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"The Killer's Trail"

PBS Airdate: October 19, 1999
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NARRATOR: It was one of the most sensational murders of the century, and it was never solved.

BARRY SCHECK: We all know the story. We all know the fugitive. This solitary, besieged figure literally on the run alone in the wilderness, saying, "I didn't do it. Someone else did. I can prove I'm innocent."

NARRATOR: It happened in Bay Village, Ohio, on July 4th, 1954. In the early hours of the morning, a prominent citizen is murdered in her own bed. Marilyn Sheppard, the wife of a handsome surgeon, killed by more than 15 blows to her head. Today, modern forensic science is still on the killer's trail. But 45 years ago, that trail seemed to lead to the victim's husband. Dr. Sam Sheppard was convicted of murder in a highly publicized trial. Sentenced to life in prison, he served 10 years - until the U.S. Supreme Court overturned his conviction. In a second trial, Sheppard was acquitted, but suspicions about his guilt remained.

TERRY GILBERT: People just felt that he got off because the evidence was kind of stale, and the prosecution just didn't have the leverage that they did in 1954.

NARRATOR: Did Sheppard kill his wife? And if he didn't, who did?

SAM REESE SHEPPARD: My mother was murdered. I want my mother's murder solved.

NARRATOR: Now the son of Marilyn and Sam Sheppard is taking the case to court one final time - suing the state of Ohio for two million dollars for the wrongful imprisonment of his father. And the state of Ohio is fighting his claim.

WILLIAM MASON: Sam Sheppard is the most likely person to have committed that crime. In 1954, they believed it, in 1965 they believed it, and we still believe it now.

NARRATOR: Along with a team of attorneys and forensic scientists, Sheppard will try to prove his father's innocence and build a case against the man he believes to be the real killer. Their work could have far-reaching implications. The team will apply new techniques of DNA analysis to re-examine old evidence, using science to extend the reach of justice, even beyond the grave. Perhaps they will also establish once and for all:

Who killed Marilyn Sheppard?

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NARRATOR: Cleveland, Ohio. In this decrepit warehouse, a murder is being planned.

A team of carpenters constructs the scene - the interior of a 1950's suburban home. The house where the actual murder took place was demolished years ago. So the builders use photographs to copy parts of the house in minute detail - down to the actual bed the victim was murdered in. When the set is finished, a team of forensic scientists will re-enact the murder. It's not just a ghoulish exercise. For the last surviving victim of the crime, it's a quest to clear his family's name.

SAM REESE SHEPPARD: It's very important for historic reasons that we set the record straight. My dad, Dr. Samuel H. Sheppard, was innocent of the crime that he was wrongfully convicted of.

NARRATOR: Sheppard and his attorney Terry Gilbert are suing the state of Ohio, asking two million dollars in damages. But the state sees the case as a dangerous legal precedent and is fighting it tooth and nail.

REPORTER: Do you think it will bankrupt the state if he -

STEPHANIE TUBBS-JONES: Absolutely. It'll bankrupt my office just to litigate this particular case.

WILLIAM MASON: From a public policy standpoint, are we going to start to allow every wronged person throughout the history of time to now bring claims back against the United States, against the state of Ohio, against Cuyahoga County, for damages for what happened 40, 50 years ago?

NARRATOR: Just what did happen that hot summer night 45 years ago is still shrouded in mystery. On the evening of July 3rd, 1954, Sam Reese Sheppard was looking forward to a family cookout scheduled for the next day. He was seven years old.

SAM REESE SHEPPARD: We were anticipating the holiday. The kitchen was fully stocked with hot dogs and hamburgers and everything. Dad was exhausted from work, which was not unusual. It was a normal night. Mother took me up to bed and tucked me in, which was usual, and I said my prayers and went to sleep.

NARRATOR: At 6 AM, police responded to an agitated call from the Sheppard home. When they arrived, they found Marilyn Sheppard dead. The house had been ransacked.

