After the Sheppard attorneys concluded their rebuttal on Friday, the Prosecutors immediately began to prepare their closing argument. A critical component of a legal case, the closing argument provides the counselors for both parties with their first and only opportunity to comment on all the evidence presented throughout the trial. The closing argument would allow the attorneys for the State of Ohio to reference specific testimony and draw inferences from these statements, explain the significance of key findings as to the guilt of Sam Sheppard, and integrate all the key information to present an overall understanding of the case.
Mason and his staff worked throughout the weekend sifting through ten weeks’ worth of information—thousands of pages of testimony, hundreds of photographs, and dozens of experts’ reports—in an effort to identify the most critical observations and findings. From the moment he woke up until the moment he would collapse from physical fatigue late into the night, Mason reviewed all of this information. He and Dever agreed that they would split the responsibility for this critical stage; Bill would present the first part of the closing argument, and Steve would assume responsibility for the final portion. Both Prosecutors worked throughout the night on Sunday, Mason writing a detailed closing that he would rely on to ensure that he addressed critical pieces of testimony and Dever reviewing a series of brief note cards that would help him in his recollections. Bill continued to revise and modify his statement until the moment he was called on to present the closing for the State of Ohio.
On the morning of the closing arguments the courtroom was packed with observers and family members. Judge Suster opened the proceedings by instructing the jury: “We are at the point in the trial when counsel will address you in what we refer to as closing argument. The rules of procedure provide that Plaintiff’s counsel will address you first, then Defendant’s counsel will address you, and then Plaintiff’s counsel will be given the opportunity for a rebuttal.… The closing arguments are not evidence; rather, they are counsel’s opportunity to argue to you from the evidence presented. Should counsel’s recollection of the evidence differ from your recollection of the evidence then of course your collective recollection controls.” At the end of this recitation Judge Suster reintroduced Plaintiff’s counsel Terry Gilbert.
A smiling Gilbert strode up to the podium placed before the jury and announced, “Well, we made it.” He acknowledged that this had been a long, difficult trial and then thanked the jury for their attention. “On behalf of my client, Sam Reese Sheppard, and his family, who are back there, I know that they appreciate the fact that you have been involved in this case and committed yourselves way beyond the call of what normally jurors have to do. Normally it is a two-, three-, four-day trial. This is probably one of the longest trials in Cuyahoga County Common Pleas history.” After extending his thanks to various people in the courtroom, he assumed a more serious demeanor and urged the jury to believe that this trial was about a “labor for justice.” He urged, “This is what we want, it has never been about anything but justice and accountability. We know that there are people in this world and this country who are falsely accused. It is not a foreign concept, and that’s why we have this wonderful legal system that can deal with that.” Gilbert maintained that his case had shown the jurors how Dr. Sam Sheppard had been wrongfully accused and convicted.
The attorney for the Sheppard Estate next explained his burden of proof. He emphasized that all he had to do was simply prove by the preponderance of the evidence that “Dr. Sam Sheppard did not commit this crime.” While acknowledging that his case was “not perfect,” Gilbert claimed that society had jumped to the conclusion that the husband must be responsible for this horrible murder. He maintained that the investigation of the murder had been inadequate, the house had been left unattended, and the testing had been poorly administered. Gilbert claimed that all his witnesses had had something to add and that they had provided the evidence to support the conclusion that Dr. Sam Sheppard did not commit this murder. The science and forensics, he argued, support the Plaintiff’s interpretations, and the jurors should trust their instincts.
Gilbert then attacked the credibility of some of the testimony presented by the State of Ohio. He pointed out to the jury that the Prosecutor’s Office had introduced only one transcript from the “fair trial of 1966” but had “dumped the frenzied findings of the 1954 trial upon you.” He claimed that the State of Ohio had conducted a one-sided search for the truth, that its lawyers had only wanted to hear the testimony that supported their perspective, and that they held on to the “legacy of the travesty of justice.” Any meaningful work on this case, he alleged, had been conducted by the Sheppard family.
“Let’s talk about the facts of this case.” He went on to remind the jury of how Dr. Sam Sheppard had been a rising star in the medical profession, had loved his community, had owned a beautiful home, and had a loving relationship with his family. He referred to the testimony by Dorothy Sheppard, the Aherns, and Mims Adler to confirm that a stable relationship had existed between Sam and Marilyn. Sure, Gilbert admitted, Sam “had an affair, he was not perfect,” but, he then offered, President Bill Clinton had had an affair, too. Lying about an affair, Gilbert contended, does not mean Sam Sheppard committed a murder.
