “The Susan Hayes matter,” wrote Margaret Parton of the New York Herald Tribune in the middle of the trial, “was blown up way beyond its importance.” Lawyers like to say that it is one thing to commit adultery, a very different thing to commit murder. Evidence that a man has committed adultery does almost nothing to prove that he is capable of murder.

  I see this a little differently. To me, it seems an extremely relevant issue, for this reason: that a man who is involved with another woman is dozens if not hundreds of times more likely to murder his wife than is a faithful husband. As anyone who follows crime stories has to know, men who kill their wives in cold blood are almost always involved with another woman, so much so that it is hard to come up with an exception. Cherchez la femme. Where there is a Scott Peterson, there is always an Amber Frey.

  Set it up as a story problem:

  A. What percentage of husbands are at any one moment involved in extra-marital affairs?

  B. What percentage of husbands who kill their wives in premeditated plots are involved in extra-marital affairs at the time?

  C. Knowing “A” and “B,” how much more common is it for a cheating husband to kill his wife than for a faithful husband?

  Using any kind of reasonable assumptions, it is apparent that for a philandering husband to kill his wife has to be at least twenty times more common than for a faithful husband to kill his wife, at a very minimum. In reality, the number is probably much larger than that. So, to me, it seems very relevant whether or not a suspected husband has been recently faithful to his late wife.

  In any case, over the years the pendulum of public opinion swung gradually in Dr. Sheppard’s favor. In 1954 virtually everyone in Cleveland was convinced that Sheppard was guilty. The newspapers had said so several times a week for months. Paul Holmes wrote a book about the case in 1961, The Sheppard Murder Case, essentially arguing that Sheppard had not received a fair trial. Other books followed, including two more by Holmes.

  Beginning in 1963 there was
a TV show—a really good TV show—called The Fugitive, which used the story of Sam Sheppard as a framework for the story of a heroic doctor, fleeing justice and saving lives on a weekly basis. The Fugitive grafted onto the outline of Sam Sheppard’s tragedy the image of a doctor who was modest, sensitive, selfless and honorable, and hadn’t been banging the nurses. This improved Sheppard’s public image immensely.

  Paul Holmes was a lawyer as well as a journalist. As a consequence of his books he became a participant in the story. About 1963 Holmes introduced a young attorney, F. Lee Bailey, to the Sheppard family, and after that acted as an aide to Bailey.

  Bailey discovered new avenues of appeal, and eventually landed his case in front of the Supreme Court, the big one in Washington. The Supreme Court ruled that the trial court had failed its responsibilities by making minimal efforts to protect the trial from prejudicial publicity. This became an important precedent, laying out for the first time a court’s responsibility to make a trial stand clear of flying journalistic debris. They ordered a new trial for Dr. Sam, or else that he be set free.

  The city of Cleveland didn’t really have their heart in the new trial, but they decided to go through the motions anyway. They dropped the Susan Hayes angle altogether, leaving Sam with no apparent motive to murder his wife. In the first trial the prosecution had claimed that Sam’s injuries, suffered on the night of the murder, were trivial and/or fake. They got beat on that issue, so in the re-trial they just dropped it, and allowed Sam’s lawyers to claim without challenge that his injuries were more serious than they probably were. They (the prosecution) came up with an entirely new and entirely improbable theory of how he had sustained these injuries. Although they had had eleven years to review Dr. Kirk’s analysis of the crime scene and prepare to rebut it, they didn’t seem to have a clue what to say about that, probably because most of what Dr. Kirk said was true, and they would have looked stupid trying to prove that it wasn’t.

  In spite of all this, the re-trial was not quite a slam dunk; on first ballot, four or maybe five jurors still thought Sheppard was guilty. Unable to point to any facts supporting his guilt, their position weakened as the jury debated, and eventually the jury voted to acquit Dr. Sheppard, but The Fugitive was cancelled anyway, and did poorly in re-runs.

  I have read four books about the Sheppard case, which are The Sheppard Murder Case, by Paul Holmes (McKay, 1961); Retrial: Murder and Dr. Sam Sheppard, also by Holmes (Bantam, 1966); Mockery of Justice, by Cynthia L. Cooper and Sam Reese Sheppard (Onyx, 1997); and The Wrong Man, by James Neff (Random House, 2001).

  There are at least three books about the Sheppard case which I have not read, which are Dr. Sam: An American Tragedy, by Jack Harrison Pollack (1972); Endure and Conquer: My Twelve-Year Fight for Vindication, by Sheppard himself (1966); and My Brother’s Keeper, by Stephen Sheppard and Paul Holmes (1964). There is also information about the Sheppard case in many other books, including Murder One, by Dorothy Kilgallen (Random House, 1967), and The Defense Never Rests, subtitled, “Man, I Was Hot Shit,” by F. Lee Bailey and Harvey Aronson (Stein & Day, 1971).

  Holmes’ first book about the case is a lucid, straightforward account of the matter as it stood in 1961, seven years after the original events. It’s the best starting point if you want to read about the case; the other books assume too much knowledge, and tend to be confusing.

  Mockery of Justice is the story of Samuel Reese Sheppard, the little boy who slept through the murder, and his lifelong efforts to blame everybody but his father for what happened. This book assumes that Dr. Sheppard is innocent, as a starting point, and advances the theory (among many others) that the real murderer may have been Richard Eberling, a man who washed windows at the Sheppard house and was convicted of murdering an elderly lady in the 1980s.