Dr. Sheppard was injured. He had a fractured vertebra and a swollen face. When questioned by police, Sheppard told them a harrowing tale. He said that he had fallen asleep the evening before on a downstairs daybed. He was awakened from a heavy sleep by his wife's screams. He raced up the stairs. As he entered the bedroom, he was hit hard from behind. He blacked out. When he came to, he saw his wife - dead. Suddenly, he heard a noise and realized the intruder was still downstairs. The Sheppards' house looked out on Lake Erie. Sheppard said that he chased the man down the stairs to the beach. He caught up and struggled with the man, but the intruder was too strong, and knocked him out again. Dr. Sheppard described the attacker as tall, with a large head and bushy hair. But the police were never convinced of his story. And over the next few weeks, there was mounting pressure to make an arrest.

TERRY GILBERT: Well, it was a terrible crime, a brutally murdered young woman in a prominent family. The husband was on the scene. They really had no other leads but him, and he was an easy target.

NARRATOR: The Sheppards were one of Bay Village's more glamorous families.

SAM REESE SHEPPARD: They were kind of the beautiful people. My mother was a cheerleader and good at school, and my dad was kind of an American prince in many ways. He was handsome. He made good grades. He was athletic.

NARRATOR: But there was another side to Sheppard's charm and good looks. There were rumors that that he had cheated on his wife.

TERRY GILBERT: It was easy not to like him, being an arrogant doctor from a wealthy family, and I think the media picked up on that and whipped up that kind of anti-Sheppard sentiment. And from the first day they focused on Dr. Sheppard to the exclusion of anyone else.

NARRATOR: In a series of front-page editorials, Cleveland's major newspaper accused Dr. Sheppard of his wife's murder. Three weeks after the murder, Sheppard was arrested and charged with the crime.

SAM REESE SHEPPARD: And he was gone. And they were putting him on trial for his life.

NARRATOR: At the trial, the prosecution argued that Sheppard's story just didn't add up.

TERRY GILBERT: The story that he gave was, to many people, just too preposterous, That while the wife slept upstairs, and the husband was downstairs on a daybed, that somebody could just walk into that house and commit this horrible crime.

NARRATOR: Sheppard seemed to be hiding something. Then prosecutors caught him in a lie. At an inquest, Sheppard stated that he had never been unfaithful to his wife. But at trial, prosecutors presented Susan Hayes, a 24-year-old medical technician. She described a three-year sexual affair with Dr. Sheppard. The revelations rocked Cleveland, and the trial soon became an international story.

SAM REESE SHEPPARD: Cleveland was a city in hysteria, almost a lynch mob, after close to 50, 70 days of banner line headlines saying this family was getting away with murder, this privileged family and this handsome doctor with five girlfriends.

NARRATOR: Throughout the trial, Sheppard's attorney objected to the crush of reporters and cameras in the courtroom, but the judge, running for re-election, refused to restrain the media. After eight weeks of testimony, the jury returned its verdict.

TERRY GILBERT: He lied about an affair. They felt that if he could lie about that, he could lie about the murder, and I think that helped convict him.

NARRATOR: Sheppard was transferred to prison. Then, three weeks later, his mother shot and killed herself. His father died days later from a bleeding ulcer. Sheppard would later write that the only thing keeping him from suicide was Sam Reese, his son.

SAM REESE SHEPPARD: He had nothing to live for. He lived for me. I am thankful for that because if he had taken himself out, I don't think I would have survived all of this either.

NARRATOR: The set is almost finished. Now, Gilbert's team of experts is ready to go to work. Over the next few days, they'll re-examine every aspect of the case - particularly the work of Paul Kirk, a pioneering forensic scientist who studied the crime scene after Sheppard's conviction. Kirk, who usually worked for prosecutors, was hired by the Sheppard family to evaluate the evidence. He agreed to take the case, but warned that he might only find further evidence of Sheppard's guilt.

BART EPSTEIN: He was clear to the people that retained him to come and see this scene that he was going to observe it in neutrality, that he was not going to come with any preconditioned ideas and that he would find whatever he was going to find.

NARRATOR: Kirk was a biochemist by training, and he was also an expert in an obscure forensic specialty - blood spatter analysis. The police had treated the crime scene as little more than a bloody mess, but Kirk understood something the police didn't. The spatters of blood left on the walls and floors of the Sheppard home, if properly interpreted, might provide clues about how the crime was committed.

BART EPSTEIN: At the time of this case in 1954, people in crime labs or investigators knew very little about blood stain patterns and recognizing what they really meant.

NARRATOR: Bart Epstein was Paul Kirk's student in the 1960s. He's been analyzing blood spatters for 30 years.