Sam Sheppard, he argued, would never waiver from his basic story and was steadfast in maintaining his innocence. At this point Gilbert reviewed the familiar details of Sam’s recollection of the night of July 3rd and 4th, 1954. After reciting the story, he turned to an overview of the events that took place in Bay View Hospital after Sam Sheppard was admitted as a patient. Sam, it was reported, was incoherent and crying. Gilbert displayed a chart of all the individuals who saw Sam in the hospital, including Dorothy Sheppard, Officer Drenkhan, Esther Houk, Dr. Hall, Eileen Huge Bennett, Nurse Vetter, Nurse Hahn, Nurse Franz, Dr. Gerber, Detective Schottke, Dr. Hoversten, and Dr. Bailey. He noted that each of these people had seen some objective manifestation of injury or grief.
Gilbert directed, “Now let’s talk about the crime scene.” The Bay Village Police Department was small and the crime scene was not properly handled, he observed. Teenagers found the green bag and handled its contents. Dr. Gerber did not act appropriately and hated osteopaths. There was no serious scientific analysis of the Sheppard home until July 23. A t-shirt was found next door, and it was never examined or reported. A flashlight consistent with the murder weapon that was discovered in the lake was given to Dr. Gerber and never seen again. These facts, Gilbert asserted, reflected the bias and lack of fairness exhibited in this case. He argued animatedly that this “shows you the mentality that we have been dealing with for all these years. If it helps Dr. Sheppard we just don’t pay attention to it.”
After a brief break Terry Gilbert continued to present his closing argument. He next addressed the scientific evidence. Epstein and Laber, he recalled, had testified that the large stain on the closet door was probably blood from the assailant, that Sam Sheppard was not covered with blood, that there was no evidence that Marilyn’s body was moved, and that the experts had not detected an imprint on the bloody pillow. Dr. Tahir, the nationally renowned DNA expert, had revealed that the bloodstain on Dr. Sheppard’s pants did not come from Marilyn or Sam, that there was evidence of another person in the bloodstain on the closet door, and that he had detected sperm in the vaginal smears. In regard to Sam Sheppard’s injuries, Dr. Fallon had reported that the records were consistent with the existence of serious life-threatening injuries. Dr. Wecht talked about Marilyn’s evulsed nail, which suggested the scratching of her assailant. Wecht claimed he could not discount that this was a sexual assault. Each of these alone, Gilbert argued, could show that the Plaintiff had won this case. All together, he maintained, the evidence is “compelling.”
Finally, Gilbert explained that he did not have to identify the actual murderer to win this case. However, he had presented information about Eberling and Fuehrer to demonstrate that somebody outside of the Sheppard home could have committed this crime. Eberling, he suggested, had access to that house, had a scar on his wrist, and had stolen Marilyn’s ring. In addition, Kathleen Collins Dyal had testified that Eberling confessed to the killing.
To punctuate the impending conclusion of his statement, Gilbert paused, looked at the jury, and said, “Ladies and gentlemen, every witness that we have presented to you, every exhibit, every inference leads to only one reasonable conclusion. And if you follow your common sense and follow your instincts and use your intellect, I think that you will come up with the only conclusion that is possible here.… Sam did not commit this crime! Thank you.”
Before the State started its closing statement, Mason requested a break. He felt a brief respite would allow the jurors to refocus and would interrupt any emotional momentum Gilbert had achieved. Reflecting on the arguments offered by the Plaintiff, Mason did not believe that Gilbert had provided any new or compelling insights. It was now his opportunity to synthesize the State’s case and interpretations.
As the jury reconvened, Judge Suster announced, “At this point we are going to hear the opening part of the State’s closing argument.… Mr. Mason you may proceed.” Bill Mason began his statement by thanking the jurors for the major commitments of time and energy they had made to this case. He noted that he was the fourth Cuyahoga County Prosecutor to be involved with the legal issues of this case and he reiterated that his goal was to seek the truth in regard to the events of 1954 and to present all the evidence to the jury. Consistent with this objection, he said that the best scientific experts had been sought, and he acknowledged they had not provided their skills for free.
