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Richard Sheppard, the son of a chaplain of Queen Victoria, was born in Windsor Castle on 2nd September 1880. As a young man he volunteered for the British Army in the Boer War, but a horse-drawn carriage in which he was travelling crashed, leaving his leg permanently slightly lame, so his military career ended before it had begun.
Instead, Sheppard went to Cambridge University. During vacations he did social work in the East End of London. This experience radicalized him, and he became associated with progressive political ideas.
Sheppard worked as the private secretary of Cosmo Lang, the Bishop of Stepney, before being ordained in 1907. He was chaplain at Oxford House, Bethnal Green, and in 1914 became Vicar of St Martin-in-the-Fields in Trafalgar Square. On the outbreak of the First World War he went to be an army chaplain on the Western Front for some months; his experiences turned him into a pacifist.
Committed to helping the local population, Sheppard opened up the crypt of St Martin's for the homeless. In 1924 Sheppard became the BBC's "radio parson". His broadcast services made him one of Britain's best known religious figures. Ill-health forced him to resign from St Martin-in-the-Fields in 1926, but he continued to work for the BBC and to write for newspapers. He also wrote a controversial book, The Impatience of a Parson (1927) that was highly critical of the Church of England. Sheppard became Dean of Canterbury (1929-31), and a canon of St. Paul's Cathedral in 1934.
Sheppard was concerned by the failure of the major nations to agree to international disarmament, and on 16th October 1934 he had a letter published in the Manchester Guardian inviting men to send him a postcard giving their undertaking to "renounce war and never again to support another." Within two days 2,500 men responded and over the next few weeks around 30,000 pledged their support for Sheppard's campaign.
In July 1935 he chaired a meeting of 7,000 members of his new organization, Peace Pledge Union, at the Albert Hall in London. In a speech made in 1936 Sheppard argued: "You and I who were sensitive to our world in 1914, we who are 40, 50 or more, to-day, in the silence of those moments when the veil that hides us from the other world kind of wavers like gossamer in a slight breeze; we who look back into the faces of those we know and those we loved, and whom, before God, we still look upon as martyrs for peace because they died to end war, we cannot easily today, I say, forget what it cost them to do what they did, believing they were doing so to save us from that hell, nor can we forget the terrible, ghastly, awful way in which we are failing them, because it does look, doesn't it, I speak not only to you but to myself - that we are not to be depended on."
Over the next few months other prominent religious, political and literary figures including Arthur Ponsonby, George Lansbury, Fenner Brockway, Vera Brittain, Wilfred Wellock, Max Plowman, Maude Royden, Frank P. Crozier, Alfred Salter, Ada Salter, Siegfried Sassoon, Donald Soper, Aldous Huxley, Laurence Housman and Bertrand Russell, joined the Peace Pledge Union.
John Middleton Murry purchased a farm in Langham, Essex. Murry and Max Plowman established a pacifist community centre they called Adelphi Centre on the land. Murry argued he was attempting to create "a community for the study and practice of the new socialism". Plowman organised summer schools where people such as George Orwell, John Strachey, Jack Common, Herbert Read and Reinhold Niebuhr lectured on politics, philosophy and literature. During the Spanish Civil War the farm was handed over to the Peace Pledge Union. They used it to house some 60 Basque refugee children.
Sheppard became very depressed by the international situation. Alfred Salter claimed that Sheppard "admitted that love, as the main motive of his life, had failed - that it had played him false." Another friend, Fenner Brockway said: "He had had one blow after another. He realised that he had failed to create a movement of conscientious objectors sufficient to deter the nation from engaging in war. He had been subject to the limitations which the Church of England had imposed on him. He had struggled against increasing bodily weakness. Then came the final personal tragedy. His wife left him."
Richard Sheppard died on 31st October 1937.
You and I who were sensitive to our world in 1914, we who are 40, 50 or more, to-day, in the silence of those moments when the veil that hides us from the other world kind of wavers like gossamer in a slight breeze; we who look back into the faces of those we know and those we loved, and whom, before God, we still look upon as martyrs for peace because they died to end war, we cannot easily today, I say, forget what it cost them to do what they did, believing they were doing so to save us from that hell, nor can we forget the terrible, ghastly, awful way in which we are failing them, because it does look, doesn't it, I speak not only to you but to myself - that we are not to be depended on.
What I do want is to consider and discuss with you the ideas, principles and problems which have concerned genuine peace-lovers for the past twenty years. In helping to sustain the spirits of my readers (and through writing to them to invigorate my own). I hope to play a small part in keeping the peace movement together during the dark hours before us. By constantly calling on reason to mitigate passion, and truth to put falsehood to shame, I shall try, so far as one person can, to stem the tide of hatred which in wartime rises so quickly that many of us are engulfed before we realise it.
In a word, I want to help in the important task of keeping alive decent values at a time when these are undergoing the maximum strain.
My only object is to keep in close personal touch with all who are deeply concerned that war shall end and peace return and who understand what Johan Bojer meant when he wrote: "I went and sowed corn in mine enemy's field that God might exist".
Richard Sheppard's second asset was his intellectual humility. Plowman, who had certainly been surprised (and was probably flattered) by being rung up out of the blue by Sheppard and asked whether he should quit the Church, later believed Sheppard's strength lay in being "the living contrary of the modem intellectual. He was a brilliantly perceptive and imaginative man whose active love of persons prevented him from any intense concern with intellectual abstractions"...
Equally characteristic was his attempt to define his spiritual beliefs in a note to Ponsonby on 14 May 1936: "As to my own religious faith, I am blowed if I know exactly where I stand. I am mostly a Quaker these days but Jesus Christ, man or God, (I have never wished to define him) is the hero I would wish to follow."
It was Sheppard's brilliant achievement to turn into a positive asset this notable weakness as an abstract thinker. With the Sponsors divided over what policy the P.P.U. should adopt, Sheppard's lack of defined views enabled him to devote his energies to teasing out what he thought to be their general will. Such positive opinions as he held, moreover, were middle-of-the-road: he was opposed to adopting either a collaborative orientation towards collective security, as he made clear in We Say "No", or a position of sectarian quietism, as when he whispered to Kingsley Martin, one of the guests invited to his flat to meet Gregg on 17 July 1936: "Can't you get up and tell them that we haven't time for all this intensive cultivation and that our job is to stop the next bloody war." Indeed, essential to his Christianity was his faith that a middle position could be occupied that was sufficiently pure and idealistic to stand outside the self-defeating compromises of politics while at the same time sufficiently relevant and practical to have wide-ranging regenerative power. Just as he had always called for a Church "that was in the world but not of it", he was still calling a fortnight before his for support for pacifism.
On October 31, 1937, Dick Sheppard died. This was a severe loss to the pacifist movement. Salter was distressed specially because in his last weeks Sheppard lived under a sense of failure. Later the doctor delivered a remarkable address on the intimate tragedy which marked the end of his friend's life. Sheppard had presented love as the sovereign remedy and solvent for evil. "Yet in the end," said Salter, "he admitted that love, as the main motive of his life, had failed - that it had played him false." He had had one blow after another. His wife left him. "I will never preach again," Sheppard said in his despair and humiliation. On the day before his death Dick's wife telephoned asking if she could come back. He replied, "It must wait till Monday." The next day he was found dead in his chair. "A terrible tragedy," commented Salter, "yet it was not evidence of God's failure or even the failure of love. If Dick Sheppard had been a little more patient, "he might have felt differently. He might have realised that his love for his wife had not been lost but refound, that he could have gone on preaching the eternal truth that love never faileth."
Whilst Dick Sheppard lived the Peace Pledge Union was run under his personal leadership with a group of sponsors as his advisers. After his death a general meeting of delegates from branches was held and a democratic constitution adopted. George Lansbury was appointed president and a representative council elected. Salter was asked to join the panel of sponsors and from this time on took an active interest in the national affairs of the Union. It was the strongest pacifist organisation that had ever existed in Britain and was a source of great inspiration and hope to the doctor.
A sensationalized murder trial inspires "The Fugitive"
Marilyn Sheppard is beaten to death inside her suburban home in Cleveland, Ohio. Her husband, Dr. Sam Sheppard, claimed to have fallen asleep in the family’s living room and awakened to find a man with bushy hair fleeing the scene. The authorities, who uncovered the fact that Dr. Sheppard had been having an affair, did not believe his story and charged him with killing his pregnant wife.
Creating a national sensation, the media invaded the courtroom and printed daily stories premised on Sheppard’s guilt. The jurors, who were not sequestered, found Sheppard guilty. Arguing that the circumstances of the trial had unfairly influenced the jury, Sheppard appealed to the Supreme Court and got his conviction overturned in 1966. Yet, despite the fact that Sheppard had no previous criminal record, many still believed that he was responsible for his wife’s murder.
The Sheppard case brought to light the issue of bias within the court system. Jurors are now carefully screened to ensure that they have not already come to a predetermined conclusion about a case in which they are about to hear. In especially high-profile cases, jurors can be sequestered so that they are not exposed to outside media sources. However, most judges simply order jurors not to watch news reports about the case, and rely on them to honor the order.
Sheppard’s case provided the loose inspiration for the hit television show The Fugitive, in which the lead character, Richard Kimble, is falsely accused of killing his wife, escapes from prison, and pursues the one-armed man he claimed to have seen fleeing the murder scene.
In 1998, DNA tests on physical evidence found at Sheppard’s house revealed that there had indeed been another man at the murder scene. Sheppard’s son, who had pursued the case long after his father’s death in order to vindicate his reputation, sued the state for wrongful imprisonment in 2000, but lost.
The case against Sam Sheppard
Sheppard's fate seemed sealed from the get-go. He didn't have the luxury of a camera crew to film the murder. There were no scriptwriters to steer his story in a positive direction. And he couldn't count on 1950s forensics to decisively determine his guilt or innocence. The doctor's fate depended on the strength of his words, the unbelieving ears of the public, and his own dubious actions.
In the immediate aftermath of the crime, Sheppard looked like a culprit trying to hide his blood-red hands. As the Washington Post detailed, for days the doctor deemed himself medically unfit for interrogation. Another physician backed that position, but it was Sheppard's older brother, Stephen. Sheppard additionally balked at requests to take a polygraph test or any kind of truth serum. Did he have something to hide? Unquestionably.