BART EPSTEIN: Blood spatter analysis is the observation of the aftermath of brutal events.

NARRATOR: It's a simple fact of physics: when a flying drop of blood hits a surface, it leaves a stain with a telltale shape. The shape of the stain indicates not only the direction of travel, but also how far the drop has flown. In the Sheppards' bedroom, Kirk analyzed the shapes of hundreds of blood drops. On the set, Epstein will attempt to reproduce Kirk's findings. He'll work backwards - first, retracing the original blood patterns as Kirk found them, then re-enacting the murder itself. Epstein draws his own blood. Scientific accuracy requires the real thing. A specialized helmet is soaked with the blood. The splatter pattern produced by Epstein's simulation is strikingly similar to the original. The two patterns exhibit drops of similar size, spacing and height. But that's not all. Epstein's splatters matched the ones Dr. Kirk found in another way. This is a bird's eye view of the murder room drawn by Kirk. In one corner of the room, he noted that the walls were completely free of splatters, as if something had blocked the flying blood.

BART EPSTEIN: This would indicate something was in between the spattering and those walls, intercepting these blood stains.

NARRATOR: What cast this bloodless shadow? It was the killer himself. Marilyn Sheppard's attacker had shielded the corner of the room with his own body.

BART EPSTEIN: Blood was spattered up from the victim up onto the perpetrator's face and upper body.

NARRATOR: Blood that would have hit the corner of the room was intercepted by the killer. So he had to have been splattered with blood.

BARRY SHECK: Like all good forensic work, it's elegant, simple and common sense. Anybody can see from that scene that the perpetrator had to be covered in blood from the struggle with Marilyn Sheppard and the banging of her on the head.

NARRATOR: Kirk's finding didn't fit with the case against Dr. Sheppard because, on the morning of the murder, the police noted that Sheppard had no blood on him, except for a small smudge on his trousers. But Kirk wasn't finished. He turned his attention to the closet door, and one, unusual blood stain. This stain was significantly larger than the others. It could have flown only inches before hitting the wall. It couldn't have come from the bed. So where did it come from?

BART EPSTEIN: Observation of the blood stains on that closet door revealed a large stain, about an inch in diameter, that clearly was produced by some other mechanism than the beating of Marilyn Sheppard that caused all the other stains.

NARRATOR: Dr. Kirk believed that the large stain was left by the killer, who must have been wounded during the struggle. Evidence for this theory came from outside the bedroom - the trail of blood drops leading out of the house. Investigators documented over 40 drops in the blood trail. At trial, the prosecution claimed that the blood trail came from the dripping murder weapon. They said that Dr. Sheppard himself had carried the weapon, probably one of his surgical instruments, through the house, dripping along the way, but Kirk knew that was impossible. A murder weapon could not retain enough blood to create such a long blood trail. But if a weapon couldn't leave the blood trail, there was something that could - an open wound. Kirk believed that in the desperate struggle for her life, Marilyn Sheppard had wounded her attacker. The killer then spilled his own blood as he escaped. Kirk wrote in his report that it wasn't a dripping murder weapon, but the bleeding murderer who had left the blood trail - and the large stain on the closet door. This finding as well flew in the face of the case against Dr. Sheppard because on the morning of the murder, investigators examined Dr. Sheppard top to bottom. Their finding: not a scratch on him.

BARRY SCHECK: Everybody agrees that Sam Sheppard wasn't bleeding.

NARRATOR: It was a stunning piece of scientific deduction. From a seemingly random set of blood stains, Kirk had found compelling evidence that Dr. Sheppard might have been telling the truth all along.

TERRY GILBERT: Dr. Kirk basically broke the case, and through forensic science, showed Sheppard was innocent.

NARRATOR: Sheppard's lawyers immediately filed for an appeal, based on Kirk's findings, but their motion was denied. The Ohio Court ruled that the report had come too late to be considered.

BARRY SHECK: Kind of a nightmare, isn't it? That a man could be accused and convicted of killing his wife and be innocent.

NARRATOR: Dr. Sheppard would spend the next ten years behind bars. 1963. The case takes a turn when a brash young attorney named F. Lee Bailey becomes Sheppard's lawyer. Bailey files a new appeal - claiming that Sheppard didn't get a fair trial, a result of the slanted media coverage at the time. In a landmark ruling, the Supreme Court overturns Sheppard's conviction and sets new rules for media coverage. Within months, Sheppard is tried again, but this time, Dr. Kirk is the star witness. The trial lasts three weeks. The verdict - not guilty.

