- 7 months ago
A re-examination of the forensic evidence largely ignored during the 1954 murder trial of Dr. Sam Sheppard, convicted of killing his wife.
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00:00During the following program, look for NOVA's webmarkers which lead you to more information at our website.
00:15It was one of the most sensational murders of the century, and it was never solved.
00:22We all know the story. We all know the fugitive.
00:27This solitary, besieged figure, literally on the run, alone in the wilderness, saying,
00:34I didn't do it, someone else did, I can prove I'm innocent.
00:40It happened in Bay Village, Ohio, on July 4th, 1954.
00:48In the early hours of the morning, a prominent citizen is murdered in her own bed.
00:54Marilyn Shepherd, the wife of a handsome surgeon, killed by more than 15 blows to her head.
01:03Today, modern forensic science is still on the killer's trail.
01:10But 45 years ago, that trail seemed to lead to the victim's husband.
01:15Dr. Sam Shepherd was convicted of murder in a highly publicized trial.
01:23Sentenced to life in prison, he served 10 years until the U.S. Supreme Court overturned his conviction.
01:30In a second trial, Shepard was acquitted.
01:38But suspicions about his guilt remained.
01:41People 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.
01:51Did Shepard kill his wife?
01:57And if he didn't, who did?
02:02My mother was murdered.
02:04I want my mother's murder solved.
02:07Now the son of Marilyn and Sam Shepard is taking the case to court one final time.
02:11Suing the state of Ohio for $2 million for the wrongful imprisonment of his father.
02:20And the state of Ohio is fighting his claim.
02:24Sam Shepard is the most likely person to have committed that crime.
02:28In 1954 they believed it, in 1965 they believed it, and we still believe it now.
02:34Along with a team of attorneys and forensic scientists, Shepard will try to prove his father's innocence.
02:40And build a case against the man he believes to be the real killer.
02:47Their work could have far-reaching implications.
02:51The team will apply new techniques of DNA analysis to re-examine old evidence.
02:58Using science to extend the reach of justice, even beyond the grave.
03:04Perhaps they will also establish, once and for all, who killed Marilyn Shepard.
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03:19Quality television.
03:20Major funding for NOVA is provided by the Park Foundation.
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03:30Major funding for NOVA is provided by the Park Foundation.
03:33Dedicated to education and quality television.
03:35This program is funded in part by Northwestern Mutual Life, which has been protecting families and businesses for generations.
03:55Have you heard from The Quiet Company? Northwestern Mutual Life.
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04:16And by the Corporation for Public Broadcasting.
04:20And by contributions to your PBS station from viewers like you.
04:29Cleveland, Ohio.
04:33In this decrepit warehouse, a murder is being planned.
04:42A team of carpenters construct the scene.
04:46The interior of a 1950s suburban home.
04:49It's not identical to the one from the Shepard's house, but it's close.
04:54The house where the actual murder took place was demolished years ago.
05:00Going into where...
05:02So the builders used photographs to copy parts of the house in minute detail.
05:07Wow.
05:09Down to the actual bed the victim was murdered in.
05:12Listen, I think this is Marilyn's bed right here.
05:14Mm-hmm.
05:15That's Sam's.
05:16No.
05:18When the set is finished, a team of forensic scientists will reenact the murder.
05:22Ready? We're gonna start hitting.
05:24Yeah.
05:26It's not just a ghoulish exercise.
05:28For the last surviving victim of the crime, it's a quest to clear his family's name.
05:34It's very important for historic reasons that we set the record straight.
05:39My dad, Dr. Samuel H. Shepard, was innocent of the crime that he was wrongfully convicted of.
05:49Shepard and his attorney, Terry Gilbert, are suing the state of Ohio, asking $2 million in damages.
05:56Sum up your position on whether or not the claim should die.
05:59But the state sees the case as a dangerous legal precedent and is fighting it tooth and nail.
06:05Do you think it will bankrupt the state if this claim is allowed?
06:07Absolutely. It will bankrupt my office just to litigate this particular case.
06:11From a public policy standpoint, are we going to start to allow every wrong person throughout the history of time
06:17to now bring claims back against the United States, against the state of Ohio, against Cuyahoga County,
06:23for damages for what happened 40, 50 years ago?
06:28Just what did happen that hot summer night 45 years ago is still shrouded in mystery.
06:35On the evening of July 3rd, 1954, Sam Reese Shepard was looking forward to a family cookout scheduled for the next day.
06:51He was seven years old.
