4/16/2000

Verdict shocks lawyer

10-year effort to prove Sheppard's innocence ends with quick decision in Cuyahoga County's favor

BY KEITH MCKNIGHT Beacon Journal staff writer

CLEVELAND: More than anything else that happened on Wednesday, it was the expression on the face of Terry Gilbert that captured the moment.

It was almost a mask of horror -- an expression that seemed to frighten those who saw it, particularly his wife, Robin. She thought he was having a heart attack.

But the jurors didn't notice -- their eyes were looking elsewhere, looking down, looking away, looking anywhere but there.

They were ready to go home.

The 10-year effort to prove Dr. Sam Sheppard didn't kill his pregnant wife, Marilyn, in the pre-dawn darkness of July 4, 1954, was over.

And in the end, the 10-week trial that produced a parade of the nation's top forensic scientists -- who explained in their own special kind of expertise why the real killer had to be somebody else -- didn't make a bit of difference.

At least not to this jury.

Sam Reese Sheppard, a veteran of hollow times, threw a comforting arm around the shoulder of his grieving attorney as the aftermath of the verdict for the state droned on.

It's usually the other way around.

The lawyer usually comforts the client.

But Abe Bonowitz, one of a group of friends and relatives who sat through most of the trial to do what they could to help, found Sheppard's reaction easy to explain:

"He told us all to hope for the best and prepare for the worst," Bonowitz said, "but he's the only one who did."

Gilbert was sure he had won. Science was on his side. That was clear from the outset.

Why else would he have tried to prove wrongful imprisonment in a 45-year-old murder case when the burden of proof was on his shoulders?

And why else would the state's most articulate defender in the case -- Assistant County Prosecutor Steve Dever -- build his argument from Day 1 by warning jurors to trust their common sense and ignore all the scientific "mumbo jumbo?"

In the end, after eight weeks of tedious testimony, Dever's route provided a perfect out for the jury of four men and four women confronted with a forbidding stack of evidence piled in the jury room.

And they took it.

Scarcely six hours after they were given the case, told to elect a foreperson, told to have lunch and come back to start deliberations, they voted, notified the clerk, filed in to hear their verdict read and were out the door.

Common Pleas Judge Ronald Suster struggled throughout the trial to carefully distinguish the probative from the prejudicial before the stack of evidence was finally delivered to the jury that afternoon.

He had no way of knowing that it wouldn't matter. Otherwise, the trial might have been shorter.

"It was like a joke," Gilbert said. "It was like invalidating what so many people worked for and believed in."

Cuyahoga County Prosecutor William Mason, though, was quick to proclaim that the state, at long last, was finally rid of the Sheppard case.

"There have been questions left out in the community for years," he said. "I think that the evidence we put in that courtroom... answered all those questions of the past. And I think we have finally put this to rest, once and for all."

Not so for Claudia Lenarz, though, who brought her knitting and invested 2 1/2 months of her retirement attending virtually every session of the trial.

The Strongsville woman and a friend from Rocky River said they wanted to determine for themselves whether Sheppard was the killer.

"I don't think either one of us thought we would be there for the whole trial," she said. "But it was compelling. It was a compelling story. "

She had gone to her son's track meet, never dreaming the verdict would be returned so soon.

"I'm just very upset," she said. "How could these people decide this? I mean, what didn't they believe?"

A need to win

Gilbert himself may have underestimated the strength of feelings in the Sheppard case, and Cleveland's need to win it.

He said he ignored suggestions that trying the case outside Cuyahoga County might be a better idea.

"Sam and I just decided that we were going to take a shot here at Cleveland and not raise the question of venue.... We thought if Dr. Sheppard is going to be vindicated, he has to be vindicated by this community."

But it didn't work.

Dr. Sheppard has been dead for 30 years, yet Gilbert would discover that sentiment against him is still very much alive.

Since the day of the murder nearly 46 years ago, the slaying of Marilyn Sheppard has been handled like an algebraic equation in which the known is the killer (Sheppard) and the only unknown is how he did it.

No physical evidence was ever found to link him to the crime.

But he was always the only suspect, essentially, because he was there and couldn't convince authorities that he, too, was a victim.

Sheppard always claimed that he was knocked out after being aroused from a sound sleep by his wife's cries in the middle of the night.