Concerned that the jurors might be somewhat confused about the burden of proof that they had to apply to the facts of the case, Mason diagrammed the standard. He explained that in the two criminal trials of Sam Sheppard the Prosecutor’s Office had had the burden to prove Sam’s guilt beyond a reasonable doubt. He also explained that an acquittal does not mean a finding of innocence but rather that there was just some doubt about guilt. In this civil trial, Mason stressed, the Estate of Samuel H. Sheppard assumed the burden of proof. To emphasize this point he walked over to and laid his hand down on the Plaintiff’s table and reiterated that Terry Gilbert “has the burden to prove” that Sam Sheppard “did not kill Marilyn.” Given this standard, Mason explained, if a juror is not convinced of Sam’s innocence, “not sure, or you don’t know what happened, you must find for the State.”
Turning to the facts of this case, Mason asserted that the person at the center of the legal controversy in the case was Dr. Sam Sheppard. In deciding guilt or innocence, the Prosecutor maintained, it is important to evaluate what “kind of man was Sam Sheppard.” Mims Adler, his good friend, described him as “the playboy of the Western world.” Mason reminded the jurors that after the murder “the playboy of the western world” had accused his college buddy Les Hoversten, then his wife’s friend Esther Houk, and even Marilyn’s cousin Tom Weigle of Marilyn’s murder. During his second trial Sam Sheppard permitted F. Lee Bailey to characterize Marilyn as “an unfaithful sleaze.” An examination of the actions of this “playboy” also revealed that he had a “history of spending time with other women,” that he told a number of people “that his wife couldn’t sexually satisfy him,” that he told people that his wife “approved of an open marriage,” that he drove around in a Jaguar yet scolded Marilyn for purchasing a dishwasher, that he loved to drop names like football legend Otto Graham, and that he lied about his activities to the authorities.
Mason asked the jurors to consider what we know about the relationship between Sam and Marilyn Sheppard. The attorney faced the jurors and in a slow and deliberate manner stated, “We can infer that, like many women, Marilyn Sheppard assumed she would get fidelity, faithfulness, and commitment from her husband. She wanted acceptance, emotional support, security, and stability from her spouse. She wanted kindness, gentleness, respect, love, satisfaction, and compatibility from her life partner. Instead what she received was unfaithfulness, betrayal, rejection, humiliation, uncertainty, indifference, and disrespect.” Mason continued that we know “the playboy of the Western world” contemplated divorce in 1951 and that he “carried on openly and obviously with other women. He maintained a three-year affair with Susan Hayes,” and there were numerous other sexual encounters. To further support his argument that Marilyn had endured humiliation, Mason recalled some examples of Sam’s hurtful behavior: he gave Susan Hayes a ring in 1953; during a vacation with his wife in California he “shacked up” with Susan Hayes for seven days without even having the decency to be discreet about his behavior. Sheppard, he emphasized, had shared a bed with Susan Hayes at the home of a doctor who was a friend and had taken her to a wedding that was attended by a number of Marilyn’s friends. During this time he had also purchased a watch for Susan.
The stress of a troubled marriage only got worse after their March 1954 trip to California, Mason maintained. He recounted that Dr. Bailey, a longtime friend of the Sheppards, had testified that in late April or early May of 1954 his wife, who was acting as a receptionist, had accidentally opened a love letter from Susan Hayes to Sam. Marilyn found out about the letters and paid a visit to the Baileys, demanding the letter. An enraged Marilyn said “she wanted a divorce” and would “drag Sam’s name through the mud.” In June 1954, weeks before the murder, there was another confrontation between Marilyn and Sam in regard to his actions with Mrs. Lossman.
Mason paused and in an effort to reinforce the imagery of this difficult marital relationship asked, “Ladies and gentlemen, I am going to ask you to close your eyes for a second and think about those facts building up from February 1954 to July 1954. Do you see a powder keg of emotional conflict building in this relationship?”
On July 2, 1954, the Sheppard family had a party to announce Marilyn’s pregnancy. On July 3, 1954, the day before the murder, when Dr. Bailey congratulated Sam about the announcement, Sam responded, “That’s what happens when you don’t use a condom.” It was against this background that Mason somberly assessed, “We don’t know what lit the match, but something caused the powder keg of marital conflict to blow in the early morning hours of July 4, 1954.… The powder keg of emotion exploded, and Marilyn Sheppard was bludgeoned to death by her husband, Dr. Sam Sheppard.”
Mason asked the jurors to consider ten questions when pondering the guilt or innocence of Dr. Sam Sheppard:
Why was it so important for Stephen Sheppard to get Sam Sheppard out of the crime scene so early on July 4, 1954?
Did Sam Sheppard really take his jacket off in the middle of the night and fold it neatly on the couch?
