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Burden of Proof

Sam Reese Sheppard vs. Ohio

Aired February 18, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

F. LEE BAILEY, FMR. ATTY. FOR DR. SAM SHEPPARD: It appeared that she was engaged in sexual contact of a consensual nature with someone at the time she was killed, due principally to the condition of her clothing. The conduct of Spencer Houk immediately after the killing raised some suspicions, and then the development of the evidence that she had slipped him a key to the house, saying, don't tell Sam.

JUDGE RONALD SUSTER, CUYAHOGA COUNTY COMMON PLEAS: The very fact that I think the state would argue that you opened the door, now, I don't -- what is your comment to that?

TERRY GILBERT, SHEPPARD FAMILY ATTORNEY: I never -- I never asked him about any statements that he had as attorney-client between himself and Dr. Sheppard. I never brought up any statements even -- even -- forget about the attorney-client privilege, just out of court, hearsay statements between Dr. Sheppard and F. Lee Bailey.

UNIDENTIFIED MALE: Didn't you spent time with him to evaluate his version of the events to determine whether or not you wanted to put him on the stand?

BAILEY: I did, for about four seconds. When I met Sam Sheppard, he stuck his hand out, and he said, I want you to know I didn't do it.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: 46 years after the murder of Marilyn Sheppard, her son is trying to clear the family name. Criminal defense lawyer F. Lee Bailey won a retrial and then an acquittal for Dr. Sam Sheppard, but Bailey's place in the Sheppard family history and justice for this heinous murder may be the unwritten chapters in this American tragedy.

Plus:

(AUDIO CLIP, FEBRUARY 28, 1966)

BAILEY: At some time during the evening, while on television, a movie was being observed called "Strange Holiday." Dr. Sheppard fell asleep on the couch. The Aherns (ph) left some time around midnight and bade Marilyn Sheppard good night at the door, and she was never seen alive again. (END AUDIO CLIP)

VAN SUSTEREN: A BURDEN OF PROOF legal flashback to 1966: F. Lee Bailey's argument before the United States Supreme Court on behalf of his then-client, Dr. Sam Sheppard.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

Hello, and welcome to BURDEN OF PROOF.

Sam Reese Sheppard was seven years old when his mother was bludgeoned to death and his father was arrested. That was July 4th, 1954, and since then the Sheppard family's courtroom battles have been some of the most publicized cases in legal history.

ROGER COSSACK, CO-HOST: In his first trial, Sheppard was convicted of killing his wife, but the conviction was overturned by the U.S. Supreme Court, partly because of the media circus surrounding the trial. Dr. Sam Sheppard spent 10 years in prison. In a second trial in 1966, Sheppard, represented by defense attorney F. Lee Bailey, was found not guilty.

VAN SUSTEREN: Now the son of Marilyn and Sam Sheppard wants justice from the state of Ohio. Sam Reese Sheppard is in court, attempting to prove his father's innocence. In a Cleveland courtroom this week, film from 1954 was presented as evidence, including footage of the defendant at a coroner's inquest held in a public -- held at public at a high school gymnasium in which Sheppard was forced to answer questions for three days without an attorney present.

COSSACK: Other evidence introduced this week included footage from Dr. Sam Sheppard's original trial, including images of a smiling judge, a swarming press shooting pictures of the defendant and the jurors which would decide his fate. At the time of the trial, even the jurors' names and personal information were released to the press. But the most dramatic courtroom testimony this week came from the man who won a Supreme Court ruling for Dr. Sam Sheppard, his one-time attorney, F. Lee Bailey.

(BEGIN VIDEO CLIP)

STEVE DEVER, ASSISTANT PROSECUTOR, CUYAHOGA COUNTY, OHIO: Going to the question concerning whether or not Marilyn Sheppard was involved in an adulterous affair with Spencer Houk, did you acquire that information from Dr. Sam Sheppard?

BAILEY: Sam had expressed the suspicion that she was involved probably with more than one man before I got into the case, but it was excluded from the first trial as a matter of strategy.

(END VIDEO CLIP)

VAN SUSTEREN: Joining us today from Miami, F. Lee Bailey. And in Cleveland, we're joined by WCPN radio reporter Yolanda Perdomo. COSSACK: And here in Washington, Barbara Zimmerman (ph), civil litigator Brady Toensing and Jennifer Peter (ph). And in the back, Tara Rosenbloom (ph) and Matthew Fay (ph).

Well, let's go right to you, Lee. This week you testified in the Sheppard trial, and you presented perhaps an alternative theory of who the murderer was. Tell us about it.

BAILEY: Well, I don't think it's an alternative theory; it is the original theory long before this fellow Eberling became a suspect. Steve Sheppard named J. Spencer Houk as a probable killer or involved in the killing within two months of the murder, and he did so at the police station in the presence of Houk, the chief of police and the captain of detectives in charge of the case. The cops didn't want to hear about it.