For three years, Sheppard had cavorted with nurse Susan Hayes. He dazzled her with gifts, and she gave him her heart. He then resolutely lied about his extramarital affair to authorities. But much to the doctor's dismay, Hayes didn't. She instantly became the linchpin of the prosecution's case, which alleged that Sheppard slayed his wife during a fight about Hayes.
Hayes was only one of several courtroom haymakers. Investigators had found what seemed to be Marilyn Sheppard's blood on her husband's watch. Moreover, the coroner implied in court that the murder weapon (which never surfaced) was a surgical tool. Predictably, the jury found Sheppard guilty and he received a life sentence.
Richard Sheppard - History
Eberling Didn't Do It: Ten Reasons to Believe He's Innocent
1. As much reason as their might be to suspect Eberling, there's even more reason to believe Sam murdered Marilyn. See: DID SAM DO IT?
2. Despite the conclusion of an expert for the Sheppard family who found only 1 of 42 people having DNA profiles matching blood in Marilyn's bedroom, and that Eberling--but not Sam Sheppard--was among the small group with a consistent DNA profile, the blood evidence points in the other direction. Eberling had type A blood. No type A blood was found in the Sheppard bedroom.
3. Despite Eberling's confessions and near-confessions, there is reason to doubt their validity. Eberling was facing life in prison anyway, so what did it matter to him if people suspected him of killing Marilyn? He might have enjoyed all the attention from the media and litigators that came from his Sheppard connection and his statements about the case.
4. Eberling offered several demonstrably false accounts of the Sheppard murder. He spun a wild story about a double murder committed by Spencer and Esther Houk, for example. In short, he's a known liar.
5. Eberling passed a lie detector test in 1959. His answer that he did not kill Marilyn showed no signs of deception, according to the evaluating expert at the time.
6. In 2004, a dying man who worked for Dick's Window Cleaning service said it was he--and not Eberling, as Eberling had said--who washed windows at the Sheppard home two days before the murder, on July 2, 1954.
7. There was no sign of forced entry into the Sheppard home.
8. Sam Sheppard, even as he sat near Eberling as Eberling gave testimony in Sam's 1966 retrial, never suggested that Eberling was the "bushy-haired man" that he fought with on July 4, 1954. In fact, Sheppard, working with attorney F. Lee Bailey, helped develop the Houks-as-murderers theory.
9. Eberling had no clear motive for killing Marilyn. Nothing belonging to the Sheppards was found in Eberling's house except Marilyn's cocktail ring--and that was stolen three years after her murder from a box at the home of another member of the Sheppard family.
10. Eberling's fingerprints did not turn up in a search of the Sheppard home. Sam's, of course, did.
April 29, 1996: Kathie Collins, the former nurse for Durkin, says that Eberling revealed to her that he killed Marilyn Sheppard. Eberling later denies ever making such a statement.
March 4, 1998: Terry Gilbert, lawyer for the Sheppard family, announces that DNA tests performed by Dr. Mohammed Tahir of the Indianapolis -Marion County Forensic Services Agency, exclude Sam Sheppard as the source of blood found at the murder scene and show that the blood of Eberling is consistent with the blood type found at the scene.
July 25, 1998: Richard Eberling dies while serving a life sentence for murder.
August 19, 1998: Robert Lee Parks, an inmate at the Oriental Correctional Institution, says that shortly before he died, Eberling confessed to Marilyn Sheppard's murder.
In Eberling's Own Words
(Source: Cooper and Sheppard, A Mockery of Justice (1995), pp. 314-316)
Question: What would you like to be remembered for?
Eberling: Actually, nothing. I'd like to dry up and go away. I'd like to be remembered for good things. I helped people out. I've been very considerate of people.
Eberling: I'm a pretty self-reliant person.
Eberling: That means I can cope on my own. Even in here [prison].
Question: Is that part of the problem?
Eberling: I cope with that also. I think I can control myself
Question: Well, yes, but can you control events around you?
Eberling: Probably. Like I know I'm gonna be out of here. I'll kick and scream until I get out. The only thing I know [is] it takes time.
Question: What do you do when you get mad?
Eberling: I don't normally get mad. In here, I've learned more patience than ever. I ride over it.
Question: Where does the anger go?
Eberling: It's just held within. It wastes itself out. It just works itself out.
Question: What did you think of Marilyn Sheppard?
Eberling: Marilyn had trouble up till the day she died. She was a lovely lady. A very fine lady. She was very respectable. I think she was lone­some because she let a lot of family dirt out to me.
Question: Would you have dated Marilyn Sheppard if you had met her before [Dr.] Sam?
Eberling: I probably would have dated her once or twice. [Shaking his head.] Probably not. I was an orphan, she was a golden girl. A golden girl looks for posi­tion, and me, being a nobody . I wasn't good enough.
Eberling: (Referring to a claimed rape, unrelated to the Sheppard case): If she paraded for him like she paraded for me, she asked for it. She was all dolled up in the middle of the afternoon for the window washer. Put on all that feminine charm.
Question: Why do you say, "She asked for it"?
Eberling: Beguiling ways. Built the heat up. A man doesn't walk into a woman's house and rape her unless something provoked him. I place the blame on her. She decorated that place like a cheap whorehouse. The way the house was decorated it set a provocative mood.
Question: You're saying that a man.
Eberling: I know that does not call for raping a woman. None of that calls for raping a woman. Rape-usually it's an intentional thing. I can't understand how a man can enter a woman's home and rape her. Unless the husband went someplace&hellip
Question: Do you know about an attempted rape of Marilyn Sheppard?
Eberling: I don't believe there was an attempt to rape. Rape was not as common as today. For a neighbor to go in that would not have made sense. That would have closed off all social avenues.
Question: A prisoner wrote and said that he met a man who worked for a hospital in a bar outside Cleveland, this was in the seventies, and the man said he had murdered Mrs. Sheppard.
Eberling: If Sam had hired someone to kill Marilyn, it would be a differ­ent story. I don't know why anyone would say that. Some things you tell and some things you don't tell. Why would anyone sit in a bar and claim that?
Question: A detective named Howard Winter wrote an article in the fifties, and he thought the murderer was someone who had been watch­ing Mrs. Sheppard, maybe knew her casually, and was emotionally dis­turbed or unstable in some way, confused about his sexuality.
Eberling: Nobody in the neighborhood fits that.
Question: What did you mean you said Esther Houk's mind was on a merry-go-round?
Eberling: I think that's what happened. The more she thought the more she thought. After the deed was done, Spen thought he could cover it up.
Question: That merry-go-round, is that like what happens to you?
Eberling: Yep. My mind goes a mile a minute.
Question: What would happen if you were in touch with your feelings?
Eberling: I think I have feelings. I have feelings. Like this place [prison] I consider my home. The guards I consider babysitters.
Question: Is that a feeling?
Eberling: That's a feeling. So I don't hate it I just adjusted to it.
Eberling: I've never thought about my feelings and "do I love myself."
When it comes up, I don't think about it. I don't expel on it.
Eberling: I have a staying power. I hurt. My mind just churns around.
Question: How would you feel if you did something that you didn't know about?
Eberling: I would be lost in another world. If you are referring to my blackouts, I don't honestly think that I ever went into another person­ality
Question: What happens when you go into blackouts?
Eberling: It just hits me. I can't recount every moment leading up to this feeling. It's like switching a light plate. A light switch.
Eberling: To understand Richard a bit better. He always looks to tomor­row and feels the streets are littered with gold. Meaning all one has to do is to stoop over and pick it up.
Question: Why do you refer to yourself in the third person, such as, "Richard thinks this," or "Richard says that"?
Eberling: I go through my writings and take the I's out on purpose. It's too pretentious.
Question: But why the third person like this. "Richard believes"? (Showing him)
Eberling: I do write strange. I know that. I don't know why. Some­times I treat myself as a subject. Have I done that before?
They're trying to take things away from me. Things that have hap­pened to me are most abnormal. I'm a very arrogant individual. I learned I come across as arrogant- but I'm not really. The average person's never gone through this journey in life. The journey I embarked on -it's good, it's interesting. It's not dull by any means.
Eberling: People have a secret side-a lot of people never show it, ever. . I am very much to myself.
Eberling: On Sheppard. it'll go to my grave. And I hate it.
Eberling: If you are my downfall, I really don't care. If I go to the electric chair, that's no problem. It isn't important any more. Life isn't important any more.
Eberling: The Sheppard answer is in front of the entire world. Nobody bothered to look.
Richard Eberling and the Sheppard Case
At the time of the Sheppard murder, twenty-five-year-old Richard Eberling operated a small company called Dick's Window Cleaning. Among his company's clients were Marilyn and Sam Sheppard. Eberling, by his own account, barely knew Sam , but developed a fairly close relationship with Marilyn Sheppard. He recalled having brownies and milk with Marilyn and Chip in the Sheppard home. His comments also suggest he found Marilyn sexually attractive: "Oh, she had that California look. Tight little brief shorts and a very little blouse. She was immaculate, all in white."
In 1959, Eberling was arrested for larceny after a client of his reported money stolen and suggested him as the likely criminal. A search of Eberling's home turned up wads of cash and jewelry. Among the items recovered by police was a cocktail ring owned by Marilyn Sheppard. During questioning following his arrest, police asked--playing a hunch, perhaps--why his blood was found in the Sheppard home following Marilyn's murder (in fact, his blood had not been found). Much to the surprise of his interrogators, Eberling said that two days before the murder, while washing windows at the Sheppard home, he had cut a finger while installing screen windows. Eberling's answer made police sufficiently suspicious that they pushed him to take a lie detector test and answer questions about the Sheppard murder. Eberling indicated his willingness to do so. In November, Eberling took a polygraph test. His examiner, A. S. Kimball, concluded that Eberling did not show deception when he said that he did not kill Marilyn Sheppard. Later, other polygraph experts reviewing the data would call the results "inconclusive."