Why were there no blood smears on the wall of the bedroom or on Sam that would indicate a struggle with an assailant?
Why is there no explanation for the whereabouts of Sam’s t-shirt? Remember that the t-shirt reportedly found next door was not the same size or brand name as those owned by Sam.
How could blood spatter get on Sam’s watch unless his hand was within two feet of the bludgeoning?
What was Koko the dog doing if there was an intruder in the house?
Where was Stephen Sheppard, the “quarterback” of the 1954 and 1966 team? Why didn’t he testify?
Why didn’t the lawyers for the Sheppard Estate introduce Sam’s testimony?
The time of death is estimated at 4:00 A.M. What was Sam Sheppard doing from 4:00 to 5:45 A.M., when he called Mayor Houk?
Was it a burglar who entered that bedroom and struck Marilyn thirty-five times or was it her enraged husband?
Mason approached the jury box. In a solemn and deliberate tone he cautioned them to “think about your task. It may just be that you are being asked to reward the killer’s son for the killer bludgeoning his wife.… Thank you.” He turned and slowly walked back to his seat, all the while considering the implications of this ugly irony.
Steve Dever then took over and, within the broad framework provided for the jurors by Mason, reviewed the significant witnesses in the trial and emphasized some of the key testimony that had been provided. As he reviewed the facts Dever cautioned on a number of occasions that the jurors must recognize the “red herrings” offered by the Sheppard attorneys, and he repeatedly urged the jury to exercise their reason and common sense.
Starting with F. Lee Bailey, Dever observed how the Sheppard attorney had used the “Incredible Houk” theory to win an acquittal in 1966. Sam Sheppard, in support of this theory, allowed his wife’s name to be tarnished. At the conclusion of the trial Sheppard had also delivered a fifteen-page letter to the Bay Village Police accusing the Houks of murder. Dever reviewed Mims Adler’s assertions that Marilyn had told her during a phone conversation that Sam was delighted with the pregnancy. He reminded the jury that Adler also testified that Sam’s actions with other women hurt Marilyn, who had called Sam “the playboy of the Western world.” Officer Fred Drenkhan had been presented by the Plaintiff to confirm the small size of the Bay Village Police Department and to confirm, through his responses, the inadequate investigation of the murder scene. Dever agreed that the processing of the crime scene left “a lot to be desired,” but he claimed that this worked to the benefit of the true criminal, Sam Sheppard. Gilbert had presented the investigation of Mr. Fuehrer, Dever emphasized, as “one of the several red herrings” raised in the courtroom “in a desperate attempt to clear Dr. Sam Sheppard and point the finger of suspicion at someone else.” This suspect, Dever declared, had been thoroughly investigated and dismissed by both the Sheppard attorneys and the Prosecutors in 1954.
Dr. Fallon was evaluated as a “great doctor and a great asset to the community” by Dever, but he emphasized that the essence of his testimony was simply that “given the technology of the day, he could not exclude the possibility of a concussion or a spinal contusion.” Even this witness, Dever explained, had rejected Sam Sheppard’s account of any choking. Dever posited that Dr. Sam’s actions prevented anyone from reaching the conclusion that his claims to have had a broken neck were legitimate. Four days after the attack Sam Sheppard was released from the hospital, and seven days later he was making rounds in the hospital.
In analyzing Sam Sheppard’s medical records, Dever wondered why Dr. Stephen Sheppard had not appeared for the Plaintiff to explain his actions. He argued passionately that “it is obvious by his behavior that this is a critical point in the case.” Stephen Sheppard whisked his brother away from the crime scene in his car. He ordered that Sam was to have no visitors without his approval, and he entered on the medical chart that his brother suffered a fracture of a vertebra. His behavior, Dever proposed, was that of a family member “trying to protect” his brother. X-rays had been presented by the Sheppard hospital displaying a fracture and an arthritic condition. Subsequent x-rays, however, did not reveal these conditions. Dever argued that the only explanation for this disparity was “that those x-rays were substituted” to overstate Sam Sheppard’s injuries—the old “switcharoo” that he had noted during the trial.
The Sheppard team calling Cleveland police officer Henry Dombrowski marked “another red herring,” Dever said. The Estate’s attorneys had presented a cast made of a tool mark on a basement door that they proclaimed demonstrated evidence of a break-in, evidence that had been allegedly suppressed by the State of Ohio. Dombrowski testified, however, that the doorway in fact led to a crawl space near the chimney and that there was no way in or out of the crawl space from the outside.