VAN SUSTEREN: Lee, who do you believe killed Marilyn Sheppard, and what's your degree of certainty?

BAILEY: I don't have enough certainty to suggest that if they were alive they'd be indicted, and that's what I said to a grand jury that inquired into the matter after Sam was acquitted. I do believe based on two new pieces of evidence that I learned about last week that there is enough to hold them accountable in a civil case, that is the mayor and his wife, who swung the weapon, in my view.

VAN SUSTEREN: Lee, does that mean that you have 100-percent certainty that Dr. Sam Sheppard did not commit this murder?

BAILEY: I do, but that's for totally-independent reasons, and I think had those reasons had been properly exploited in the first trial he would have been acquitted.

Sam had two injuries that no doctor would ever try to inflict on himself, and the state admitted if his injuries were real he was a victim and not a killer. He had a fractured cervical vertebrae with damage to the spinal cord, a good way to become a paraplegic or quadriplegic, he had broken teeth; nobody breaks his teeth to fake injuries.

COSSACK: OK, joining us now is Yolanda Perdomo.

Yolanda, you have been covering this trial. Tell us what's been going on in trial this week and recently.

YOLANDA PERDOMO, WCPN-FM: Well, it actually began with the testimony of F. Lee Bailey, and most of the people who've come in are senior citizens, because, as you know, this case is mostly -- is over 40 years old and a lot of the people who were part of the original case, the 1954 one and 1966, are either incapacitated or have passed on. So we're still waiting to hear from more than a hundred people who are planning to come through. F. Lee Bailey was the first person, another person who came through was the aunt of Sam Reese Sheppard. She had talked about the family relationship, and that was really the center of a lot of the discussions that were going on this week: How happy was the family, Who was involved in extramarital affairs, and that really dominated a lot of the testimony. It still is right now.

VAN SUSTEREN: Yolanda, Lee Bailey has cast some suspicion in one direction towards the Houk family, but Sam Reese Sheppard thinks someone else committed this murder. Who's Mr. Eberling?

PERDOMO: Richard Eberling a window washer employed by the Sheppards, and he was also employed by several other people who had lived in the neighborhood. Now, because his DNA is said to have matched some blood spots that were in the home, that is really the foundation of what the estate of Dr. Sam Sheppard is planning to go with. They think that he was the possible killer. Also, when he was found on a burglary charge before, some of the Sheppards' possessions were found on his person. So, that is someone that they think is the likely killer.

COSSACK: Lee, who is Spencer Houk and his wife, and why did Steven Sheppard at least believe that they were involved in the murders?

BAILEY: Spencer Houk was the part-time mayor of Bay Village. He was also the village butcher. He lived four doors from Sam Sheppard. They were friendly, they had owned a boat together at one point, and Spencer had been having some kind of affair with Marilyn. We had a witness. A bread delivery man on one occasion saw Spencer being handed a key to the house surreptitiously. Another occasion saw Spencer fondling Marilyn's breasts in the kitchen. So, something was going on. She obviously was about to have intercourse at time that she was killed and may have been engaged in it.

And one has to look closely when investigating a murder of this sort. Chief of police of Bay Village thought Spencer was the guy and said so. He got taken off the case. The Cleveland press and the coroner wanted Sam Sheppard and no one else, and they simply discarded or let go to ruin every clue that might have helped this case.

Eberling's blood was there, we always knew -- I put him on the witness stand -- because he cut his hand while washing their windows. He did steal Marilyn's jewelry, but he also stole the sister's jewelry because he was a burglar and later was shown he was a murderer. I still don't like him as the killer. That doesn't make any difference. The question is, did Sam do it. I think the answer is a thumping no.

VAN SUSTEREN: Lee, you say that you don't like him, Richard Eberling, who's now dead -- he died in prison -- you don't like him, quote, "as the killer," but did he not confess or make statements in prison saying that he was responsible for the death of Marilyn Sheppard?

BAILEY: Terry Gilbert plans to put on some evidence from people, I think one a nurse and perhaps another inmate, that oh, yes, Eberling confessed. Those statements to me are generally worthless. I mean, prison inmates are always willing to say anything that comes around the pike. Indeed, when the Sheppard case ended, the prosecution had a witness up in the jail ready to say that Sam had made some kind of statement to him. He never got on the witness stand. That's not persuasive. Scientific circumstantial evidence is, and Eberling's blood is not in the A spot. And that's the big drop on the wardrobe door that didn't come from Marilyn, didn't come from Sam. If we could match that to a human being, we'd have the killer.

COSSACK: Yolanda, you said that there was testimony describing the relationships. What was that testimony?