In the 1966 re-trial of Sam Sheppard, defense attorney F. Lee Bailey chose not to focus on Eberling as a suspect in the Sheppard murder. A strong believer in polygraph tests, Bailey assumed him cleared by virtue of his 1959 test. Instead, Bailey suggested that the murder was probably committed by Sheppard friends, Spencer and Esther Houk--with Esther's motivation being that Marilyn was having an affair with Spencer. Bailey actually called Eberling to the stand as a defense witness in the 1966 trial. Testifying only feet away from Sam Sheppard, Sam never suggested, "That's the man--that's the guy I wrestled with and who knocked me out twelve years ago."
Following a fine and a ninety-day suspended sentence for grand larceny, Eberling made a rather remarkable recovery that would catapult him into Cleveland's social elite. Cleveland's Republican mayor, Ralph Perk, had hired Eberling's partner, Obie Henderson, as a personal assistant. Though Obie's relationship with the mayor, Eberling succeeded in convincing the mayor's wife that she should hire him to decorate her home. Soon Eberling's interior decorating business took off, and he began hosting elaborate parties and landing ever richer clients. In 1973, he won a contract to restore Cleveland's historic City Hall. (By 1977, however, his arrogance had made enemies, and he was fired by new Cleveland mayor--and 2004 Democratic presidential candidate--Dennis Kucinich.)
As would eventually become clear, Eberling's criminal ways had not ended with his arrest for grand larceny in 1959. He committed elaborate insurance fraud. He befrauded elderly women. He even killed.
One person he killed was Ethel May Durkin, an elderly widow. (Some also suspect Eberling in the death of Durkin's sister, Myrtle Fray, who was brutally beaten on the head and strangled in her bed on May 20, 1962--a murder similar in many respects to the Sheppard murder.) In the late-1970s, Eberling became a nurse's aide for Durkin. Over time, Durkin came to trust Eberling and paid him handsomely. Around 1981, Ebrling revealed he was constructing a new will for "the old bat." On November 15, 1983, paramedics raced to the home of Ethel May Durkin to discover her facedown and comatose on her hardwood floor. Eberling, who identified himself as her nephew, told paramedics she had been walking, then fell face forward on to the floor. The nature of her injuries, and what medical evidence suggested was a lengthy delay between the injury and the emergency call, raised suspicion. Eventually, what started as an insurance investigation turned into a murder investigation. Eberling was convicted of forgery, theft, and aggravated murder in July 1989.
Eberling's conviction led to renewed interest in him as the possible murderer of Marilyn Sheppard. Many people suggested that Eberling's background as an illegitimate child who had been abandoned by his parents (he never met his father) fit the profile of someone who might brutally murder a beautiful young woman like Marilyn. Sam's brother, psychiatrist Dr. Steve Sheppard, suggested that Eberling might have released his "violent jealousy" of the successful Sheppard family through his attack on Marilyn.
In the years that followed, persons investigating the Sheppard case, such as James Neff, author of The Wrong Man, spent many hours interviewing Eberling in the hopes of gaining a confession to the Sheppard killing. Ultimately, he would disappoint, but some of his remarks might be seen as tantalizingly close to admissions of guilt. Neff reported, for example, that Eberling said he "fully expected" to be convicted of murdering Marilyn back in 1954. He complained that Sam Sheppard, who he called "a prick," ignored him. Most tellingly, Neff contends, Eberling, in an interview conducted shortly before his death in prison in 1998, described finding himself in the bloody bedroom of Marilyn Sheppard: "My God, I had never seen anything like it. I got out of there."
Despite the suspicion raised by Eberling's comments on the Sheppard case, and despite evidence produced by experts hired in Sam Sheppard's wrongful imprisonment suit suggesting a likelihood of Eberling's blood being present on the closet door next to the bloody Marilyn Sheppard, a civil jury in Cleveland in 2000 found for the county and against Sheppard. The jury, it seemed, still believed Sam Sheppard to be the more likely killer.
Facts Suggesting Eberling as a Suspect in the Sheppard Murder
(As outlined in Sam Reese Sheppard's Petition for a Declaration of Innocence,
filed October 19, 1995)
Richard Eberling, when arrested for a series of burglaries and thefts in 1959 (including the theft of Marilyn Sheppard's ring from the home of Dr. Sheppard's brother), disclosed that he had cut his hand washing windows at the Sheppard home, but gave conflicting times and dates as to when that supposedly occurred. In 1990, investigators tracked down a co-worker of Eberling who insisted that he, not Eberling washed the windows at the Sheppard home in the days before the murder. Incidentally, Eberling was not interrogated by police at the time of the murder, and in 1959, when Eberling was in custody, police were told to drop the matter by Coroner Gerber, Dr. Sheppard's principal accuser, as well as John T. Corrigan, the County Prosecutor.
A Scientific Investigation Unit report, also never disclosed by the prosecution, reveals that there was fresh evidence of forcible entry through the cellar door. The finding was significant enough to require a plasticine impression of the damaged doorway. Yet, the prosecution's most powerful argument against Dr. Sheppard was that there was no evidence of a break-in, and that Dr. Sheppard was the only one in the house at the time of the murder. That theory can now be debunked because the killer entered through the basement, an entry only known to a small number of people, including Eberling.
The re-investigation focused on Richard Eberling as a suspect, who is now serving a life imprisonment for the murder of Ethel Durkin. Eberling has a long and documented history of psychosis and psychopathic symptoms, beginning with neurological impairment as a child. His medical, psychological, and behavioral patterns are consistent with those of disturbed and even serial killers. The investigation reveals other unsolved killings of women, including the sisters of Ms. Durkin and others, with striking similarities to, the Sheppard murder. Eberling was obsessed with Marilyn Sheppard as indicated by his focus on owning her ring. He was a jewel thief and burglar, and on the' night of the murder, jewelry and cash were taken from the home. He was jealous of the Sheppard&rsquos and their success in life, and the family he never had. He hated Dr. Sheppard for his athletic accomplishments, and two athletic trophies were smashed to the floor on the night of the murder, evidence of hostility and hatred. Eberling had a remarkable knowledge of the description of the property and the furnishings, and as of 1992, was able to draw an architecturally accurate drawing of the property. He cannot truthfully account for his whereabouts at the time of the murder. He fits all the available descriptions of the killer, including the build, the height, the large head, and the use of wigs. The police drawings derived from eyewitnesses who saw a man near the Sheppard home that evening, reveal a similarity to Eberling. Finally, Eberling, who granted a number of interviews and corresponded with Cynthia Cooper since 1992, has been obsessed with the Sheppard murder case and Marilyn Sheppard herself, and has made statements such as "why do women fight back when they are raped?" or "I'm looking at her now and she doesn't look pregnant." There is evidence that Marilyn Sheppard was sexually assaulted, as inferred by her nightgown pushed above her abdomen, yet this aspect was never pursued by the police.
The evidence will show that Eberling had motive, opportunity, identity, and access to kill Marilyn Sheppard.
Richard Sheppard - History
William Sheppard-244 [Parents] was born in 1705 in , , England. He died on 20 Apr 1785. He was buried in Towcester, Northamptonshire, England.
NOTE listed as G G Grandfather of claimant on a listing prepared by J H Lydall, Solicitor, of Southampton Building, Chancery Lane. Gives year of birth, full date of death and place of burial.
He had the following children:
John Sheppard-245 [Parents] was born in 1657 in , , England. He died in 1713. He was buried in Towcester, Northamptonshire, England.
NOTE 1711 - he is mentioned in the will of Vincent, Haberdasher of London and of Richmond, Surrey, as his brother.
NOTE listed as G G G Grandfather of claimant on a listing prepared by J H Lydall, Solicitor, of Southampton Building, Chancery Lane. Gives year of birth, year of death, place of burial and occupation as Maltster. He is bracketed together as the third of three presumed brothers.
He had the following children:
William Sheppard-246 [Parents] was born about 1620. He died on 16 Oct 1689. He was buried in Hanslope, Buckinghamshire, England. He married Mary-252.
NOTE listed at the top of the list of ancestors of Samuel Sheppard prepared by J H Lydall, Solicitor, of Southampton Building, Chancery Lane. Gives year of birth with a question mark after it, full date of death as 28 Aug 1689, and place of burial.
WILL of William Sheppard of Hanslope lists children as William, Mary (Wooden), Vincent, and John, and his wife as Mary.
DEATH date listed here is from the proving of his will.
Mary-252 was born about 1625. She died after 1689. She married William Sheppard-246.
BIRTH my estimate.
NOTE named in will of husband.
They had the following children:
NOTE 1711 - he is mentioned in the will of Vincent, Haberdasher of London and of Richmond, Surrey, as his brother.
Benjamin Wooden-250.Benjamin married Mary Sheppard-249.
NOTE known from the will of his father-in-law.
Mary Sheppard-249 [Parents] was born about 1652. She married Benjamin Wooden-250.
BIRTH my estimate.
NOTE known from the will of her father. She was married to Benjamin Wooden and had a daughter Mary.
They had the following children:
Sheppard-254 died before 1837. He married Mary Deacon-182.
NOTE known from the will of his widow in 1837.
Mary Deacon-182 was born about 1781 in , England. She died about 1837. She married Sheppard-254.
MARRIAGE Towcester Parish Ch. Northants Rec. Off. ref.329P/10 no.186. A spinster of the parish of Towcester.
NOTE will transcription seen. The dates for birth and death are handwritten at the top of the transcript and I do not know their accuracy. The will is of Mary Sheppard, widow of Towcester. It names her brother Samuel Deacon, her niece Mary Gleed Howes, her son in law Richard Edward Sheppard of Towcester, Mary Sheppard wife of William Sheppard of Abthorpe, Martha and Rachel Burnhill, sisters of this Mary Sheppard.
William Sheppard-255 was born before 1815. He died after 1837. He married Mary Burnhill-256 on 25 Feb 1831 in Abthorpe, Northamptonshire, England.
MARRIAGE from Northants Marriage CD, a bachelor. Information from Paul Woodward (email June 2007).
NOTE listed in will of Mary Sheppard, widow of Towcester, as William Sheppard of Abthorpe, a framework knitter.