In assessing Sam Reese Sheppard’s statements, Dever expressed compassion and said that he did not doubt his “passion for this case.” But Sam Reese had not considered the facts, and he admitted he had never reviewed the testimony. That is fine for him, Dever said, but he reminded the jurors that they must base their decision “on the evidence.”
Dever labeled the alleged confession of the murder by Richard Eberling to Kathleen Collins Dyal as unbelievable. He wondered why she had waited thirteen years to report this story. Why, although she informed her husband about the circumstances of her firing and described her conversations with Eberling about black magic and devil worship, didn’t she ever mention a startling confession to murder? In addition, the details of the supposed confession that she provided didn’t correspond to the facts, Dever said. A bucket was not used to kill Marilyn, and Eberling did not steal the ring from Marilyn that night.
Dever turned to an examination of the “science” that the Sheppard attorneys had offered. The jury was warned to be cautious in regard to the significance and meaning that should be attached to the testimony of the experts. The attorney for the State of Ohio admitted that Dr. Gerber had been mistaken in 1954 and 1966 when he claimed that a surgical instrument made the impression on the bloodied pillow. However, Dr. Kirk the “so-called prominent criminalist,” was also wrong in 1966 when he claimed that Marilyn bit her assailant and when he suggested that the assailant was left-handed. “Science,” Dever cautioned, “is not perfect. You must apply reason and common sense.” With this caveat Dever noted the inconsistencies in the scientific observations of the Sheppard experts. Dr. Tanay’s assertion that the murder of Marilyn Sheppard was a sexual, sadistic homicide does not, Dever said, conform to the facts. Neither Dr. Wecht nor any of the Sheppard experts had detected any sexual activity or any bruises of the sexual organs. All the experts also agreed death occurred quickly. Dr. Tahir acknowledged that the highly publicized sperm fractions that were offered into evidence to confirm a sexual assault were degraded and had nothing to do with the crime because they were deposited at least two to three days before the murder.
Even the DNA evidence that was offered was misleading, Dever asserted. Although the Sheppard team had characterized DNA testing as a “genetic fingerprint,” the more discriminating methods of analysis could not be applied to the evidence in this case because of its age and small quantity. The DNA technology that was utilized was only capable of providing exclusion tests—eliminating people, not identifying them. To emphasize these limitations, Dever reminded the jurors that the tests of these forty-six-year-old samples revealed contamination and that it was impossible to determine whether the materials examined were blood samples. The jurors were also reminded of Gilbert’s claim that the new science had solved the Sheppard case, yet the reality of the test results was not consistent with these exaggerated claims. Dever, looking at the jurors, emphasized that the test conducted on the wood chips from the basement stairs “can’t exclude 90 percent of you.” He recalled how “Bart Epstein practically fell out of his chair when he found out that Eberling was type A blood.” Epstein, based on this fact, had had to agree that Eberling could not have been a source for the bloodstains on the closet door regardless of the DNA test results.
Dever said that using common sense led one to realize that the most significant finding based on the DNA testing of Sam Sheppard’s pants was not that it excluded Sam and Marilyn as a source. Rather, he suggested, it is the question, “How is it possible that Sam Sheppard did not have any blood on his pants from Marilyn?” If Dr. Sheppard’s stories of two physical confrontations with the blood-spattered assailant and of his examinations of Marilyn are true, how could he be devoid of any blood?
Given the contradictions apparent in the case presented by the Sheppard attorneys, Dever challenged the jurors to classify the crime. He recalled that Gregg McCrary, as a member of the FBI, had helped classify crimes based on statistics that had been compiled since 1930. Dever reminded the jury that the FBI classified “homicides into twenty-eight particular categories.” Applying the crime classification manual’s descriptions, Dever asked whether the murder of Marilyn Sheppard was the result of a sexually sadistic or of a domestic homicide. Given that the injuries to the victim were produced by blunt force trauma and that death was inflicted quickly, Dever concluded that this crime does not fit the profile of a sexually sadistic homicide. “What does fit,” Dever stated, “is domestic homicide.”