PERDOMO: Well, it had to do with -- a lot of people had talked about the fact that Sam was unfaithful. Even Marilyn Sheppard had told a friend of hers that he was considered to be the playboy of the Western world because he carried on with different women. And that was really, you know, a big part of the discussion, as well as what Mr. Bailey had said about, well, you know, maybe Marilyn -- or Sam was not the only person who was indiscreet, that Marilyn had possibly had an affair with Mr. Houk and several other people.

COSSACK: All right, Yolanda Perdomo of WCPN Radio, thank you for joining us today.

PERDOMO: Thank you.

COSSACK: Up next: Five decades after Sheppard was convicted, will DNA technology play a factor in this civil lawsuit? Plus, hear a young F. Lee Bailey argue Dr. Sam Sheppard's case for a new trial before the U.S. Supreme Court in 1966. Stay with us.

(BEGIN VIDEO CLIP, FEBRUARY 28, 1966)

BAILEY: And what Dr. Sheppard had to say is this, and still is, that at some time during the night -- and he does not know the time -- he awoke from a deep sleep by what he imagined to be screaming and thought his wife, who was then pregnant, was having convulsions. But he rushed up these stairs to the bedroom which was on the second floor; that the bedroom was dimly lit. And as he reached the top of the stairs, or as he entered the bedroom, a point about which he was uncertain, he noticed a white shape or form, apparently human form, standing near the head of the bed.

(END VIDEO CLIP)

(BEGIN LEGAL BRIEF)

Jurors in the 1954 trial of Dr. Sam Sheppard were not sequestered. Not only did they have access to news reports of the case, they themselves were photographed and written about.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log on to cnn.com/burden. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

(BEGIN VIDEO CLIP)

SUSTER: So, I'm going to take extra steps because we have a situation here, of course, where your then-client is now deceased. Just so that it's clear right here, are you saying he waived any attorney-client privilege?

BAILEY: I would say he did that repeatedly, your honor.

(END VIDEO CLIP)

COSSACK: This week in Cleveland, Ohio, former attorney for Sam Sheppard F. Lee Bailey testified in the case of Sheppard vs. Ohio. On the witness stand this week, Bailey testified that Dr. Sheppard believed his wife had a sexual relationship with then-mayor Spencer Houk and theorized that Houk's wife, Esther, killed Marilyn Sheppard in a jealous rage.

In 1966, Bailey referred to the Houks, neighbors of the Sheppards, in his argument on behalf of Dr. Sheppard before the U.S. Supreme Court.

(BEGIN VIDEO CLIP, FEBRUARY 28, 1966)

BAILEY: Sometime around 6:00 in the morning, a man living two doors distant from Dr. Sheppard, J. Spencer Houk, the mayor of Bay Village, received a telephone call. He recognized the voice of the petitioner who said in words and substance: Spen, come quick. I think they have killed Marilyn. Mayor Houk got up and got dressed, got his wife up and got her dressed, and they got into the family automobile and drove about 75 yards to the Sheppard home. When they entered the home, they found Dr. Sheppard lying on the floor downstairs. Mrs. Houk went upstairs and found Marilyn Sheppard lying in a pool of blood.

(END VIDEO CLIP)

COSSACK: Joining us now from Cleveland is Cuyahoga County Judge Janet Burnside.

Judge Burnside, what is the procedure in this case? What will they have to prove?

JUDGE JANET BURNSIDE, CUYAHOGA COUNTY, OHIO: Well, there's a statutory procedure in Ohio that you can petition the Court of Common Pleas to determine that you're innocent. In other words, you were not the individual that committed the crime, and this only applies to a narrow class of individuals who have been convicted of the crime, served time in a reformatory for that, and subsequently had the conviction overturned under circumstances in which no further appeal can be had and the prosecution cannot prosecute you again.

VAN SUSTEREN: Judge, in a criminal case, it's proof beyond a reasonable doubt. What is the burden of proof in this proceeding? BURNSIDE: Well, this is a civil proceeding and the law is clear. It is by a preponderance of the evidence. The greater weight of the evidence is all that the plaintiff has to prove in his or her quest to be found to be a wrongfully imprisoned individual who hasn't committed the crime they were placed in prison for.

COSSACK: Judge, is this a two-step process? In other words, does the Sheppard family or does Sam Sheppard have to be successful at this stage to show that, in fact, his father was actually innocent, and then go on to a wrongful imprisonment lawsuit?

BURNSIDE: Actually, this is the court determination that Dr. Sheppard was innocent of this crime. Now, once this determination should be reached by the Court of Common Pleas -- and, of course, in this case it's sitting with a jury -- it's a simple matter of taking that judgment to the Court of Claims and putting on your evidence of the damages that the wrongfully imprisoned person suffered as a result of this experience.