REPORTER: Dr. Sheppard, can you describe your recent experience in the Ohio state penitentiary - nightmare for you?

SAM SHEPPARD: It was hell.

NARRATOR: Sheppard is already remarried to a woman he corresponded with in prison. He and his new family are determined to put the long nightmare behind them.

SAM REESE SHEPPARD: It was a victory. I mean we were all full of hope. But as time went on, Dad couldn't live a regular life. He continued to be harassed. Dad couldn't work. He could hardly walk down the street. People would yell murderer, wife murderer at him.

NARRATOR: Dr. Sheppard turns to alcohol and drugs.

SAM REESE SHEPPARD: His spirit was finally broken. He was in utter despair. He had nothing left to live for.

NARRATOR: Incredibly, in the last years of his life, he becomes a professional wrestler, his nickname in the ring: "Killer Sheppard".

SAM REESE SHEPPARD: People don't understand the depths that he was driven to. He became kind of a satirical caricature of himself. His life was poisoned.

NARRATOR: Four years after his acquittal, Dr. Sam Sheppard died. He was 46 years old.

SAM REESE SHEPPARD: My dad was vilified to death by this state. That is wrong. That should not happen again.

NARRATOR: Sam Reese Sheppard has spent his adult life working to clear his father's name. Now, he has his final chance in the lawsuit he and attorney Terry Gilbert are bringing against the state of Ohio.

TERRY GILBERT : We are using a vehicle called the wrongful imprisonment statute which allows for people who have been wrongfully incarcerated to be able to go to court and get compensation from the state.

NARRATOR: It's an uphill battle. To win, they'll need an Ohio jury to declare Dr. Sheppard innocent of his wife's murder. That's a much tougher legal standard than a simple acquittal.

BARRY SCHECK: I don't think people understand that an acquittal, in the minds of many, just means that you raised a reasonable doubt. Here was a man who, of course, after his conviction, his case was reversed. He goes to trial. He's acquitted. and many people will come forward and say, well, an acquittal only means there was a reasonable doubt. It doesn't mean that you have proven to a higher standard - innocence.

NARRATOR: Gilbert needs to convince a jury beyond all reasonable doubt that Sheppard did not kill his wife. He'd like to use a powerful new scientific tool, unavailable at the earlier trials, that could potentially settle the question once and for all - forensic DNA analysis. DNA is the material that makes up our genes, found within almost every cell in our body. Human DNA is made up of billions of chemical building blocks. At certain locations, the arrangement of these building blocks varies in predictable ways from one individual to another. These variations are called alleles, and they are the key to DNA fingerprinting. If enough of them can be observed and compared, these genetic variations can identify an individual as uniquely as a fingerprint. Scientists are now able to compare the DNA found at crime scenes to DNA taken from suspects. From those comparisons, they can identify likely participants in a crime.

DR. KEITH INMAN: The power of DNA is to be able to look at an item of evidence and to say that very few people are potential contributors or donors to that stain. And if you have a suspect, or a victim, or someone that you think might match, you can compare their reference sample to the evidence type and say that, yes, they are a potential contributor, and so few other people are possible contributors that it's almost certain that it's this individual.

NARRATOR: As valuable as it may be in prosecuting crime, it's DNA's ability to rule out suspects that holds the most power. Barry Sheck, who attacked the prosecution's DNA results in the O.J. Simpson case, sees it as a revolutionary new tool to give those falsely convicted a way to prove their innocence.

BARRY SHECK: We're now in North America, I think, up to something on the order of 64 cases where we have proven people who have been convicted innocent with the use of DNA testing. We've taken people off death row, people that were days, five days from execution. We've proven them innocent with this DNA testing. This is an unprecedented number of exonerations in the history of American jurisprudence.

NARRATOR: The defense team hopes that DNA can rewrite the verdict of history in the Sheppard case. But they need biological evidence, so they've spent years tracking down surviving artifacts from the crime.

TERRY GILBERT: Lo and behold, we found over 100 pieces of forensic evidence that was still in the coroner's office over 40 years ago.

