Perhaps the most thorough and well-balanced of the Sheppard trials was the one held long, long after Marilyn Reese Sheppard’s death. In the first installment of this article, we discussed the first trial of her husband and accused killer, Sam, some of the questionable decisions made by the trial judge, and the media circus that surrounded it; we also explored briefly his retrial in the 1960s where the evidence intended to prove Sam’s motive was kept from the jury and where the science of the time, much of which has been debunked over the roughly 40 years since the retrial, favoured Sam’s innocence. This was the opportunity, in many ways, to finally reach the truth; where a sequestered jury untainted by a riotous media, with the benefits of the 50 years of advancement in both biological and behavioral sciences since the murder was first investigated, and all the evidence on the table, would be in a position to accurately assess whether or not Sam H. Sheppard murdered his wife.
Samuel Reese Sheppard, once called Chip by his doting parents, grew up with an impression of his father as an innocent man who perhaps didn’t always make the best choices, but who loved his mother deeply and was helped into an early grave by an unfair system that ruined his life, and in many ways ruined the life of the younger Sam as well. William Mason, the newly appointed Cuyahoga County Prosecutor, did not agree as he reviewed the evidence. He strongly felt that Sam Sr. had tried to get away with murder, using his powerful, wealthy family and his connections, and after only a decade served, had eventually succeeded. He felt the evidence for Sam Sr.’s guilt was strong, and was very concerned that his story had changed as new information was discovered and presented to him.
After five years of investigation by Sam Reese Sheppard, alongside his co-author Cynthia Cooper, the Sheppard attorney Terry Gilbert, and investigative group AMSEC, Sam sought a petition in 1995 from the State of Ohio to declare Samuel H. Sheppard innocent, and to acknowledge that he had been wrongfully imprisoned. Stephanie Tubbs Jones, the County Prosecutor at that time, felt strongly that Sam Sr. was guilty and refused. In 1999, Special Administrator of the Estate of Samuel H. Sheppard and old family friend Alan Davis sued the State of Ohio for two million dollars in damages for the wrongful imprisonment of Samuel H. Sheppard. Gilbert presented an offer to settle out of court for 3.2 million dollars and included a long list of demands for the Prosecutor’s Office. The Prosecutor’s Office did not consider this a good faith effort to settle. The case, therefore, went to trial.
The Sheppard team, the plaintiffs in this case, made a number of claims, both in the early days of the trial and to the public at large through the media, including that they had new witnesses, that there was the blood of a third person at the crime scene, that Sam’s injuries were evidence that he was not the killer, that they had the testimony of contemporary forensics experts who could prove Sam’s innocence, and that they had evidence previously suppressed by the State of Ohio: proof of forced entry in the Sheppard home. They additionally presented Richard Eberling, a man in the employ of the Sheppards in the 1950s, as the likely murderer.
In addition to the original evidence from past trials, the prosecutor’s office — here the defendants — had Marilyn’s body disinterred for further examination and testing, alongside the remains of the child she had carried within her. There had been a great deal of anticipation about what modern science, particularly with our present day knowledge of DNA, could bring to the case, but the results were disappointing for both sides. Given Sam Sr.’s suggestions during the second trial of an adulterous Marilyn (an accusation that was not corroborated by a single witness) who perhaps had been murdered by their good friends and neighbours the Houks after Esther Houk caught Marilyn and Spencer together, the fetus’ DNA was tested to establish his paternity, but the tests came back inconclusive. The DNA testing on the blood stains taken from the house after the murder came back indicating the plantiff’s favoured suspect, Richard Eberling, could not be excluded as a source of blood. As promising as that sounds, the type of testing done on this case was PCR testing, and the profile produced could be held by potentially thousands of people. Richard Eberling was excluded by simple blood typing: Eberling had type A blood, as did Sam Sr. The blood samples from the house were type O, and likely came from Marilyn.
The remaining physical specimens from the original trial weren’t of great help, either. The heads of sperm, previously undiscovered, were noted in the vaginal swab taken at the time of the murder. There were very, very few of them, however, and the discovery didn’t turn out to be very useful. Sperm have tails which drop off over time, but if the sperm had tails when the sample was taken, they would have been preserved. The sperm heads, whether or not they came from Sam Sheppard Sr., were at least a few days old.
Toby Wolson, an expert witness and analyst on both blood spatter and DNA, suggested that the difficulties in physical analysis after all this time was to be expected; in addition to the expected aging of certain types of samples, contamination in samples that old is quite common. At the time that the samples were taken, there were a lot of tests that simply weren’t routine and therefore weren’t done in the first place, and the collection methods for those that were taken were appropriate for the science as it existed at the time. They handled specimens with their bare hands, no one wore masks or covered their footwear on the crime scene. The blood on Sam Sr.’s pants, for example, contained, as far as testing revealed, none of Marilyn’s or Sam’s blood, nor that of Richard Eberling. Logically, at least Marilyn’s blood should have been detected. That it was not detected is a sign of contamination.
