How Sheppard Won

Sam Sheppard's second trial for killing his wife was bound to be different from his first one twelve years ago. For one thing, Cleveland Judge Francis Tally reserved only a few seats for reporters as he went out of his way to prevent any repetition of the "prejudicial publicity" that had moved the Supreme Court to reverse Sheppard's conviction. But even if courtroom decorum was improved, how could Prosecutor John T. Corrigan be prevented from persuading a new jury to reach the same result? The answer had to come from Boston Lawyer F. Lee Bailey, who was barely 21 at the time of Sheppard's first trial, and now, at 33, faced the tricky task of trying to beat a prosecution that had already convicted his client once.

Pretty, pregnant Marilyn Sheppard, 31, was murdered in her bedroom in Bay Village near Cleveland about 3:30 a.m. on July 4, 1954. The prosecution contended at the first trial that Osteopath Sheppard killed Marilyn with 27 blows to the head because he loved another woman. Sheppard blamed the murder on a "bushy-haired intruder," who clubbed him from behind and knocked him out. He professed love for his wife, despite her frigidity and his infidelity. "I couldn't possibly have done such a thing," he insisted. The jury rejected his story as "fantastic," and he received a life sentence for second-degree murder.

Although a retrial usually benefits the defense, which then knows the prosecution's case, that advantage may be lost if the defendant takes the stand a second time, especially if he tells a new story. Armed with the first trial record, the prosecutor can trap him into contradictions. Yet if a defendant does not testify, the jury, despite all judicial admonitions, will probably infer guilt. Bailey, however, interviewed the first-trial jurors and was convinced that his client's rather arch answers on the witness stand had hurt him badly. Sheppard did not testify at his second trial and, fortunately for him, neither did Susan Hayes, the attractive lab technician who appeared at Ihe first trial and suggested a motive by admitting she had been Sheppard's mistress. Indeed, This lime, with Susan married and living in California, Ihe prosecution barely gol her name into Ihe record.

Key Man. And sure enough, Bailey offered a new story. Marilyn, he said, was killed by the jealous wife of an unnamed neighbor who either was, or attempted to be, her lover. Another man presumably struck Sheppard. Bailey produced a new witness, Jack Kraken, a bakery deliveryman, who said he once saw Marilyn giving a key to a man with whom she was having coffee in her kitchen. Who was the man? The jury was not allowed to hear; nor did even-handed Judge Tally admit Sheppard's post-murder statement to police naming Marilyn's three "spurned lovers," one of them a neighbor.

Still, Bailey made a point of asking one witness whether Marilyn had ever given him a key. No, said ex-Bay Village Mayor J. Spencer Houk, the next-door neighbor who was among the first on the scene of the crime along with his wife, from whom he is now divorced. Bailey also deflated the idea that Sheppard's own wounds were "self-inflicted;" Not so, testified the doctor who examined him after the murder; Sheppard's spinal column was actually fractured. Bailey also brought out the fact that police had not even considered Sheppard's injured back when they accused him only six hours later.

Unsolved Mystery. As for the weapon, which was never found, Coroner Sam Gerber no longer sensationally called it a "surgical instrument" that left a distinct imprint on Marilyn's pillow. Gerber now admitted that he had "hunted all over the U.S." for such an instrument, to no avail. Then came Bailey's crusher. University of California Biochemist Paul L. Kirk, a noted criminologist, testified that a blood spot in the murder room came from neither Marilyn nor Sheppard, but from a third adult who was present that night. Moreover, said Kirk, the blood drops that flew off the weapon, which could have even been a flashlight, splattered on the walls in a pattern showing that the slayer was a left-handed person with the strength of a woman rather than a man.

Not only is Sheppard righthanded, Bailey pointed out, but if he had beaten Marilyn with the weapon, "he would have crushed her skull like an eggshell." Impressed by the prosecution's inability to shake Bailey's theory, the jury needed only one day (v. five days in 1954) of deliberation to acquit Sheppard last week--leaving Marilyn's murder more of a mystery than ever.

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