NARRATOR: Gilbert enlists the aid of Dr. Mohammad Tahir, a forensic DNA specialist in Indianapolis. He sends Tahir a set of artifacts, all stained with blood from the crime, among them: a wood chip lifted from the stairs of the Sheppards' house; a section of flooring from the porch and a scraping from the closet door blood stain. Tahir agrees to test the samples, but warns that any biological material in them may have already decomposed.

DR. MOHAMMAD ASHRAF TAHIR: The concern was that this is a very small quantity and this is very old. And that was the only concern, that we might not be able to get any results.

NARRATOR: The poor quality of the samples means that Tahir cannot use the most discriminating tests, which require large quantities of intact DNA.

DR. KEITH INMAN: The older the sample is, the more degraded the DNA becomes. And that means that some DNA tests will simply not work, because they need relatively undegraded DNA. On the other hand, some DNA tests are designed to use DNA of very small pieces, that is, relatively highly degraded DNA.

NARRATOR: Tahir chooses a test called DQA1. The test is named for the tiny segment of human DNA that it analyzes. The DQA1 test is designed to work with tiny quantities of DNA, but it isn't very discriminating. The test can identify only 8 different alleles in 42 possible combinations. Any one of those combinations is shared by millions of people.

So the power of the test to pinpoint any one individual is limited, but with only degraded DNA in the samples, it's Tahir's best choice. His first step is to increase the quantity of DNA the test will have to work with. To do this, he places a portion of each crime-scene sample into a vial. Then he adds a chemical cocktail that stimulates the process of DNA replication. The samples are then placed into a thermal cycler, which speeds the process of replication through precise warming and cooling of the samples. Within hours, any DNA present in the original samples has replicated into millions of copies. Once the crime scene samples are analyzed, Tahir will test the DNA of the known participants in the case - Marilyn and Sam Sheppard. He obtains Marilyn's DNA from a few strands of her hair collected after the murder. Finding Dr. Sheppard's DNA proves more difficult. So Sam Reese Sheppard grants permission to have his father's body exhumed for tissue sampling. Even though his test is limited, Tahir still hopes he can answer the crucial question: Was Dr. Sheppard's blood part of the gruesome crime scene that night? Or will the DNA exclude him? Until the test is complete, the team won't know whether the DNA helps or hurts them. So they'll continue to chip away at the original case against Sheppard. One unresolved aspect of the crime is the murder weapon. It was searched for, but never found. At Sheppard's first trial, the coroner presented his theory of the murder weapon. He said it was probably a hinged surgical instrument with sharp edges. Coroner Sam Gerber testified that an imprint of the weapon could be seen on Marilyn's blood-stained pillow. The testimony was damaging to Dr. Sheppard. But was the murder weapon really a surgical tool? The team discovers a never before seen police report that raises another possibility. The report describes the discovery of a badly dented flashlight, found in the lake near the Sheppard home.

JIM CHAPMAN: The light has been damaged by striking something repeatedly, and the case has been dented -

NARRATOR: Could a flashlight like the one described have been used to kill Marilyn Sheppard? Dr. Kirk believed that a cylindrical object was the most likely murder weapon.

The team contacts Dr. Michael Sobel of the University of Pittsburgh. Using forensic skin mark analysis, he'll try to determine the most likely shape of the murder weapon.

DR. MICHAEL SOBEL : One, two, three, four, five, six, seven....

NARRATOR: By striking a model of Marilyn Sheppard's head, Sobel will attempt to reproduce the fatal wounds.

DR. MICHAEL SOBEL: Here's a 1950s flashlight, and if we strike a blow, we can see there's an elliptical pattern. I will outline it for you here, which is similar to some of these other wounds that we see.

NARRATOR: But Marilyn's wounds were more than skin deep - her skull was fractured.

TERRY GILBERT: We found a police report -

NARRATOR: Gilbert confers with Pittsburgh medical examiner Cyril Wecht to see if the fractures can reveal anything about the weapon that caused them.

TERRY GILBERT: What I need to know from you is whether or not these injuries could have been caused by a flashlight like this.

DR. CYRIL WECHT: These pictures now show us the calvarium, the top of the skull, with the scalp reflected.

NARRATOR: The size and pattern of the skull fractures suggest they were made by a blunt object, not a sharp one.