There was a definite productive result from the exhumation of Marilyn Sheppard and her unborn son, however; tooth bacteria dies with the individual who housed them, and after death teeth can last a long time. The forensic expert whose testimony was so effective in the second trial, Dr. Paul Kirk, had stated plainly that Marilyn’s teeth broke as she bit her attacker, which could not have been Sam Sheppard because he had no bite marks on his body. Dr. Lowell Levine, a forensic odontologist, examining Marilyn’s teeth directly, stated that the damage could not have occurred through biting; it was clearly the result of blunt force trauma. On the stand, celebrated forensic pathologist Cyril Wecht and forensic odontologist Dr. Michael Sobel both agreed with this conclusion.
Many of Dr. Kirk’s conclusions were, by the standards of modern forensics, considered questionable at best. Dr. Roger Marsters would describe Kirk’s methods and conclusions as “off track” and “unreasonable.” Kirk’s insistence that the killer was left-handed, and the right-handed Sam Sr. cannot be the murderer, was refuted in trial by forensic serologist Dr. Barton Epstein. His insistence that the blood spatter on the watch Sam wore wasn’t spatter at all, but was a contact transfer smear, was also incorrect, as analyzed with the assistance of modern computers.
FBI Criminal Profiler and expert witness Gregg McCrary, who had been consulted on literally thousands of cases, testified that the type of injuries inflicted on Marilyn were very rarely found in cases of sadistic homicide, as had been suggested a number of times throughout the three trials, but were incredibly common with domestic homicide. His experience suggested to him, as well, that there was not a robbery motive in this crime. In addition to the clearly valuable items left untouched in the house, such as a mug in the study that held $32 and another $20 sitting untouched in a drawer, there was very little damage to the property. He singled out the dumped medical bag as one of the ways in which this crime scene was so atypical: this is a case where the whole bag would be stolen, not rooted through and dumped. Burglary did not here make sense as a motivation in light of the evidence. Nor did sadistic homicide, even aside from the unusual injury pattern. The circumstances were all wrong; the victim wasn’t isolated or taken to a secluded location, the case didn’t involve multiple crime scenes, and no sexual fluids were ever found at the scene. Several jurors would later report to author James Neff that they found McCrary’s testimony very compelling.
In addition to the newer, more modern interpretations of the evidence, there were a few problems with the Sheppard team’s claims. Their charge of evidence of forced entry held back by the prosecution in the original case was based on an error. The door near the basement stairs, marred by chisel marks, led to a windowless crawl space. There was no way to get in or out of the house via the crawl space.
The claim that Sam Sr. was too badly injured to have inflicted the injuries on himself turned out to not be very convincing, as well; his broken neck was hotly contested, and only diagnosed by his own brother in the family-owned Bay View Hospital. X-rays that had not come in contact with Dr. Stephen Sheppard did not show such an injury, nor the signs of arthritis shown on the X-rays that Stephen Sheppard claimed were Sam’s. The remaining injuries, which were uncontested, could as easily have come from a terrified Marilyn Sheppard, fighting for her life, as they could have from an intruder.
Marilyn’s injuries, on the other hand, were even more extensive than the 1954 autopsy reported them as having been. Dr. Thomas Holland, forensic anthropologist, examined Marilyn’s skeletal remains, and compared her injuries to those of someone in a “slow-moving airplane crash or a car crash.” In past trials, no one had realized the severity of the trauma she had suffered; skin can both reveal a lot in terms of the damage to the flesh, and it can hide a lot in terms of the extent of the trauma.
The final bombshell planned by the Sheppard team was the offering of Richard Eberling as the clear murderer of Marilyn Sheppard. Eberling was later convicted of the murder of Ms. Ethel Durkin, a senior woman under his care, as part of an inheritance scheme. He had worked for the Sheppards as a window washer the summer Marilyn was murdered. Eberling had died in prison in 1998 while serving a life sentence for Ms. Durkin’s murder.
Under scrutiny, there were a lot of problems with this theory; author Jack DeSario presents them well: for all of the fame of Sam Sr.’s “bushy-haired man”, Richard Eberling was bald. Eberling was excluded from the blood stains in the bedroom by his blood type. Eberling did indeed speak of Marilyn in admiration and respectfully, but the idea that he had a sexual obsession with her seemed unlikely, as he was openly gay. Additionally, Sam Sr. saw him repeatedly during the first trial, only months after he had allegedly physically grappled with him twice on the morning of the murder, and yet had never suggested him as a suspect. The only person who testified that Eberling had confessed to this murder had a clear profit motive and had only come forward after she had learned that Eberling was a murder suspect, in 1996, and immediately contacted an author about it. Her claims of having called the police repeatedly at the time of the confession is also suspect: no record exists of those calls in the police’s records. Eberling’s lawyer maintained that Eberling had admitted to some genuinely awful things, but that he consistently claimed that he wasn’t involved in the Sheppard murder.