Prior to the application of the FBI standards, Dever examined the logical flaws in Dr. Sam Sheppard’s statements. Dever contended that consistent with Sam Sheppard’s story the assailant would have had to tiptoe past Sam, who was asleep at the foot of the stairs. Further, given that Sam had said that he was struck from behind as he grappled with the “form,” there had to be two intruders. After he regained consciousness he recalled that his wallet had been removed and was lying on the floor near him. However, there was no blood on the wallet from the murderer’s bloodied hands, nor was there any blood on Sam’s pockets or on Sam. Throughout this time Sam never turned on a light, used the phone, or screamed for help. Hearing a noise downstairs he abandoned his son to chase a single assailant to the beach. According to his testimony, Sam Sheppard was then rendered unconscious again by choking, but there was no physical evidence of choking. He had no explanation for the absence of his t-shirt. Why would an assailant have taken his t-shirt? When asked about the presence of a lamp on the nightstand between the two beds, Sam claimed there was no lamp. Given that the only source of light in the bedroom was provided by a small wall fixture on the far side of the room, Dever asked, does not logic dictate the existence of a lamp?
Referring again to the testimony by Gregg McCrary and to the FBI manual, Dever reviewed the evidence of the “staging” that had occurred in the Sheppard house. There were attempts to stage a burglary and a narcotics theft, but neither of these crimes was substantiated. In fact, even the earlier Sheppard attorneys had rejected the notion that there was a burglary, given that money in the house was not taken, that Marilyn’s watch was left behind, and that nothing of value was removed from the Sheppard home. Marilyn Sheppard’s body had also been staged to suggest a rape, but the evidence again refuted this interpretation. Marilyn’s pajama top was folded back, not torn; there was no bruising of her body, no evidence of sexual activity. Dever reminded the jurors of the phenomenon of “undoing” and how it was found to be common in a domestic homicide. Dr. Sam Sheppard, consistent with this profile, indicated that he had covered the lower part of Marilyn’s body. Dever also pointed out that Marilyn was horribly murdered, while Sam was only knocked unconscious. According to the FBI manual, this difference in the level of violence is very unusual. A sadistic killer would murder everyone at the crime scene, especially if he had been interrupted. Even Sam’s decision to let the Houks find the body and report the murder is consistent with the description of a domestic homicide as detailed by the FBI. Dever shook his head, looked at the jurors, and exclaimed that nothing but a domestic homicide makes sense. The facts of the case do not support anything else.
After this rapid-fire presentation, Dever stopped and took a breath. He looked to the jury and said, “I would like to read for you… about the hour of death.” Hoarse from the rigors of the trial and the emotion of the moment, Steve Dever then read a passage from D. H. Lawrence’s poem “All Soul’s Day”:
Be careful, then, and be gentle about death
For it is hard to die. It is difficult to go through
the door, even when it opens.
“Marilyn Sheppard has been dead longer than she lived. Her journey into death is not completed and will not be completed, ladies and gentlemen, until you find the truth as to what occurred on July 4, 1954. Only with your finding of the truth, only with your return to justice will she be able to rest in peace. Thank you very much.” Visibly moved, Dever returned to the podium, collected his notes, and walked back to the Defendant’s table.
As these words resonated throughout the still courtroom, Mason could feel the burden of the case being lifted from his shoulders.
Terry Gilbert now had his opportunity to make the final trial observations in the long history of the Sheppard murder case. Responding to the theme of the Prosecutor’s Office, Gilbert asked, “Does it really make sense for Sam to kill his wife?” Gilbert continued, “I submit to you, does it make sense for Sam Sheppard to kill his wife in a monstrous and brutal fashion after a nice quiet, calm evening where there is congeniality with his wife, go to the lake, find a place to hide the weapon, somehow wash off the blood on his clothes, hide the t-shirt, and not put a new t-shirt on, rip his pocket with a four-inch tear downward… fill his pockets with sand… lay in the lake and get hypothermia … punch himself in the face several times to break out his teeth .… Does it make sense?” Gilbert added that there was objective evidence not consistent with domestic homicide.
After making these rational assessments Gilbert, predictably, lapsed into hyperbole. He accused the Prosecutor’s Office of instructing the jury “to forget about science.” Building on this exaggeration, he exclaimed, “I submit to you that science is important and it is an insult to the intelligence of anyone to say ‘disregard it.’ We would not have brought this case up all these years later if it wasn’t for science, and science gives us important pieces of information to the puzzle.” Mason was not surprised that the Sheppard attorney would distort the truth right up to the conclusion of the case.