DR. CYRIL WECHT: These fractures are exactly what we would find from a blunt force instrument such as this flashlight.

NARRATOR: The forensic experts agree with Kirk - a cylindrical object, not a surgical instrument, was the likely murder weapon. Gilbert also asks Wecht about another unresolved aspect of the case. Was Marilyn Sheppard, then four months pregnant, sexually assaulted? Kirk believed she was. He wrote that the position of her body indicated a sexual attack. Wecht agrees. It's a crucial point. If a rape did occur, it would support Gilbert's theory that an intruder, not her husband, killed Mrs. Sheppard. And the intruder theory is reinforced when another surprising document turns up in the files.

JIM CHAPMAN: I have a police report that was authored dated July 23rd, 1954, it appeared to be a freshly made tool mark in a door at the foot of the basement stairs.

NARRATOR: A tool mark, a scratch or gouge made by a tool like a screwdriver, is frequently a sign of a break-in.

JIM CHAPMAN: If someone's going to burgle or go into a home and commit a crime, and you have a flashlight to see your way and a pry bar or screwdriver to pry open the door, it makes sense.

TERRY GILBERT: This document destroys the entire prosecution theory of the case. It leads to a third suspect breaking in the house, somehow -

NARRATOR: The Gilbert team is building a detailed theory of the crime. On the night of the murder, a burglar breaks into the house, intending to steal - and to sexually assault Marilyn. But when she fights back, wounding her attacker, he flies into a rage, kills her with his flashlight and runs out of the house, bleeding.

TERRY GILBERT: Let me try to put this case in perspective.

NARRATOR: It's plausible, but Gilbert knows it's probably not enough to guarantee victory. For that, he needs something more. He needs to identify the real killer.

TERRY GILBERT: The state of Ohio has never tried to find the actual killer, and through our reinvestigation of this case, we were not only trying to clear Dr. Sheppard's name, but also develop a case against who we believe to be the real killer.

NARRATOR: Gilbert thinks he knows who the real killer is. He's a man who was first questioned about the crime in 1959, and has been suspected ever since. His name is Richard Eberling. Sam Reese Sheppard once visited Eberling in prison, where he was serving a life sentence for an unrelated murder. Sheppard wanted to see the man who had reportedly bragged to other inmates that he had murdered Marilyn Sheppard and gotten away with it.

SAM REESE SHEPPARD: Well, it was excruciating. I really went there just to satisfy myself - to see what this man was about.

NARRATOR: In 1954, Eberling ran a window washing business in Bay Village. The Sheppards were among his customers. Five years after the murder, Eberling was arrested for larceny. In his possession was one of Marilyn Sheppard's rings. During police questioning, Eberling made a strange statement. He volunteered that he had cut himself - and bled while working inside the Sheppard home a few days before the murder. Was Eberling trying to cover his bloody tracks? Sam Reese found that Eberling had an eerie familiarity with the details of the crime.

SAM REESE SHEPPARD: He proceeded to tell me and talk as if he were actually present at the murder. I felt very definitely, yes, that this guy could have been the murderer.

NARRATOR: But for 40 years there's never been enough evidence to make a case against Eberling. Gilbert obtains a court order to have Eberling's blood drawn for DNA testing. The blood is sent to Dr. Tahir's lab for analysis. It's a gamble. If the DNA ties Eberling to the crime scene, it will be the first physical evidence linking him to the murder. But if the results exclude Eberling, Gilbert will lose a pillar of his case. Dr. Tahir can now complete the testing. The DNA from each of the samples, from the crime scene, from the Sheppards, and from Eberling, is now poured over the sensitized paper test strips that will reveal the long awaited results. Each test strip is printed with a set of numbers.

The numbers refer to the 8 specific alleles the test can detect. Indicators turn blue when the test has detected a specific allele. In this example, the test has detected the number 2 allele, and the 4.1 allele. Once Tahir obtains a test strip for each DNA sample, he will carefully chart the results, and present his findings to the defense team. Tahir will lay out the results one sample at a time. Then the team will try to make sense of them. Two of the crime scene samples come from the blood trail - the wood chip from the stairs, and the blood stain lifted from the porch. At the first trial, the prosecution argued that the blood trail came from a weapon dripping with Marilyn's blood - carried by the killer as he fled the house. What does the DNA show? The porch stain tests positive for the 4.1 allele only. The wood chip also shows the 4.1, as well as the alleles 1.1, 2 and 3. How does this compare to Marilyn Sheppard's DNA? Her alleles turn out to be 1.1 and 1.3.