Mary Burnhill-256 [Parents] was born before 1815. She died after 1837. She married William Sheppard-255 on 25 Feb 1831 in Abthorpe, Northamptonshire, England.
MARRIAGE from the Northants Marriage CD, a spinster. Information from Paul Woodward (email June 2007).
NOTE listed in will of Mary Sheppard, widow of Towcester, as wife of William Sheppard of Abthorpe. Her two sisters are also mentioned in this will.
Robert Burnhill-257 was born before 1772 in , , England. He married Rachel Faulkner-334 on 3 May 1792 in Abthorpe, Northamptonshire, England.
BIRTH my estimate.
MARRIAGE from Paul Woodward (email June 2007), but there is no proof that this is the father of the girls listed. However if it quite likely as the dates of birth and names of the girls fit. He was a bachelor.
Rachel Faulkner-334 was born before 1772 in , , England. She married Robert Burnhill-257 on 3 May 1792 in Abthorpe, Northamptonshire, England.
BIRTH my estimate.
MARRIAGE from Paul Woodward (email June 2007), but there is no proof that this is the mother of the girls listed. However if it quite likely as the dates of birth and names of the girls fit. She was a apinster.
They had the following children:
Robert Wickens-261 was born before 1590. He married Mary-276.
KNOWN from memorial plaque to his daughter, where is listed as late of Stoke Bruerne.
NOTE Val Moore (email July 2007) reports that a grant of arms was made to Tobert Wickens of Stoke Bruerne by letters patent dated 13 May 1642. (source, College of Arms).
Mary-276 died after 1655. She married Robert Wickens-261.
KNOWN from will of her husband.
They had the following children:
William Wickens-248 [Parents] died about 1661.
NOTE in his father's will written before 1655 he is listed as the executor. He had given him a loan of 100 pounds, and wrote this off in the will. His children are listed but not by name or even how many, they were still under 18 years of age.
NOTE his will was written 16 Sep 1659 and proved 9 May 1661. It lists sons Robert, William, John and Anthony, and daughter Mary. His wife is not mentioned so it is assumed she had died. He listed Anthony as his eldest son, and the only married daughter was Mary. Robert was to pay each of the others five pounds, each one year after the previous one.
He had the following children:
Richard Nailour-263 [Parents] was born about 1610 in , , England. He died about 1671. He was buried in Stoke Bruerne, Northamptonshire, England. He married Jane Wickens-253 on 28 Jul 1640 in Stoke Bruerne, Northamptonshire, England.
MARRIAGE on NRO fiche 303p/17, fiche 8. very faint.
KNOWN from memorial plaque to his wife.
NOTE He was the main beneficiary of the will of Robert Wickens his father-in-law.
DEATH from will of 18 May 1671, which requests that he be buried in the church near to his seat there, with a memorial plaque with his coat of arms. The will was probated in March 1672 "English Style".
NOTE the will mentioned a Cousin Anne Wilson, widow of Cotton end. It also mentioned a sister Dame Katherine Wingfield and her daughter Betty, also three nephews, Richard Nailour of Offord and his brother William and Henry. Another cousin mentioned is Mrs Martha Richard, widow, and her son William.
NOTE Val Moore (email July 2007) reports that he is listed as 4th son of Richard and Katherine.(source, visitation records of College of Arms, 1613). The visitation of 1684records him as of Brigstock and afterwards of Stoke Bruerne. He harried as his second wife Jane, daughter of Robert Wickins. This record lists his deat as about 1670.
Jane Wickens-253 [Parents] was born about 1611 in , , England. She died on 21 Jan 1655/1656. She married Richard Nailour-263 on 28 Jul 1640 in Stoke Bruerne, Northamptonshire, England.
BAPTISM not found in Stoke Bruerne parish records.
MARRIAGE on NRO fiche 303p/17, fiche 8. very faint, she is listed as Ms or Mrs Jane Wickens, but it is not clear enough to assume that this was a second marriage. The memorial below makes her heiress to William Wickens unless this is through her first husband.
KNOWN from memorial of her death at Stoke Bruerne church. She is listed as the daughter of Robert Wickens, late of Stoke Bruerne.
NOTE in a memorial to Richard Sheppard, his mother is listed as the heiress to Richard and Jane Nailour, who is an heiress to William Wickens.
BAPTISM not found in Stoke Bruerne parish records.
MARRIAGE on NRO fiche 303p/17, fiche 8. very faint, she is listed as Ms or Mrs Jane Wickens, but it is not clear enough to assume that this was a second marriage. The memorial below makes her heiress to William Wickens unless this is through her first husband.
KNOWN from memorial of her death at Stoke Bruerne church. She is listed as the daughter of Robert Wickens, late of Stoke Bruerne.
NOTE in a memorial to Richard Sheppard, his mother is listed as the heiress to Richard and Jane Nailour, who is an heiress to William Wickens.
NOTE Val Moore (email July 2007) reports that she was the second wife of Richard Nailour. (source, visitation records of College of Arms, 1684).
They had the following children:
BIRTH from chart by Sheila Jelley it is listed as 1631 but this is before the parents' marriage date.
KNOWN from plaque to her mother.
NOTE she was named in the will of Robert Wickens her grandfather which implies that she was not yet 21 in 1654.
KNOWN from memorial to mother. Also a personal memorial which says she died a virgin on 15 May 1677.
In interviews with law enforcement, Sheppard claimed that after he discovered his wife’s body, he was hit on the head twice and knocked out by a "bushy-haired" assailant. But after police failed to find evidence of a break-in and Sheppard’s extramarital affair was exposed, he became the investigation’s prime suspect, and in August 1954 he was indicted by a grand jury. After the much-publicized trial and lengthy deliberation, the jury found Sheppard guilty of second-degree murder, and he was sentenced to life in prison.
Though Sheppard’s attorney argued that prejudicial publicity had made a fair trial impossible, his appeal was denied. But in 1964, after an aggressive attorney named F. Lee Bailey took up the fight, Sheppard was released from prison. A federal appeals court soon reinstated his conviction, and Sheppard was faced with a retrial. This time, without cameras and with few reporters, on November 16, 1966, the jury found Sheppard not guilty, due in large part to the mishandling of the first trial.
Sam Sheppard, the inspiration for “The Fugitive,” dies
On April 6, 1970, Sam Sheppard, a doctor convicted of murdering his pregnant wife in a trial that caused a media frenzy in the 1950s, dies of liver failure. After a decade in prison, Sheppard was released following a re-trial. His story is rumored to have loosely inspired the television series and movie “The Fugitive.”
On July 4, 1954, Sheppard’s wife Marilyn was beaten to death in the couple’s Bay Village, Ohio, home. Sheppard, an osteopathic doctor, contended the 𠇋ushy-haired” attacker had beaten him as well. The Sheppards’ son slept through the murder in a bedroom down the hall. Sam Sheppard was arrested for murder and stood trial in the fall of 1954. The case generated massive media attention, and some members of the press were accused of supporting the perception that Sheppard was guilty. Prosecutors argued that Sheppard was motivated to kill his wife because he was cheating on her and wanted out of his marriage. In his defense, Sheppard’s attorney said his client had sustained serious injuries that could only have been inflicted by an intruder.
Lawyer: New DNA tests point to killer in Sheppard case
Gilbert also accused investigators of overlooking evidence that Mrs. Sheppard was raped.
"Her pajama tops were above her breasts and her pajama bottoms were down by her knees, clear indication of a sexual assault crime, completely overlooked by the investigators because it did not fit the theory of a husband . who might want to get rid of his wife because he might be having an affair," the attorney said.
Semen taken from Mrs. Sheppard matches Eberling's genetic makeup, but could also have come from her husband, Gilbert said.
Reopening investigation unlikely
The results announced Thursday are from DNA tests conducted by Mohammad Tahir, an Indianapolis forensics expert.
|Marilyn and Sam Sheppard|
Even before the new findings were revealed, prosecutors downplayed the validity of the new DNA tests, saying the crime scene was trampled.
What the Sheppard team "interprets as good news may not be reliable evidence," said Cuyahoga County Prosecutor Stephanie Tubbs Jones, who opposes reopening the criminal case.
Her position angers Gilbert, who has spent eight years seeking to prove the elder Sheppard was wrongly convicted of murdering his wife.
"The prosecutor's office has the duty to investigate crime," he said, "and when a victim comes to them with evidence of crime, they have a responsibility by law to follow through."
Wrongful-imprisonment suit still pending
Dr. Sam Sheppard, who died nearly penniless of liver disease at age 46 in 1970, always insisted that a "bushy-haired intruder" killed his wife and knocked him unconscious after a struggle on the night of July 4, 1954.
He said he was dozing on a downstairs couch when he was awakened by his wife's screams from her upstairs bedroom.
Sheppard spent 10 years in prison after he was found guilty of murder. But the U.S. Supreme Court overturned his conviction, and he was acquitted at a retrial in 1966.
His estate is suing the state of Ohio, alleging wrongful imprisonment. The estate could collect about $2 million if the doctor is found innocent -- a tougher legal standard than a "not guilty" verdict.
Prosecutors have asked the Ohio Supreme Court to dismiss the suit. A ruling is expected this spring.
The DNA results will not be presented to the court, which is ruling only on the dismissal motion. The results will be presented as evidence if the suit goes to trial.
- Attorney says DNA test supports Sam Sheppard's innocence - March 5, 1998
- Sam Sheppard's remains exhumed for DNA testing - September 17, 1997
- Judge sets new hearing in 'Fugitive' case - May 8, 1997
- New evidence could overturn verdict in 'Fugitive' case - June 14, 1996
- Case that inspired TV series lives on - March 1, 1996
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Samuel H. SHEPPARD, Petitioner, v. E. L. MAXWELL, Warden.
Samuel H. SHEPPARD, Petitioner,
E. L. MAXWELL, Warden.
F. Lee Bailey, Boston, Mass., for petitioner.
Bernard A. Berkman, Cleveland, Ohio, for American Civil Liberties Union, and others, as amici curiae.