VAN SUSTEREN: Brady, it seems that presented in this case by Sam Reese Sheppard are two theories: One is that Mr. Eberling did it, and then you have the testimony of F. Lee Bailey in which it's suggested some neighbors may have been involved in it. Does it help a litigant to have those two theories, or does it dilute what you're doing, do you think?

BRADY TOENSING, CIVIL LITIGATOR: Well, I imagine anything that draws suspicion away from Dr. Sheppard would be good for Dr. Sheppard. The preponderance of evidence standard requires only that he prove by 51 percent, or anything over 50 percent, that he was innocent.

VAN SUSTEREN: What about the fact that -- I mean, Sam Reese Sheppard's father has been dead since about 1970 and you have a client who really is on a mission to clear his family name. Typically, do lawyers like to work with clients who may have a mission or may be very stale, old case, or is that -- I mean, how does that affect it?

TOENSING: Well, this is difficult. I just -- President Eisenhower was in office when Dr. Sheppard was first convicted when these crimes were to have occurred. I think lawyers are pretty apprehensive to take on cases like this because it is emotionally draining for the lawyer, but it seems there's some damages here that the lawyers could get. They can get their attorney's fees. This is just not a principled case.

VAN SUSTEREN: And this is not your run-of-the-mill case, but we need to take a break. We'll be right back. Stay with us.

(BEGIN Q&A)

Q: Which of the following cases was F. Lee Bailey NOT involved with?

A. Boston Strangler

B. Charles Manson C. Patty Hearst

D. O.J. Simpson

A: F. Lee Bailey was not involved with the Manson case.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back. We're talking about the Sam Sheppard case. Fifty years later, it's still in court.

Lee, how old were you when you first got this case? And secondly, what can you tell me about meeting Sam Reese Sheppard about the time you took the case?

BAILEY: I was 28 years old when I took the case, I didn't meet him immediately. He lived with Steve and Betty Sheppard, who are still alive and well out in Oregon, and might be testifying in this case.

Sam was a very pleasant young man, he had everything taken from him when he was very young, he didn't have a lot of focus and direction back then, he lived out in the East Coast for a while. occasionally would come to the house for dinner. And then suddenly, he got fired up and took on this case like a tiger.

COSSACK: Judge, if the Sheppard family is successful, damages will be rewarded. How will they decide what those damages are? how will the jury decide?

BURNSIDE: It is all set out in the statute. But the jury won't be deciding them because once this jury should decide that Dr. Sheppard is innocent, then the statutory proceeding is that you take that judgment to the court of claims, and that is a court that sits without juries. And it will be a judge decision there. But the statute sets out the damages very clearly. It is $25,000 for each year of imprisonment, plus the legal fees and expenses incurred in your defense when you were originally convicted; in addition, your lost earnings and other income from the years of imprisonment; and then, finally, the legal expense, the attorneys' fees of having yourself declared innocent.

VAN SUSTEREN: Brady, lost earnings, how does a lawyer prove lost earnings for a doctor? What do you do?

TOENSING: Well, I imagine the judge would look to the earnings that he had received right before he was convicted.

VAN SUSTEREN: Would he use an economist?

TOENSING: He could use an economist, yes. He would have to use an economist. And but the judge -- It might be difficult to go back to 1964 or 1954 and figure out what his earnings were going to be, but both sides will bring in an economist. VAN SUSTEREN: Lee, how much would it matter that Dr. Sheppard, if he is found innocent in this proceeding, that he, himself, at least I have read, went into a horrible decline and died of liver disease about four years after you got him acquitted?

BAILEY: Well, there is a nice shortcut to his earning capacity. He had a classmate named Dr. Arthur Miller, who was also an orthopedic surgeon, also a doctor of osteopathy, who worked during the 10 years that Sam was in jail and, indeed, the additional four until he died. If you tracked his earnings and compared them with what Sheppard should have earned, it would be a lot of money. Sam never recovered from doing 10 years for a crime he didn't commit. And frankly, I don't know anyone who ever has.

COSSACK: Judge, in the court of claims, when the procedure takes place, exactly how will that work? We've heard that evidence would put on. Will the state try and dispute some of that evidence?

BURNSIDE: Well, it certainly would be open to them to dispute it. They would be the adversary in the court of claims since the issue is: How much out of the state fund will be paid to this claimant?

COSSACK: I see.

That's all the time we have for today. Thanks to our guests and thank you for watching. Is the anthrax vaccination safe? and should members of the U.S. Armed Forces be forced to take it? You can weigh in today on "TALKBACK LIVE." that's at 3:00 p.m. Eastern time, noon Pacific.

VAN SUSTEREN: And we'll be back Monday with another edition of BURDEN OF PROOF. We'll see you then.

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