BARRY SCHECK: If it were Marilyn Sheppard's blood, you would expect to see the 1.3. You don't see it.

NARRATOR: One or both of Marilyn's alleles are absent from the blood trail samples.

Marilyn is therefore excluded as a donor to these stains. So the prosecution's theory was wrong. A murder weapon dripping with Marilyn's blood didn't leave the blood trail. Then whose blood was it? Kirk believed the blood trail was left by the bleeding murderer.

Was it Dr. Sheppard? His alleles turn out to be 1.2 and 1.3. So Dr. Sheppard is also excluded from the blood trail, since neither the porch stain nor the wood chip contain both his alleles.

TERRY GILBERT: The results show absolutely, conclusively, 100% definitively that Dr. Sheppard is excluded as a source of the blood trail in that particular crime scene.

NARRATOR: The DNA results have corroborated the most important part of Gilbert's case. Since neither Marilyn nor Dr. Sheppard contributed to the blood trail - a third person had to be in the house that night. Could it have been Richard Eberling? Eberling has two copies of the same allele - the 4.1. And the 4.1 shows up in both the porch stain and the wood chip. One stain in the blood trail, the porch stain, matches his type perfectly.

TERRY GILBERT: Richard Eberling cannot be excluded.

NARRATOR: Tahir next presents the results from the most important stain in the case - the large spot from the closet door. Dr. Kirk predicted it would be a mixture of the killer's blood and Mrs. Sheppard's.

BARRY SCHECK: What's always impressive in science is if somebody says, here's my hypothesis: that stain is going to be from the perpetrator who struggled with the victim. It'll be his blood and perhaps some of the victim's blood. And the DNA results corroborate that.

NARRATOR: Indeed, the spot contains the 1.1, 1.3 and 4.1 types - an apparently perfect mixture of Marilyn Sheppard's and Richard Eberling's alleles. It appears the results have not only excluded Dr. Sheppard, but have nailed the case against Eberling. But the evidence against Eberling is weaker than it seems. Sheck, experienced in attacking DNA evidence, begins to point out problems. The porch stain, which matches Eberling exactly, will never stand up in court.

BARRY SCHECK: Legally, it's worthless because certain controls failed, and you're not going to get it into court.

NARRATOR: The control dot on the test strip didn't turn blue. That means there wasn't enough DNA of any kind to be considered reliable. So the result, even though it's consistent with the other samples, could be an error. What about the most compelling piece of evidence, the large spot on the closet door? It seems to contain a perfect mixture of Eberling and Marilyn's types. But this result, too, is inconclusive. Because the test itself has a quirky limitation. The stain contains a mixture of the 1.1 allele and the 1.3. In this situation, the test is unable to detect the 1.2 allele - even if it's there. And since Dr. Sheppard's alleles are 1.2 and 1.3, Tahir can't rule out the possibility that Dr. Sheppard's type is present in the closet door sample. The test simply cannot tell.

DR. MOHAMMAD ASHRAF TAHIR: I cannot give any conclusion about the inclusion or the exclusion in the stain for Dr. Sam Sheppard. He may be there. He may not be there.

NARRATOR: Gilbert will try to persuade the jury to overlook the ambiguity. Why assume Dr. Sam's type is hiding in the closet door stain - since it's nowhere else in the blood trail?

TERRY GILBERT: There's an interpretive aspect of it as well. When you look at that piece of evidence vs. the other pieces of evidence where Sam was excluded, it is reasonable to say that that DNA test is excluding Sam.

NARRATOR: And there's another problem, one that looms over nearly all DNA analysis - contamination. A number of samples contain alleles that don't match any of the key players - not Marilyn, Sam, or Eberling. Why? The samples were collected decades before DNA testing was developed. Anyone who handled them over the years could have left their own DNA, from a sneeze, a drop of sweat, even a flake of skin. So it's possible that, like the other mystery alleles, the 4.1 could have come from contamination, and not Richard Eberling.

DR. KEITH INMAN: Given what we know about most of this evidence, its history of handling and passing from one person to another, the results that we have, in my mind, are essentially worthless. There are so many alternatives that one must consider that almost no real conclusion can be drawn.