  Sam Reese Sheppard endured a tragedy almost beyond comprehension. It is not reasonable to expect that he would get over this and move on with his life, and he never did. But the book is essentially whining. Mockery of Justice never engages the evidence against Dr. Sam, but instead simply re-writes the facts to fit one theory and then another. Their re-telling of Dr. Sam’s story makes it appear that he gave a description of an assailant who could well have been Richard Eberling—ignoring entirely Sheppard’s actual story at the time, or the fact that, years after the murder, Sheppard was still suggesting that he thought there probably were multiple assailants, one of them a woman.

  There is a simple theory to explain what happened in the Sam Sheppard case which seems to me to accommodate all of the facts which can be clearly established. That theory is that Richard Eberling did in fact murder Marilyn Sheppard—at the behest of and with the aid and assistance of Sam Sheppard.

  All of the books about the Sheppard case argue that he was innocent—but none of them deal fairly with the real reason that he was convicted, which is the rank implausibility of Sheppard’s story. Bluntly stated, Sam Sheppard’s account of the night Marilyn was murdered just doesn’t make any frigging sense. It didn’t make sense to the police who investigated the case, it didn’t make sense to the prosecutors, it didn’t make sense to newspaper guys, it didn’t make any sense to the judges, and it doesn’t make any sense to me. If you read between the lines of the court opinions which rejected Sheppard’s appeals throughout the second half of the 1950s, that’s really what they’re trying to say: this guy’s story doesn’t make any sense.

  What is wrong with his story? Well, first of all, is there one intruder or two? Sheppard never exactly said for sure, either because he didn’t know or because he was keeping his options open, but in the main, he suggests that there were multiple intruders—first, because he thinks the intruder is wearing a light-colored shirt in the upstairs bedroom and a dark shirt on the beach, second, because the intruder seems to be simultaneously in the bedroom with Marilyn and attacking Sheppard as soon as he reaches the top of the stairs, and third, because the fleeing suspect immediately gains the advantage on him as soon as he reaches the bottom of the stairs down to the beach.

  Over the years that followed, Sheppard became more and more explicit in suggesting that there were multiple intruders—an intruder, he says, and (I swear I am not making this up) an “intrudress.” Sheppard never actually says that there are two intruders … it’s just that it is dark, and he is groggy, and he never sees anything clearly, and he doesn’t have any clear idea what’s going on.

  OK, fair enough; it’s dark, he’s groggy, he doesn’t know. I’ll accept that. Let’s assume on first look that there is one intruder, because

  a) There is no evidence of a second intruder,

  b) Sheppard’s defense witnesses, who claim to have seen a bushy-haired man outside his house at 2:30 and 4:15 in the morning, both reported seeing one man, not two,

  c) It’s really irrational behavior for two people,

  d) If we assume that there were two perpetrators it becomes much more likely that one of them would later have told the police about it,

  e) Sheppard’s modern defenders have settled on Richard Eberling as the culprit, rather than Richard Eberling and his grandmother Ethel, and

  f) It’s just the sort of thing one usually does alone. I mean, personally, whenever I break into my neighbor’s house and beat his wife to death in the middle of the night, I always do that sort of thing alone.

  Anyway, the second question which arises is, “What was this guy who broke into the house after?” Did he break into the house intending to kill Marilyn? If so, why? Was he a burglar who was surprised by Marilyn’s awakening and screaming, and over-reacted? Did he start to commit a sexual assault, and get carried away in violence when Marilyn screamed? Why did this happen?

  From Sheppard’s account of the crime, none of the answers make sense. If he was a burglar, why didn’t he take anything of significance? If he was a burglar and Marilyn woke up and discovered him, why didn’t he just hit her on the head with his lead pipe or whatever it was and get the hell out of there?

  If he was the
re to commit murder, why did he rifle through some drawers downstairs before or after the crime? If he was there to commit murder, why did he let Sam Sheppard alone after knocking him out with his first blow? Why didn’t he kill Sam, too—either then or later, when he had him unconscious again on the beach?

  If he was there to commit a burglary, and we assume that he must have had a flashlight with him to find his way around, how did he not notice Sam Sheppard asleep on the living room couch? Or did he notice Sheppard there, and decide to go upstairs and murder Sheppard’s wife anyway?

  The essential theory advanced by Sheppard’s defenders is that the intruder was a burglar—had to be, because drawers were rifled through—who discovered Marilyn, thought she was alone, attempted to assault her sexually, and went berserk when she woke up and screamed. The intruder is kind of a little bit of a burglar and a little bit of a would-be rapist, but the only thing he really does is commit murder—and he does that really well. He’s thorough about that one.

  But again, I’m 100% willing to give Sheppard a complete pass on these puzzling questions, because

  a) Criminals often do things that we don’t understand, as do life insurance salesmen and football coaches, and

  b) It’s not the victim’s responsibility to explain the conduct of the criminal.

  It might make perfect sense if we had better knowledge of what had happened.

  But now we get into the nitty-gritty of the crime: the sequence of events. Did the rifling of the drawers downstairs occur before the murder, or after?

  Well, obviously it seems massively unlikely that it could have occurred after the murder, for three reasons:

  1) There would be blood all over the drawers,

  2) By this time the burglar quite certainly knows that there is a man in the house, and that that man knows that he is in the house. He would have to assume that the police may have been called, and