Gilbert attempted a final spin on some of the evidence. Regarding the degraded sperm he now reasoned, “Maybe it wasn’t from the assailant, but it tells you Sam was having a nice relationship with his wife.” The Houk theory, which had besmirched the reputation of Marilyn Sheppard, was, according to Gilbert, the product of Sam’s being released from prison a “different person,” who was fighting for his life and therefore had gone along with the strategy of his young attorney. He also suggested that Dr. Stephen Sheppard was not important to this case and that the Prosecutors could have called him as a witness. Gilbert said he did not know if the crime scene was staged, but he stressed that Sam Sheppard would not “smash his own trophies.” The attorney also conceded he did not know who the murderer was, but he urged the jury to see that Sam Sheppard was a victim. Gilbert stood slumped over the podium, holding it with both his hands as he pled, “We want a simple declaration to once and for all bring peace and closure to this family.… Give us justice, please. Thank you.” He collected his notes and walked back to the Plaintiff’s table, nodding at the Sheppard family in the audience, many of whom were wiping tears from their eyes.
A quiet pall descended on the courtroom in recognition that the work of the attorneys in the Sheppard case had been concluded. Sam Reese Sheppard, tears in his eyes, hugged a number of his family as well as his attorneys, who had toiled on this case for so long and with so much passion. The Prosecutors filed out of the courtroom in a somber manner, emotionally and physically drained.
On Wednesday, April 12, 2000, the courtroom session began with Judge Ronald Suster instructing the jury as to the law of this case and how they should conduct the business of reaching a verdict. In a noticeably fatigued voice, Judge Suster said, “Good morning, ladies and gentlemen. Members of the jury, you have heard the evidence and arguments of counsel. It is now the duty of the court to instruct you on the law that applies to this case. The court and jury have separate functions. You decide the disputed facts, and I give the instructions of the law. It is your sworn duty to accept these instructions and apply the law as it is given to you. You are not permitted to change the law.… You are the judges of the facts, the credibility or believability of the witnesses, and the weight of the evidence.” He then defined a number of legal terms and explained their significance to this case. He discussed the notions of circumstantial evidence, credibility, inference, preponderance of evidence, and the interpretation of a sustained objection. After providing these fundamentals, the Judge addressed the legal issue in the case: “This is a case in which the Plaintiff, the Estate of Samuel H. Sheppard, has filed a cause of action called a petition for declaration of innocence in which the Plaintiff seeks to prove that Samuel H. Sheppard was wrongfully imprisoned in the State of Ohio for a crime he did not commit.… In order for you to find that Samuel Sheppard was wrongfully imprisoned, the Plaintiff must prove to you by the greater weight of the evidence … that Samuel H. Sheppard did not commit the violation of law for which he was imprisoned nor did he commit any lesser included offense.”
As part of the court’s legal presentation, the Judge stressed that the results of the 1954 and 1966 trials were not relevant to this case. Judge Suster emphasized, “This trial marks a new day in court, and you are the first jury to have considered the evidence presented in this case pursuant to the legal instructions I am now giving you.” He also provided the jurors with some guidance in regard to how they should conduct their deliberations. He warned them that they must not be influenced by any consideration of sympathy or prejudice. He also suggested that it is not wise to express a determination of guilt or innocence too soon, explaining that the expression of an opinion might make it difficult to consider other opinions or to change one’s own opinion.
After more than thirty minutes of instructions, Judge Suster finally announced, “Ladies and gentlemen, you will now retire to the jury room to deliberate upon your verdict.… Ladies and gentlemen, this case is now in your hands for a verdict.”
The jurors filed out of the courtroom and were led to a deliberation room on the twentieth floor of the Cuyahoga County Justice Center. The counselors remained behind in the vacated courtroom to present any final motions to the Judge. Terry Gilbert seized this opportunity to make his last formal objection. He noted for the record that he had objected to a jury trial in this case. Then, with a smile, Judge Suster dismissed the attorneys, commending their work and the “vigor with which you represented your clients.” He also noted that this case had been a “unique experience.”
Excused from the court, Mason and a few of the Prosecutors walked across the street and had lunch. Despite attempts to discuss other topics, the case dominated the conversation. Mason could not help but dissect the case, to reflect on their efforts and contemplate the potential impact that varying arguments could have had on the disposition of the case. Mason knew that he had become obsessed with this case and that he had to disengage himself so that he could focus on other critical legal issues confronting the county.
On the walk back to the Justice Center, the Prosecutors agreed that, given the number of exhibits involved, the jurors would probably deliberate for a few days. The consensus seemed to be that if the deliberations lingered beyond two days this might not be a good sign for the State of Ohio.
When Mason reached his office, he opened the door to find utter disarray. Boxes, food containers, pop cans, and papers were strewn throughout the large room. His workplace had become a casualty in this long, relentless case. He grabbed the trash can and set about cleaning up the clutter. The transition from this case to the other important work of the County Prosecutor, he decided, would begin with the reclamation of his office.