There was an alternate murder suspect suggested in this trial, through the testimony of F. Lee Bailey, who had been Sam Sr.’s attorney in the 1966 retrial. This suspect was Esther Houk. This theory involved Esther walking in on her husband Spencer having an affair with Marilyn, and murdering her. Richard Weygandt, the former Bay Village Law Director, summed up why the Houks did not make sense as suspects; Sam Sr. had reported that the figure he saw that night was over 6 foot and able to contend with the 31 year old and very athletic Sam Sheppard. Esther was a very petite woman, certainly not a powerful man over 6 feet with bushy hair. Spencer Houk had a bad leg from the polio he’d suffered through as a child. Indeed, when they bravely rushed to Sam Sr.’s aid on that early morning in 1954, not knowing the circumstances but only that “they” killed Marilyn and who knew where the killer was now, they had to drive their car rather than walk the several houses between theirs and the Sheppards’. Spencer Houk would have struggled on the stairs to get to the bedroom in the first place, let alone easily overpower an athletic young man
Did Sam Sheppard Sr. do it? We’ll never know for sure. County Prosecutor William Mason certainly thought so; a man who had just obtained his position and might have benefited from simply settling the case. He felt Sam’s guilt strongly enough that he pursued the case with everything he had. He would later tell author Jack DeSario that the only sympathetic figure in the 1954 murder case was Marilyn.
The jury in this trial thought so, as well; after weeks of testimony from witnesses and experts, after this consumed their lives for however long, it took them only 3 hours to find for the defendant: the Sheppard team had not proven Samuel H. Sheppard’s innocence.
Samuel Reese Sheppard still believes in his father’s innocence. In 2002, the Eighth District Court of Appeals ruled that the statute of limitations has expired and the case cannot be tried again. For good or ill, this is as close to the truth we will get, and the closest to justice for Marilyn Reese Sheppard.
– FURTHER READING AND SOURCES –
Affleck, John. “Bailey Testifies in Sheppard Case.” AP NEWS, Associated Press, 16 Feb. 2000. Retrieved 9 October 2021.
“AMSEC 04 — Richard Eberling Background Investigation.” EngagedScholarship@CSU, 9 Mar. 1995. Retrieved 9 October 2021.
“Blood 5: Transfer Bloodstains – Crime Scene.” Google Sites. Retrieved 9 October 2021.
Butterfield, Fox. “New Clues in an Old Murder Case.” The New York Times, The New York Times, 5 Feb. 1997. Retrieved 9 October 2021.
DeSario, Jack and William D. Mason. Dr. Sam Sheppard on Trial. Kent State University Press, 2003.
“Did Ancient Teeth Decay?” ABC (Australian Broadcasting Corporation), 28 May 2008. Retrieved 9 October 2021.
Drenkhan, Patrolman Fred. “Statement given to BVPD by Esther Houk.” EngagedScholarship@CSU. Retrieved 9 October 2021.
“Fetus DNA Tests Inconclusive in ‘The Fugitive’ Murder Case.” Deseret News, Deseret News, 18 Jan. 2000. Retrieved 9 October 2021.
Finn, Peter. “Loudoun Firm Made Sam Sheppard Case Its Own.” The Washington Post, WP Company, 9 Feb. 1997. Retrieved 9 October 2021.
“Forensic Anthropology.” Smithsonian National Museum of Natural History. Retrieved 9 October 2021.
Gilbert, Terry H., and George H. Carr. “Motion in Limine to Limit Testimony of Dr. Roger Marsters.” EngagedScholarship@CSU, 13 Mar. 2000. Retrieved 9 October 2021.
Linder, Douglas O. “Sam Sheppard.” Famous Trials, UMKC School of Law. Retrieved 9 October 2021.
Neff, James. The Wrong Man: The Final Verdict on the Dr. Sam Sheppard Murder Case. Open Road Media: 2015.
“Richard Eberling Dies; Inmate Denied Killing Wife of Sam Sheppard.” The Buffalo News, 27 July 1998. Retrieved 9 October 2021.
Simon, Scott. “Son of the ‘Fugitive’ Defends His Father.” NPR, NPR, 12 Sept. 2009. Retrieved 9 October 2021.
“Testimony Reveals That Sheppard Sought Out-of-Court Settlement.” CNN, Cable News Network, February 23, 2000. Retrieved 9 October 2021.
Wendling, Mike. “Marilyn Sheppard Body to Be Exhumed.” AP NEWS, Associated Press, 20 Aug. 1999. Retrieved 9 October 2021.
“William D. Mason.” Academic Dictionaries and Encyclopedias. Retrieved 9 October 2021.