William B. Saxbe, Columbus, Ohio, and John T. Corrigan, Cleveland, Ohio, for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
This federal habeas corpus application involves the question whether Sheppard was deprived of a fair trial in his state conviction for the second-degree murder of his wife because of the trial judge's failure to protect Sheppard sufficiently from the massive, pervasive and prejudicial publicity that attended his prosecution.1 The United States District Court held that he was not afforded a fair trial and granted the writ subject to the State's right to put Sheppard to trial again, 231 F.Supp. 37 (D.C.S.D.Ohio 1964). The Court of Appeals for the Sixth Circuit reversed by a divided vote, 346 F.2d 707 (1965). We granted certiorari, 382 U.S. 916, 86 S.Ct. 289, 15 L.Ed.2d 231 (1965). We have concluded that Sheppard did not receive a fair trial consistent with the Due Process Clause of the Fourteenth Amendment and, therefore, reverse the judgment.
Marilyn Sheppard, petitioner's pregnant wife, was bludgeoned to death in the upstairs bedroom of their lakeshore home in Bay Village, Ohio, a suburb of Cleveland. On the day of the tragedy, July 4, 1954, Sheppard pieced together for several local officials the following story: He and his wife had entertained neighborhood friends, the Aherns, on the previous evening at their home. After dinner they watched television in the living room. Sheppard became drowsy and dozed off to sleep on a couch. Later, Marilyn partially awoke him saying that she was going to bed. The next thing he remembered was hearing his wife cry out in the early morning hours. He hurried upstairs and in the dim light from the hall saw a 'form' standing next to his wife's bed. As he struggled with the 'form' he was struck on the back of the neck and rendered unconscious. On regaining his senses he found himself on the floor next to his wife's bed. He rose, looked at her, took her pulse and 'felt that she was gone.' He then went to his son's room and found him unmolested. Hearing a noise he hurried downstairs. He saw a 'form' running out the door and pursued it to the lake shore. He grappled with it on the beach and again lost consciousness. Upon his recovery he was lying face down with the lower portion of his body in the water. He returned to his home, checked the pulse on his wife's neck, and 'determined or thought that she was gone.'2 He then went downstairs and called a neighbor, Mayor Houk of Bay Village. The Mayor and his wife came over at once, found Sheppard slumped in an easy chair downstairs and asked, 'What happened?' Sheppard replied: 'I don't know but somebody ought to try to do something for Marilyn.' Mrs. Houk immediately went up to the bedroom. The Mayor told Sheppard, 'Get hold of yourself. Can you tell me what happened?' Sheppard then related the above-outlined events. After Mrs. Houk discovered the body, the Mayor called the local police, Dr. Richard Sheppard, petitioner's brother, and the Aherns. The local police were the first to arrive. They in turn notified the Coroner and Cleveland police. Richard Sheppard then arrived, determined that Marilyn was dead, examined his brother's injuries, and removed him to the nearby clinic operated by the Sheppard family.3 When the Coroner, the Cleveland police and other officials arrived, the house and surrounding area were thoroughly searched, the rooms of the house were photographed, and many persons, including the Houks and the Aherns, were interrogated. The Sheppard home and premises were taken into 'protective custody' and remained so until after the trial.4
From the outset officials focused suspicion on Sheppard. After a search of the house and premises on the morning of the tragedy, Dr. Gerber, the Coroner, is reported—and it is undenied to have told his men, 'Well, it is evident the doctor did this, so let's go get the confession out of him.' He proceeded to interrogate and examine Sheppard while the latter was under sedation in his hospital room. On the same occasion, the Coroner was given the clothes Sheppard wore at the time of the tragedy together with the personal items in them. Later that afternoon Chief Eaton and two Cleveland police officers interrogated Sheppard at some length, confronting him with evidence and demanding explanations. Asked by Officer Shotke to take a lie detector test, Sheppard said he would if it were reliable. Shotke replied that it was 'infallible' and 'you might as well tell us all about it now.' At the end of the interrogation Shotke told Sheppard: 'I think you killed your wife.' Still later in the same afternoon a physician sent by the Coroner was permitted to make a detailed examination of Sheppard. Until the Coroner's inquest on July 22, at which time he was subpoenaed, Sheppard made himself available for frequent and extended questioning without the presence of an attorney.
On July 7, the day of Marilyn Sheppard's funeral, a newspaper story appeared in which Assistant County Attorney Mahon—later the chief prosecutor of Sheppard—sharply criticized the refusal of the Sheppard family to permit his immediate questioning. From there on headline stories repeatedly stressed Sheppard's lack of cooperation with the police and other officials. Under the headline 'Testify Now In Death, Bay Doctor Is Ordered,' one story described a visit by Coroner Gerber and four police officers to the hospital on July 8. When Sheppard insisted that his lawyer be present, the Coroner wrote out a subpoena and served it on him. Sheppard then agreed to submit to questioning without counsel and the subpoena was torn up. The officers questioned him for several hours. On July 9, Sheppard, at the request of the Coroner, re-enacted the tragedy at his home before the Coroner, police officers, and a group of newsmen, who apparently were invited by the Coroner. The home was locked so that Sheppard was obliged to wait outside until the Coroner arrived. Sheppard's performance was reported in detail by the news media along with photographs. The newspapers also played up Sheppard's refusal to take a lie detector test and 'the protective ring' thrown up by his family. Front-page newspaper headlines announced on the same day that 'Doctor Balks At Lie Test Retells Story.' A column opposite that story contained an 'exclusive' interview with Sheppard headlined: "Loved My Wife, She Loved Mr,' Sheppard Tells News Reporter.' The next day, another headline story disclosed that Sheppard had 'again late yesterday refused to take a lie detector test' and quoted an Assistant County Attorney as saying that 'at the end of a nin-hour questioning of Dr. Sheppard, I felt he was now ruling (a test) out completely.' But subsequent newspaper articles reported that the Coroner was still pushing Sheppard for a lie detector test. More stories appeared when Sheppard would not allow authorities to inject him with 'truth serum.'5
On the 20th, the 'editorial artillery' opened fire with a front-page charge that somebody is 'getting away with murder.' The editorial attributed the ineptness of the investigation to 'friendships, relationships, hired lawyers, a husband who ought to have been subjected instantly to the same third-degree to which any other person under similar circumstances is subjected * * *.' The following day, July 21, another page-one editorial was headed: 'Why No Inquest? Do It Now, Dr. Gerber.' The Coroner called an inquest the same day and subpoenaed Sheppard. It was staged the next day in a school gymnasium the Coroner presided with the County Prosecutor as his advisor and two detectives as bailiffs. In the front of the room was a long table occupied by reporters, television and radio personnel, and broadcasting equipment. The hearing was broadcast with live microphones placed at the Coroner's seat and the witness stand. A swarm of reporters and photographers attended. Sheppard was brought into the room by police who searched him in full view of several hundred spectators. Sheppard's counsel were present during the three-day inquest but were not permitted to participate. When Sheppard's chief counsel attempted to place some documents in the record, he was forcibly ejected from the room by the Coroner, who received cheers, hugs, and kisses from ladies in the audience. Sheppard was questioned for five and one-half hours about his actions on the night of the murder, his married life, and a love affair with Susan Hayes.6 At the end of the hearing the Coroner announced that he 'could' order Sheppard held for the grand jury, but did not do so.
Throughout this period the newspapers emphasized evidence that tended to incriminate Sheppard and pointed out discrepancies in his statements to authorities. At the same time, Sheppard made many public statements to the press and wrote feature articles asserting his innocence.7 During the inquest on July 26, a headline in large type stated: 'Kerr (Captain of the Cleveland Police) Urges Sheppard's Arrest.' In the story, Detective McArthur 'disclosed that scientific tests at the Sheppard home have definitely established that the killer washed off a trail of blood from the murder bedroom to the downstairs section,' a circumstance casting doubt on Sheppard's accounts of the murder. No such evidence was produced at trial. The newspapers also delved into Sheppard's personal life. Articles stressed his extramarital love affairs as a motive for the crime. The newspapers portrayed Sheppard as a Lothario, fully explored his relationship with Susan Hayes, and named a number of other women who were allegedly involved with him. The testimony at trial never showed that Sheppard had any illicit relationships besides the one with Susan Hayes.
On July 28, an editorial entitled 'Why Don't Police Quiz Top Suspect' demanded that Sheppard be taken to police headquarters. It described him in the following language:
'Now proved under oath to be a liar, still free to go about his business, shielded by his family, protected by a smart lawyer who has made monkeys of the police and authorities, carrying a gun part of the time, left free to do whatever he pleases * * *.'
A front-page editorial on July 30 asked: 'Why Isn't Sam Sheppard in Jail?' It was later titled 'Quit Stalling—Bring Him In.' After calling Sheppard 'the most unusual murder suspect ever seen around these parts' the article said that '(e)xcept for some superficial questioning during Coroner Sam Gerber's inquest he has been scot-free of any official grilling * * *.' It asserted that he was 'surrounded by an iron curtain of protection (and) concealment.'
That night at 10 o'clock Sheppard was arrested at his father's home on a charge of murder. He was taken to the Bay Village City Hall where hundreds of people, newscasters, photographers and reporters were awaiting his arrival. He was immediately arraigned—having been denied a temporary delay to secure the presence of counsel—and bound over to the grand jury.
The publicity then grew in intensity until his indictment on August 17. Typical of the coverage during this period is a front-page interview entitled: 'DR. SAM: 'I Wish There Was Something I Could Get Off My Chest—but There Isn't." Unfavorable publicity included items such as a cartoon of the body of a sphinx with Sheppard's head and the legend below: "I Will Do Everything In My Power to Help Solve This Terrible Murder.'—Dr. Sam Sheppard.' Headlines announced, inter alia, that: 'Doctor Evidence is Ready for Jury,' 'Corrigan Tactics Stall Quizzing.' 'Sheppard 'Gay Set' Is Revealed By Houk,' 'Blood Is Found In Garage,' 'New Murder Evidence Is Found, Police Claim,' 'Dr. Sam Faces Quiz At Jail On Marilyn's Fear Of Him.' On August 18, an article appeared under the headline 'Dr. Sam Writes His Own Story.' And reproduced across the entire front page was a portion of the typed statement signed by Sheppard: 'I am not guilty of the murder of my wife, Marilyn. How could I, who have been trained to help people and devoted my life to saving life, commit such a terrible and revolting crime?' We do not detail the coverage further. There are five volumes filled with similar clippings from each of the three Cleveland newspapers covering the period from the murder until Sheppard's conviction in December 1954. The record includes no excerpts from newscasts on radio and television but since space was reserved in the courtroom for these media we assume that their coverage was equally large.