When he regained consciousness and pursued a bushy-haired intruder, he said he again lost consciousness and wakened in the waves of Lake Erie on the shore of their property.

Dr. John P. Wilson, head of Cleveland's Forensic Center for Traumatic Stress, testified that Sheppard was suffering not only from hypothermia, but from acute stress trauma because of all he had been through in the ordeal.

Yet Sheppard's inability to recall details of that night -- fed by what Wilson said was his own disbelief of what he had been through -- was used to undermine his credibility.

Simple case

In its most fundamental form, Gilbert's case was a simple one: DNA analysis of bloodstains taken from the murder scene shows the presence of a third person.

That fact alone should have upset the state's claim that Sheppard was the lone killer -- the only person who could have done it.

The Bay Village osteopath had no open bleeding wounds following the murder.

Furthermore, neither his DNA nor his wife's matched the DNA that was found there, although it was in the bedroom, on Dr. Sheppard's pants and elsewhere in the house.

On the other hand, the DNA of Richard Eberling -- the Sheppards' handyman who later claimed to have bled in the house due to an accident shortly before the murder -- could not be excluded.

Ironically, that determination was made by Dr. Mohammed Tahir, one of the country's leading DNA experts who in the process of the Sheppard investigation was persuaded to help set up a DNA lab for the Cuyahoga County coroner.

Indeed it was Eberling's peculiar history, his connection with the Sheppards and his conviction in the murder of a wealthy Lakewood widow that prompted the reinvestigation of the murder -- over the objections of Cuyahoga County.

In the process of it all, Sam Reese Sheppard became convinced that Eberling not only was his mother's killer, but was likely a serial killer who had slain other women.

Yet the introduction of that information was blocked at virtually every turn by the state -- even though Gilbert had expert witnesses prepared to back it up with testimony.

And so the involvement of Eberling -- at least for the jurors -- was kept to a minimum while the character of Dr. Sheppard was again fair game, much as it had been in 1954.

And DNA, at least in this trial, became suspect.

Dr. Ranajit Chakraborty, said to be the world's foremost population geneticist, built on what Tahir had found. He said that the most logical conclusion to draw from Tahir's discoveries was that Eberling's blood was at the murder scene.

And by the time it was the state's turn to challenge Tahir's findings by calling its own DNA expert -- Dr. Mitchell Holland, chief of DNA for the Armed Forces Institute of Pathology in Rockville, Md. -- the state had thought better of it.

Hence they had no DNA expert at all.

Instead, they called Toby Wolson, a Miami forensic biology consultant, who testified that from what he could see, Tahir's DNA results appeared to be so contaminated that they were essentially worthless.

But what Wolson was allowed to see was limited by what the prosecutor's office gave him.

On cross-examination, he said he asked for documentation of Tahir's tests but never received it, and that is the reason he concluded the results were unreliable.

Outside the hearing of the jury, Mason let it be known that he had been "stonewalled" trying to get the test results from Gilbert.

Gilbert responded by producing a letter and deposition showing the documentation had been in Mason's camp for months.

So, the prosecutor's office backtracked a little, blaming the mishap on a communication problem, but by then the jury had heard that the samples were contaminated.

And it became a little easier to sell the idea that science, after all, is sometimes mumbo jumbo.

In the end, evidence that was allowed to point to Richard Eberling as the man who might have been the real killer of Marilyn Sheppard was thin, at best.

Unusual decision

Thinking it over, though, Gilbert said the cause was lost last August when Suster yielded to the prosecutor's demand to have the complicated, controversial case tried by a Cuyahoga County panel of jurors.

By Gilbert's account, it was the first time in the 15-year history of the state's wrongful imprisonment statute that such a case was tried by a jury rather than a judge. "If this was some unknown guy in prison," Gilbert said, "there would never have been even a question of relying on a judge to make a decision."

Regardless of what Suster's decision might have been though, nobody who watched him agonize over rulings in the course of the 10 1/2-week trial would have expected his deliberations to have been measured in anything less than days.

It was, after all, a historic event.

The Sheppard team and their supporters and friends held a get-together Friday night to cheer each other and say their goodbyes.

Sam Reese Sheppard said he would head back to his place in California. Life for him is better there. He will resume work as a dental hygienist. But first, he said, he will inflate his bicycle tires and take a long ride.

Keith McKnight can be reached at 330-996-3734 or kmcknight@thebeaconjournal.com