NARRATOR: Nevertheless, Gilbert decides to go public with the DNA results.

TERRY GILBERT: Sheppard is excluded as the donor of the blood in the trail.

NARRATOR: He calls a press conference to argue the case against Eberling.

TERRY GILBERT: The trail of blood could only have come from the killer. And Richard Eberling cannot be removed from the equation. It presents the kind of compelling case that people are prosecuted and even put on death row, every day in American courts. And this is -

NARRATOR: Gilbert takes a calculated risk. He demands that the prosecutor indict Eberling for the murder of Marilyn Sheppard.

TERRY GILBERT: The prosecutor's office has a duty to investigate crime. They have a responsibility by law to follow through. We want to know what's going to be done. The answer of -

NARRATOR: A criminal indictment would give Gilbert a strong hand in his civil case. But the strategy backfires. The prosecutors, Stephanie Tubbs-Jones and Carmen Marino, are furious at Gilbert's grandstanding.

STEPHANIE TUBBS-JONES: Today you have attempted to take on my role, being a prosecutor, suggesting that this is the evidence that I should have in order to be able to prosecute the case.

TERRY GILBERT: You know what I said -

STEPHANIE TUBBS-JONES: Wait, wait, wait. I heard what you said. My question is - let me ask you this question, Terry. Put yourself in the shoes of the defense lawyer, the good one that you are. Right? And assume that I put this evidence out on your client. What would you say to the court as to its admissibility? What would you say? Tell truth. Tell truth.

NARRATOR: Tubbs-Jones grills Tahir on the weakness of the DNA evidence against Eberling.

STEPHANIE TUBBS-JONES: But when you say he cannot be excluded, that doesn't necessarily mean that that's his blood.

DR. MOHAMMAD ASHRAF TAHIR: He's among the group of people -

STEPHANIE TUBBS-JONES: And who - how many people are in this group? That's what I'm asking.

TERRY GILBERT: How many -

STEPHANIE TUBBS-JONES: I'm asking the witness, not you.

NARRATOR: Gilbert knows that Eberling's 4.1 allele is shared by millions of people - a fact sure to come up in court.

DR. MOHAMMAD ASHRAF TAHIR: The only thing I can say is, it's not Marilyn's, it's not Sam's.

STEPHANIE TUBBS-JONES: But so - you cannot say - you say he cannot be excluded. If my blood - can you test me and see if I could be excluded? How many other people can't be excluded?

DR. TAHIR: I can test you -

TERRY GILBERT: Why don't you let the man explain it to you, instead of cross-examining him like in court?

NARRATOR: Gilbert may have miscalculated.

TERRY GILBERT: I mean, you prosecute cases every day with evidence like that.

STEPHANIE TUBBS-JONES: No, but I'm just -

NARRATOR: By trying to force their hand, he may have pushed the prosecutors into fighting the case even harder. In 1998, events take another turn. Richard Eberling dies in prison from heart failure. Any hope of a confession is gone. Soon after, Stephanie Tubbs-Jones is elected to the United States Congress. The new prosecutor, Bill Mason, makes a surprise announcement. He orders the exhumation of Marilyn Sheppard's body, in order to conduct a new examination of her head injuries, as well as another round of DNA typing. He wants his experts to find flaws in the science now central to Gilbert's case.

WILLIAM MASON: We'll probably never know what exactly occurred in 1954 when Marilyn Sheppard was murdered. Do we know the truth? I think we do. I think we have enough evidence to indicate that Sam Sheppard committed that murder.

SAM REESE SHEPPARD: I doubt that the system will ever, ever admit the huge mistake that was made and the lives that were destroyed by the wrongful incarceration of my dad.

TERRY GILBERT: It's never easy to get justice. It's very difficult. In spite of our beliefs and our strengths, you know, we don't know what will happen, but we're thankful that we're going to be able to present the case. Maybe that's as good as it gets.

The science of solving a murder. Could 3-D mug shots and laser imaging help prevent cases of mistaken identity? See some of the crime fighting tools of the future on NOVA's Website.

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Next time on NOVA: Take the flight of your life. Climb inside the cockpit of a Russian fighter plane. If you did this at an American air base, you wouldn't have a career left.

"Top Gun over Moscow."

 

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