With this background the case came on for trial two weeks before the November general election at which the chief prosecutor was a candidate for common pleas judge and the trial judge, Judge Blythin, was a candidate to succeed himself. Twenty-five days before the case was set, 75 veniremen were called as prospective jurors. All three Cleveland newspapers published the names and addresses of the veniremen. As a consequence, anonymous letters and telephone calls, as well as calls from friends, regarding the impending prosecution were received by all of the prospective jurors. The selection of the jury began on October 18, 1954.
The courtroom in which the trial was held measured 26 by 48 feet. A long temporary table was set up inside the bar, in back of the single counsel table. It ran the width of the courtroom, parallel to the bar railing, with one end less than three feet from the jury box. Approximately 20 representatives of newspapers and wire services were assigned seats at this table by the court. Behind the bar railing there were four rows of benches. These seats were likewise assigned by the court for the entire trial. The first row was occupied by representatives of television and radio stations, and the second and third rows by reporters from out-of-town newspapers and magazines. One side of the last row, which accommodated 14 people, was assigned to Sheppard's family and the other to Marilyn's. The public was permitted to fill vacancies in this row on special passes only. Representatives of the news media also used all the rooms on the courtroom floor, including the room where cases were ordinarily called and assigned for trial Private telephone lines and telegraphic equipment were installed in these rooms so that reports from the trial could be speeded to the papers. Station WSRS was permitted to set up broadcasting facilities on the third floor of the courthouse next door to the jury room, where the jury rested during recesses in the trial and deliberated. Newscasts were made from this room throughout the trial, and while the jury reached its vardict.
On the sidewalk and steps in front of the courthouse, television and newsreel cameras were occasionally used to take motion pictures of the participants in the trial, including the jury and the judge. Indeed, one television broadcast carried a staged interview of the judge as he entered the courthouse. In the corridors outside the courtroom there was a host of photographers and television personnel with flash cameras, portable lights and motion picture cameras. This group photographed the prospective jurors during selection of the jury. After the trial opened, the witnesses, counsel, and jurors were photographed and televised whenever they entered or left the courtroom. Sheppard was brought to the courtroom about 10 minutes before each session began he was surrounded by reporters and extensively photographed for the newspapers and television. A rule of court prohibited picture-taking in the courtroom during the actual sessions of the court, but no restraints were put on photographers during recesses, which were taken once each morning and afternoon, with a longer period for lunch.
All of these arrangements with the news media and their massive coverage of the trial continued during the entire nine weeks of the trial. The courtroom remained crowded to capacity with representatives of news media. Their movement in and out of the courtroom often caused so much confusion that, despite the loud-speaker system installed in the courtroom, it was difficult for the witnesses and counsel to be heard. Furthermore, the reporters clustered within the bar of the small courtroom made confidential talk among Sheppard and his counsel almost impossible during the proceedings. They frequently had to leave the courtroom to obtain privacy. And many times when counsel wished to raise a point with the judge out of the hearing of the jury it was necessary to move to the judge's chambers. Even then, news media representatives so packed the judge's anteroom that counsel could hardly return from the chambers to the courtroom. The reporters vied with each other to find out what counsel and the judge had discussed, and often these matters later appeared in newspapers accessible to the jury.
The daily record of the proceedings was made available to the newspapers and the testimony of each witness was printed verbatim in the local editions, along with objections of counsel, and rulings by the judge. Pictures of Sheppard, the judge, counsel, pertinent witnesses, and the jury often accompanied the daily newspaper and television accounts. At times the newspapers published photographs of exhibits introduced at the trial, and the rooms of Sheppard's house were featured along with relevant testimony.
The jurors themselves were constantly exposed to the news media. Every juror, except one, testified at voir dire to reading about the case in the Cleveland papers or to having heard broadcasts about it. Seven of the 12 jurors who rendered the verdict had one or more Cleveland papers delivered in their home the remaining jurors were not interrogated on the point. Nor were there questions as to radios or television sets in the jurors' homes, but we must assume that most of them owned such conveniences. As the selection of the jury progressed, individual pictures of prospective members appeared daily. During the trial, pictures of the jury appeared over 40 times in the Cleveland papers alone. The court permitted photographers to take pictures of the jury in the box, and individual pictures of the members in the jury room. One newspaper ran pictures of the jurors at the Sheppard home when they went there to view the scene of the murder. Another paper featured the home life of an alternate juror. The day before the verdict was rendered—while the jurors were at lunch and sequestered by two bailiffs—the jury was separated into two groups to pose for photographs which appeared in the newspapers.
We now reach the conduct of the trial. While the intense publicity continued unabated, it is sufficient to relate only the more flagrant episodes:
1. On October 9, 1954, nine days before the case went to trial, an editorial in one of the newspapers criticized defense counsel's random poll of people on the streets as to their opinion of Sheppard's guilt or innocence in an effort to use the resulting statistics to show the necessity for change of venue. The article said the survey 'smacks of mass jury tampering,' called on defense counsel to drop it, and stated that the bar association should do something about it. It characterized the poll as 'non-judicial, non-legal, and nonsense.' The article was called to the attention of the court but no action was taken.
2. On the second day of voir dire examination a debate was staged and broadcast live over WHK radio. The participants, newspaper reporters, accused Sheppard's counsel of throwing roadblocks in the way of the prosecution and asserted that Sheppard conceded his guilt by hiring a prominent criminal lawyer. Sheppard's counsel objected to this broadcast and requested a continuance, but the judge denied the motion. When counsel asked the court to give some protection from such events, the judge replied that 'WHK doesn't have much coverage,' and that '(a)fter all, we are not trying this case by radio or in newspapers or any other means. We confine ourselves seriously to it in this courtroom and do the very best we can.'
3. While the jury was being selected, a two-inch headline asked: 'But Who Will Speak for Marilyn?' The frontpage story spoke of the 'perfect face' of the accused. 'Study that face as long as you want. Never will you get from it a hint of what might be the answer * * *.' The two brothers of the accused were described as 'Prosperous, poised. His two sisters-in law. Smart, chic, well-groomed. His elderly father. Courtly, reserved. A perfect type for the patriarch of a staunch clan.' The author then noted Marilyn Sheppard was 'still off stage,' and that she was an only child whose mother died when she was very young and whose father had no interest in the case. But the author—through quotes from Detective Chief James McArthur—assured readers that the prosecution's exhibits would speak for Marilyn. 'Her story,' McArthur stated, 'will come into this courtroom through our witnesses.' The article ends:
'Then you realize how what and who is missing from the perfect setting will be supplied.
'How in the Big Case justice will be done.
4. As has been mentioned, the jury viewed the scene of the murder on the first day of the trial. Hundreds of reporters, cameramen and onlookers were there, and one representative of the news media was permitted to accompany the jury while it inspected the Sheppard home. The time of the jury's visit was revealed so far in advance that one of the newspapers was able to rent a helicopter and fly over the house taking pictures of the jurors on their tour.
5. On November 19, a Cleveland police officer gave testimony that tended to contradict details in the written statement Sheppard made to the Cleveland police. Two days later, in a broadcast heard over Station WHK in Cleveland, Robert Considine likened Sheppard to a perjurer and compared the episode to Alger Hiss' confrontation with Whittaker Chambers. Though defense counsel asked the judge to question the jury to ascertain how many heard the broadcast, the court refused to do so. The judge also overruled the motion for continuance based on the same ground, saying:
'Well, I don't know, we can't stop people, in any event, listening to it. It is a matter of free speech, and the court can't control everybody. * * * We are not going to harass the jury every morning. * * * It is getting to the point where if we do it every morning, we are suspecting the jury. I have confidence in this jury * * *.' 6. On November 24, a story appeared under an eight-column headline: 'Sam Called A 'Jekyll-Hyde' By Marilyn, Cousin To Testify.' It related that Marilyn had recently told friends that Sheppard was a 'Dr. Jekyll and Mr. Hyde' character. No such testimony was ever produced at the trial. The story went on to announce: 'The prosecution has a 'bombshell witness' on tap who will testify to Dr. Sam's display of fiery temper—countering the defense claim that the defendant is a gently physician with an even disposition.' Defense counsel made motions for change of venue, continuance and mistrial, but they were denied. No action was taken by the court.
7. When the trial was in its seventh week, Walter Winchell broadcast over WXEL television and WJW radio that Carole Beasley, who was under arrest in New York City for robbery, had stated that, as Sheppard's mistress, she had borne him a child. The defense asked that the jury be queried on the broadcast. Two jurors admitted in open court that they had heard it. The judge asked each: 'Would that have any effect upon your judgment?' Both replied, 'No.' This was accepted by the judge as sufficient he merely asked the jury to 'pay no attention whatever to that type of scavenging. * * * Let's confine ourselves to this courtroom, if you please.' In answer to the motion for mistrial, the judge said:
'Well, even, so, Mr. Corrigan, how are you ever going to prevent those things, in any event? I don't justify them at all. I think it is outrageous, but in a sense, it is outrageous even if there were no trial here. The trial has nothing to do with it in the Court's mind, as far as its outrage is concerned, but— 'Mr. CORRIGAN: I don't know what effect it had on the mind of any of these jurors, and I can't find out unless inquiry is made.
'The COURT: How would you ever, in any jury, avoid that kind of a thing?'
8. On December 9, while Sheppard was on the witness stand he testified that he had been mistreated by Cleveland detectives after his arrest. Although he was not at the trial, Captain Kerr of the Homicide Bureau issued a press statement denying Sheppard's allegations which appeared under the headline: "Bare-faced Liar,' Kerr Says of Sam.' Captain Kerr never appeared as a witness at the trial.