A few hours flew by before he heard the shrill ring of his phone. A glance at the clock showed it to be 3:00 P.M. Judge Suster’s bailiff was on the phone, and he requested that Mason return to the courtroom. Mason’s initial thought was that there was a need to explain some of the evidence or to answer questions posed by the jurors. He was stunned, and anxious, when he learned that the jury had already reached a verdict.
The attorneys for the State of Ohio entered the courtroom. Terry Gilbert was engaged in light banter with the Sheppard family members. He looked jubilant and confident. By contrast, the Prosecutors appeared stoic and sedate. After a fifteen-minute wait that seemed like hours to Mason, the jury was ushered into the courtroom. As they took their seats, Terry Gilbert sat down next to Sam Reese Sheppard and placed his left arm around him. Gilbert was beaming as the Judge asked the jury, “Ladies and gentlemen, have you reached a verdict?” The foreman of the jury responded, “We have.” Judge Suster’s bailiff retrieved the verdict form and brought it to the Judge. Gilbert patted Sam on the back, a smile on his face.
Judge Suster opened the verdict form and studied its contents. Finally, he read the verdict aloud: “This verdict form is signed by all eight members of the jury. We the members of the jury, being duly impaneled, do hereby find for the Defendant, the State of Ohio.”
On the reading of this verdict, Terry Gilbert reacted with stunned disbelief. He dropped his arm from Sam Reese’s shoulder, pulled away from the table, clutched his forehead, and doubled over as if shot in the stomach.
At the request of the Prosecutor’s Office, the jury was then polled. Each juror was asked, “Is that your verdict?” One after the other they answered, “Yes, sir,” in what seemed a crescendo. With each affirmation Sam Reese Sheppard placed his arm around his crestfallen counselor and consoled him. After the final juror was polled, Judge Suster announced, “Ladies and gentlemen, that will conclude your service to the county in this case.”
Perhaps surprisingly, the Prosecutors displayed little outward emotion or jubilation during the reading. Mason felt overwhelmed by a sense of vindication and justice. He was satisfied that all the men and women of the criminal justice system who had conscientiously toiled on this case for more than forty-six years in search of the truth would have their pride and reputations restored. But primarily, fundamentally, Mason was consumed by a vision of Marilyn Sheppard. Amid the sensational accusations that Sam Sheppard had been a victim of a conspiracy and that a travesty of justice had occurred, the real victim had been lost. Marilyn Sheppard, vibrant, young, intelligent, had been deprived of her life prematurely and senselessly. She would never see her children grow, never accomplish her goals, never have grandchildren. Someone had to speak for Marilyn. And that is what this case had really been about.
As the attorneys exited the courtroom for the last time, they were besieged by the crush of the media and the glare of lights. Interview tables had been set up outside of Judge Suster’s courtroom, and the players in this drama were expected to speak. Mason was polite but dispassionate, depleted emotionally. Later, in interviews with Mason, some of the jurors revealed that they did not believe Sam Sheppard’s story and viewed him as “a liar.” Others indicated that they thought that Sam Sheppard’s medical records were “rigged.” Six of the jurors told Mason that all eight were absolutely convinced of Sam’s guilt. Two went so far as to say that, if they had had the chance, they would have given him the death penalty. They said the case was clear cut and that several elements extinguished any doubt they had: FBI agent McCrary’s testimony, Dr. White’s testimony, and the fact that the Sheppards’ dog, Koko, did not bark.
After the trial Mason read the newspaper coverage with interest, to see how the case was portrayed. He was satisfied that most of the stories were objective and balanced. Then he read a newspaper article that quoted Terry Gilbert as saying that the verdict was “the latest mockery of justice.” Mason felt equal parts amusement and exasperation by the audacity of the statement. How, after a grueling, ten-week trial in which Gilbert had been afforded every chance to present his case and to cross-examine all of the State of Ohio’s witnesses, could he continue to attack the fairness of the trial? Even with all that time and opportunity, Gilbert could not provide a single example of the State’s withholding evidence or conspiring against Dr. Sam Sheppard.
As Mason fretted over his review of the newspaper stories those next few days, he read something that calmed him and gave him great solace. A reporter had asked Jane Reese for a statement following the verdict. Jane said, “I was glad I had the opportunity to speak for the real victim, which is Marilyn. I’m happy they got the real killer. I hope this will end it.”
Rest in peace, Marilyn.