9. After the case was submitted to the jury, it was sequestered for its deliberations, which took five days and four nights. After the verdict, defense counsel ascertained that the jurors had been allowed to make telephone calls to their homes every day while they were sequestered at the hotel. Although the telephones had been removed from the jurors' rooms, the jurors were permitted to use the phones in the bailiffs' rooms. The calls were placed by the jurors themselves no record was kept of the jurors who made calls, the telephone numbers or the parties called. The bailiffs sat in the room where they could hear only the jurors' end of the conversation. The court had not instructed the bailiffs to prevent such calls. By a subsequent motion, defense counsel urged that this ground alone warranted a new trial, but the motion was overruled and no evidence was taken on the question.
The principle that justice cannot survive behind walls of silence has long been reflected in the 'Anglo-American distrust for secret trials.' In re Oliver, 333 U.S. 257, 268, 68 S.Ct. 499, 92 L.Ed. 682 (1948). A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. This Court has, therefore, been unwilling to place any direct limitations on the freedom traditionally exercised by the news media for '(w)hat transpires in the court room is public property.' Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947). The 'unqualified prohibitions laid down by the framers were intended to give to liberty of the press * * * the broadest scope that could be countenanced in an orderly society.' Bridges v. State of California, 314 U.S. 252, 265, 62 S.Ct. 190, 195, 86 L.Ed. 192 (1941). And where there was 'no threat or menace to the integrity of the trial,' Craig v. Harney, supra, 331 U.S. at 377, 67 S.Ct. at 1255, we have consistently required that the press have a free hand, even though we sometimes deplored its sensationalism.
But the Court has also pointed out that '(l)egal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.' Bridges v. State of California, supra, 314 U.S. at 271, 62 S.Ct. at 197. And the Court has insisted that no one be punished for a crime without 'a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.' Chambers v. State of Florida, 309 U.S. 227, 236—237, 60 S.Ct. 472, 477, 84 L.Ed. 716 (1940). '.freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.' Pennekamp v. State of Florida, 328 U.S. 331, 347, 66 S.Ct. 1029, 1037, 90 L.Ed. 1295 (1946). But it must not be allowed to divert the trial from the 'very purpose of a court system * * * to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.' Cox v. State of Louisiana, 379 U.S. 559, 583, 85 S.Ct. 466, 471, 13 L.Ed.2d 487 (1965) (Black, J., dissenting). Among these 'legal procedures' is the requirement that the jury's verdict be based on evidence received in open court, not from outside sources. Thus, in Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), we set aside a federal conviction where the jurors were exposed 'through news accounts' to information that was not admitted at trial. We held that the prejudice from such material 'may indeed be greater' than when it is part of the prosecution's evidence 'for it is then not tempered by protective procedures.' At 313, 79 S.Ct. at 1173. At the same time, we did not consider dispositive the statement of each juror 'that he would not be influenced by the news articles, that he could decide the case only on the evidence of record, and that he felt no prejudice against petitioner as a result of the articles.' At 312, 79 S.Ct. at 1173. Likewise, in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), even though each juror indicated that he could render an impartial verdict despite exposure to prejudicial newspaper articles, we set aside the conviction holding:
'With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion * * *.' At 728, 81 S.Ct., at 1645.
The undeviating rule of this Court was expressed by Mr. Justice Holmes over half a century ago in Patterson v. State of Colorado ex rel. Attorney General, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907):
'The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.'
Moreover, 'the burden of showing essential unfairness * * * as a demonstrable reality,' Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942), need not be undertaken when television has exposed the community 'repeatedly and in depth to the spectacle of (the accused) personally confessing in detail to the crimes with which he was later to be charged.' Rideau v. State of Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963). In Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), two key witnesses were deputy sheriffs who doubled as jury shepherds during the trial. The deputies swore that they had not talked to the jurors about the case, but the Court nonetheless held that,
'even if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association * * *.' At 473, 85 S.Ct., at 550.
Only last Term in Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), we set aside a conviction despite the absence of any showing of prejudice. We said there:
'It is true that in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused. Nevertheless, at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process.' At 542—543, 85 S.Ct. at 1632.
And we cited with approval the language of Mr. Justice Black for the Court in In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955), that 'our system of law has always endeavored to prevent even the probability of unfairness.'
It is clear that the totality of circumstances in this case also warrants such an approach. Unlike Estes, Sheppard was not granted a change of venue to a locale away from where the publicity originated nor was his jury sequestered. The Estes jury saw none of the television broadcasts from the courtroom. On the contrary, the Sheppard jurors were subjected to newspaper, radio and television coverage of the trial while not taking part in the proceedings. They were allowed to go their separate ways outside of the courtroom, without adequate directions not to read or listen to anything concerning the case. The judge's 'admonitions' at the beginning of the trial are representative:
'I would suggest to you and caution you that you do not read any newspapers during the progress of this trial, that you do not listen to radio comments nor watch or listen to television comments, insofar as this case is concerned. You will feel very much better as the trial proceeds * * *. I am sure that we shall all feel very much better if we do not indulge in any newspaper reading or listening to any comments whatever about the matter while the case is in progress. After it is all over, you can read it all to your heart's content * * *.'
At intervals during the trial, the judge simply repeated his 'suggestions' and 'requests' that the jurors not expose themselves to comment upon the case. Moreover, the jurors were thrust into the role of celebrities by the judge's failure to insulate them from reporters and photographers. See Estes v. State of Texas, supra, 381 U.S., at 545—546, 85 S.Ct., at 1634. The numerous pictures of the jurors, with their addresses, which appeared in the newspapers before and during the trial itself exposed them to expressions of opinion from both cranks and friends. The fact that anonymous letters had been received by prospective jurors should have made the judge aware that this publicity seriously threatened the jurors' privacy.
The press coverage of the Estes trial was not nearly as massive and pervasive as the attention given by the Cleveland newspapers and broadcasting stations to Sheppard's prosecution.8 Sheppard stood indicted for the murder of his wife the State was demanding the death penalty. For months the virulent publicity about Sheppard and the murder had made the case notorious. Charges and countercharges were aired in the news media besides those for which Sheppard was called to trial. In addition, only three months before trial, Sheppard was examined for more than five hours without counsel during a three-day inquest which ended in a public brawl. The inquest was televised live from a high school gymnasium seating hundreds of people. Furthermore, the trial began two weeks before a hotly contested election at which both Chief Prosecutor Mahon and Judge Blythin were candidates for judgeships.9
While we cannot say that Sheppard was denied due process by the judge's refusal to take precautions against the influence of pretrial publicity alone, the court's later rulings must be considered against the setting in which the trial was held. In light of this background, we believe that the arrangements made by the judge with the news media caused Sheppard to be deprived of that 'judicial serenity and calm to which (he) was entitled.' Estes v. State of Texas, supra, 381 U.S., at 536, 85 S.Ct., at 1629. The fact is that bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard. At a temporary table within a few feet of the jury box and counsel table sat some 20 reporters staring at Sheppard and taking notes. The erection of a press table for reporters inside the bar is unprecedented. The bar of the court is reserved for counsel, providing them a safe place in which to keep papers and exhibits, and to confer privately with client and co-counsel. It is designed to protect the witness and the jury from any distractions, intrusions or influences, and to permit bench discussions of the judge's rulings away from the hearing of the public and the jury. Having assigned almost all of the available seats in the courtroom to the news media the judge lost his ability to supervise that environment. The movement of the reporters in and out of the courtroom caused frequent confusion and disruption of the trial. And the record reveals constant commotion within the bar. Moreover, the judge gave the throng of newsmen gathered in the corridors of the courthouse absolute free rein. Participants in the trial, including the jury, were forced to run a gantlet of reporters and photographers each time they entered or left the courtroom. The total lack of consideration for the privacy of the jury was demonstrated by the assignment to a broadcasting station of space next to the jury room on the floor above the courtroom, as well as the fact that jurors were allowed to make telephone calls during their five-day deliberation.
There can be no question about the nature of the publicity which surrounded Sheppard's trial. We agree, as did the Court of Appeals, with the findings in Judge Bell's opinion for the Ohio Supreme Court:
'Murder and mystery, society, sex and suspense were combined in this case in such a manner as to intrigue and captivate the public fancy to a degree perhaps unparalleled in recent annals. Throughout the preindictment investigation, the subsequent legal skirmishes and the nine-week trial, circulation-conscious editors catered to the insatiable interest of the American public in the bizarre. * * * In this atmosphere of a 'Roman holiday' for the news media, Sam Sheppard stood trial for his life.' 165 Ohio St., at 294, 135 N.E.2d, at 342.
Indeed, every court that has considered this case, save the court that tried it, has deplored the manner in which the news media inflamed and prejudiced the public.10
Much of the material printed or broadcast during the trial was never heard from the witness stand, such as the charges that Sheppard had purposely impeded the murder investigation and must be guilty since he had hired a prominent criminal lawyer that Sheppard was a perjurer that he had sexual relations with numerous women that his slain wife had characterized him as a 'Jekyll-Hyde' that he was 'a bare-faced liar' because of his testimony as to police treatment and finally, that a woman convict claimed Sheppard to be the father of her illegitimate child. As the trial progressed, the newspapers summarized and interpreted the evidence, devoting particular attention to the material that incriminated Sheppard, and often drew unwarranted inferences from testimony. At one point, a front-page picture of Mrs. Sheppard's blood-stained pillow was published after being 'doctored' to show more clearly an alleged imprint of a surgical instrument.
Nor is there doubt that this deluge of publicity reached at least some of the jury. On the only occasion that the jury was queried, two jurors admitted in open court to hearing the highly inflammatory charge that a prison inmate claimed Sheppard as the father of her illegitimate child. Despite the extent and nature of the publicity to which the jury was exposed during trial, the judge refused defense counsel's other requests that the jurors be asked whether they had read or heard specific prejudicial comment about the case, including the incidents we have previously summarized. In these circumstances, we can assume that some of this material reached members of the jury. See Commonwealth v. Crehan, 345 Mass. 609, 188 N.E.2d 923 (1963).
The court's fundamental error is compounded by the holding that it lacked power to control the publicity about the trial. From the very inception of the proceedings the judge announced that neither he nor anyone else could restrict prejudicial news accounts. And he reiterated this view on numerous occasions. Since he viewed the news media as his target, the judge never considered other means that are often utilized to reduce the appearance of prejudicial material and to protect the jury from outside influence. We conclude that these procedures would have been sufficient to guarantee Sheppard a fair trial and so do not consider what sanctions might be available against a recalcitrant press nor the charges of bias now made against the state trial judge.11
The carnival atmosphere at trial could easily have been avoided since the courtroom and courthouse premises are subject to the control of the court. As we stressed in Estes, the presence of the press at judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced or disadvantaged.12 Bearing in mind the massive pretrial publicity, the judge should have adopted stricter rules governing the use of the courtroom by newsmen, as Sheppard's counsel requested. The number of reporters in the courtroom itself could have been limited at the first sign that their presence would disrupt the trial. They certainly should not have been placed inside the bar. Furthermore, the judge should have more closely regulated the conduct of newsmen in the courtroom. For instance, the judge belatedly asked them not to handle and photograph trial exhibits lying on the counsel table during recesses.
Secondly, the court should have insulated the witnesses. All of the newspapers and radio stations apparently interviewed prospective witnesses at will, and in many instances disclosed their testimony. A typical example was the publication of numerous statements by Susan Hayes, before her appearance in court, regarding her love affair with Sheppard. Although the witnesses were barred from the courtroom during the trial the full verbatim testimony was available to them in the press. This completely nullified the judge's imposition of the rule. See Estes v. State of Texas, supra, 381 U.S., at 547, 85 S.Ct., at 1635.
Thirdly, the court should have made some effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides. Much of the information thus disclosed was inaccurate, leading to groundless rumors and confusion.13 That the judge was aware of his responsibility in this respect may be seen from his warning to Steve Sheppard, the accused's brother, who had apparently made public statements in an attempt to discredit testimony for the prosecution. The judge made this statement in the presence of the jury:
'Now, the Court wants to say a word. That he was told—he has not read anything about it at all—but he was informed that Dr. Steve Sheppard, who has been granted the privilege of remaining in the court room during the trial, has been trying the case in the newspapers and making rather uncomplimentary comments about the testimony of the witnesses for the State.
'Let it be now understood that if Dr. Steve Sheppard wishes to use the newspapers to try his case while we are trying it here, he will be barred from remaining in the court room during the progress of the trial if he is to be a witness in the case.
'The Court appreciates he cannot deny Steve Sheppard the right of free speech, but he can deny him the * * * privilege of being in the courtroom, if he wants to avail himself of that method during the progress of the trial.'
Defense counsel immediately brought to the court's attention the tremendous amount of publicity in the Cleveland press that 'misrepresented entirely the testimony' in the case. Under such circumstances, the judge should have at least warned the newspapers to check the accuracy of their accounts. And it is obvious that the judge should have further sought to alleviate this problem by imposing control over the statements made to the news media by counsel, witnesses, and especially the Coroner and police officers. The prosecution repeatedly made evidence available to the news media which was never offered in the trial. Much of the 'evidence' disseminated in this fashion was clearly inadmissible. The exclusion of such evidence in court is rendered meaningless when news media make it available to the public. For example, the publicity about Sheppard's refusal to take a lie detector test came directly from police officers and the Coroner.14 The story that Sheppard had been called a 'Jekyll-Hyde' personality by his wife was attributed to a prosecution witness. No such testimony was given. The further report that there was 'a 'bombshell witness' on tap' who would testify as to Sheppard's 'fiery temper' could only have emanated from the prosecution. Moreover, the newspapers described in detail clues that had been found by the police, but not put into the record.15
The fact that many of the prejudicial news items can be traced to the prosecution, as well as the defense, aggravates the judge's failure to take any action. See Stroble v. State of California, 343 U.S. 181, 201, 72 S.Ct. 599, 609, 96 L.Ed. 872 (1952) (Frankfurter, J., dissenting). Effective control of these sources—concededly within the court's power—might well have prevented the divulgence of inaccurate information, rumors, and accusations that made up much of the inflammatory publicity, at least after Sheppard's indictment.
More specifically, the trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters, such as the refusal of Sheppard to submit to interrogation or take any lie detector tests any statement made by Sheppard to officials the identity of prospective witnesses or their probable testimony any belief in guilt or innocence or like statements concerning the merits of the case. See State v. Van Duyne, 43 N.J., 369, 389, 204 A.2d 841, 852 (1964), in which the court interpreted Canon 20 of the American Bar Association's Canons of Professional Ethics to prohibit such statements. Being advised of the great public interest in the case, the mass coverage of the press, and the potential prejudicial impact of publicity, the court could also have requested the appropriate city and county officials to promulgate a regulation with respect to dissemination of information about the case by their employees.16 In addition, reporters who wrote or broadcast prejudicial stories, could have been warned as to the impropriety of publishing material not introduced in the proceedings. The judge was put on notice of such events by defense counsel's complaint about the WHK broadcast on the second day of trial. See p. 346, supra. In this manner, Sheppard's right to a trial free from outside interference would have been given added protection without corresponding curtailment of the news media. Had the judge, the other officers of the court, and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom—not pieced together from extrajudicial statements.
From the cases coming here we note that unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.
Since the state trial judge did not fulfill his duty to protect Sheppard from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom, we must reverse the denial of the habeas petition. The case is remanded to the District Court with instructions to issue the writ and order that Sheppard be released from custody unless the State puts him to its charges again within a reasonable time.
Mr. Justice BLACK dissents.
Sheppard was convicted in 1954 in the Court of Common Pleas of Cuyahoga County, Ohio. His conviction was affirmed by the Court of Appeals for Cuyahoga County, State v. Sheppard, 100 Ohio App. 345, 128 N.E.2d 471 (1955), and the Ohio Supreme Court, 165 Ohio St. 293, 135 N.E.2d 340 (1956). We denied certiorari on the original application for review. 352 U.S. 910, 77 S.Ct. 118, 1 L.Ed.2d 119 (1956).
The several witnesses to whom Sheppard narrated his experiences differ in their description of various details. Sheppard claimed the vagueness of his perception was caused by his sudden awakening, the dimness of the light, and his loss of consciousness.
Sheppard was suffering from severe pain in his neck, a swollen eye, and shock.
But newspaper photographers and reporters were permitted access to Sheppard's home from time to time and took pictures throughout the premises.
At the same time, the newspapers reported that other possible suspects had been 'cleared' by lie detector tests. One of these persons was quoted as saying that he could not understand why an innocent man would refuse to take such a test.
The newspapers had heavily emphasized Sheppard's illicit affair with Susan Hayes, and the fact that he had initially lied about it.
A number of articles calculated to evoke sympathy for Sheppard were printed, such as the letters Sheppard wrote to his son while in jail. These stories often appeared together with news coverage which was unfavorable to him.
Many more reporters and photographers attended the Sheppard trial. And it attracted several nationally famous commentators as well.
At the commencement of trial, defense counsel made motions for continuance and change of venue. The judge postponed ruling on these motions until he determined whether an impartial jury could be impaneled. Voir dire examination showed that with one exception all members selected for jury service had read something about the case in the newspapers. Since, however, all of the jurors stated that they would not be influenced by what they had read or seen, the judge overruled both of the motions. Without regard to whether the judge's actions in this respect reach dimensions that would justify issuance of the habeas writ, it should be noted that a short continuance would have alleviated any problem with regard to the judicial elections. The court in Delaney v. United States, 199 F.2d 107, 115 (C.A.1st. Cir. 1952), recognized such a duty under similar circumstances, holding that 'if assurance of a fair trial would necessitate that the trial of the case be postponed until after the election, then we think the law required no less than that.'
Typical comments on the trial by the press itself include:
'The question of Dr. Sheppard's guilt or innocence still is before the courts. Those who have examined the trial record carefully are divided as to the propriety of the verdict. But almost everyone who watched the performance of the Cleveland press agrees that a fair hearing for the defendant, in that area, would be a modern miracle.' Harrison, 'The press vs. the Courts,' The Saturday Review (Oct. 15, 1955).
'At this distance, some 100 miles from Cleveland, it looks to us as though the Sheppard murder case was sensationalized to the point at which the press must ask itself if its freedom, carried to excess, doesn't interfere with the conduct of fair trials.' Editorial, The Toledo Blade (Dec. 22, 1954).
In an unsworn statement, which the parties agreed would have the status of a deposition, made 10 years after Sheppard's conviction and six years after Judge Blythin's death, Dorothy Kilgallen asserted that Judge Blythin had told her: 'It's an open and shut case * * * he is guilty as hell.' It is thus urged that Sheppard be released on the ground that the judge's bias infected the entire trial. But we need not reach this argument, since the judge's failure to insulate the proceedings from prejudicial publicity and disruptive influences deprived Sheppard of the chance to receive a fair hearing.
The judge's awareness of his power in this respect is manifest from his assignment of seats to the press.
The problem here was further complicated by the independent action of the newspapers in reporting 'evidence' and gossip which they uncovered. The press not only inferred that Sheppard was guilty because he 'stalled' the investigation, hid behind his family, and hired a prominent criminal lawyer, but denounced as 'mass jury tampering' his efforts to gather evidence of community prejudice caused by such publications. Sheppard's counterattacks added some fuel but, in these circumstances, cannot preclude him from asserting his right to a fair trial. Putting to one side news stories attributed to police officials, prospective witnesses, the Sheppards, and the lawyers, it is possible that the other publicity 'would itself have had a prejudicial effect.' Cf. Report of the President's Commission on the Assassination of President Kennedy, at 239.
When two police officers testified at trial that Sheppard refused to take a lie detector test, the judge declined to give a requested instruction that the results of such a test would be inadmissible in any event. He simply told the jury that no person has an obligation 'to take any lie detector test.'
Such 'premature disclosure and weighing of the evidence' may seriously jeopardize a defendant's right to an impartial jury. '(N)either the press nor the public had a right to be contemporaneously informed by the police or prosecuting authorities of the details of the evidence being accumulated against (Sheppard).' Cf. Report of the President's Commission, supra, at 239, 240.