06:55We were anticipating the holiday.
06:58The kitchen was fully stocked with hot dogs and hamburgers and everything.
07:02Dad was exhausted from work, which was not unusual.
07:06It was a normal night.
07:08Mother took me up to bed and tucked me in, which was usual, and I said my prayers and went to sleep.
07:18At 6 a.m., police responded to an agitated call from the Shepard home.
07:24When they arrived, they found Marilyn Shepard dead.
07:28The house had been ransacked.
07:32Dr. Shepard was injured.
07:35He had a fractured vertebra and a swollen face.
07:39When questioned by police, Shepard told them a harrowing tale.
07:44He said that he had fallen asleep the evening before on a downstairs daybed.
07:54He was awakened from a heavy sleep by his wife's screams.
07:59He raced up the stairs.
08:00As he entered the bedroom, he was hit hard from behind.
08:07He blacked out.
08:09When he came to, he saw his wife.
08:13Dead.
08:15Suddenly, he heard a noise and realized the intruder was still downstairs.
08:20The Shepard's house looked out on Lake Erie.
08:25Shepard said that he chased the man down the stairs to the beach.
08:29He caught up and struggled with the man.
08:33But the intruder was too strong and knocked him out again.
08:36Dr. Shepard described the attacker as tall, with a large head and bushy hair.
08:47But the police were never convinced of his story.
08:50And over the next few weeks, there was mounting pressure to make an arrest.
08:55Well, it was a terrible crime.
08:58A brutally murdered young woman in a prominent family.
09:02The husband was on the scene.
09:05They really had no other leads but him.
09:08And he was an easy target.
09:11The Shepards were one of Bay Village's more glamorous families.
09:16They were kind of the beautiful people.
09:18My mother was a cheerleader and good at school,
09:22and my dad was kind of an American prince in many ways.
09:25He was handsome, he made good grades, he was athletic.
09:28But there was another side to Shepard's charm and good looks.
09:33There were rumors that he had cheated on his wife.
09:38It was easy not to like him, being an arrogant doctor from a wealthy family.
09:45And I think the media picked up on that and whipped up that kind of anti-Shepard sentiment.
09:50And from the first day they focused on Dr. Shepard to the exclusion of anyone else.
10:00In a series of front page editorials, Cleveland's major newspaper accused Dr. Shepard of his wife's murder.
10:06Three weeks after the murder, Shepard was arrested and charged with the crime.
10:16And he was gone.
10:19And they were putting him on trial for his life.
10:23At the trial, the prosecution argued that Shepard's story just didn't add up.
10:28The story that he gave was, to many people, just too preposterous.
10:35That while the wife slept upstairs and the husband was downstairs on a day bed,
10:42that somebody could just walk into that house and commit this horrible crime.
10:48Shepard seemed to be hiding something.
10:51Then, prosecutors caught him in a lie.
10:57At an inquest, Shepard stated that he had never been unfaithful to his wife.
11:04But at trial, prosecutors presented Susan Hayes, a 24-year-old medical technician.
11:14She described a three-year sexual affair with Dr. Shepard.
11:17The revelations rocked Cleveland.
11:21And the trial soon became an international story.
11:26Cleveland was a city in hysteria.
11:29Almost a lynch mob.
11:31After close to 50, 70 days, a banner line headline saying that this family was getting away with murder.
11:38This privileged family and this handsome doctor with five girlfriends.
11:43Throughout the trial, Shepard's attorney objected to the crush of reporters and cameras in the courtroom.
11:54But the judge, running for reelection, refused to restrain the media.
12:01After eight weeks of testimony, the jury returned its verdict.
12:05He lied about an affair.
12:09And they felt that if he could lie about that, he could lie about the murder.
12:16And I think that helped convict him.
12:18Shepard was transferred to prison.
12:21Then, three weeks later, his mother shot and killed herself.
12:26His father died days later from a bleeding ulcer.
12:29Shepard would later write that the only thing keeping him from suicide was Sam Reese, his son.
12:39He had nothing to live for. He lived for me.
12:42I am thankful for that because if he had taken himself out, I don't think I would have survived all of this either.
12:47Okay, this chair has to go in the corner of the bed here.
12:53The set is almost finished.
12:56Now, Gilbert's team of experts is ready to go to work.
13:00Pleasure to meet you. Pleasure to meet you.
13:02Over the next few days, they'll re-examine every aspect of the case.
13:06Particularly, the work of Paul Kirk,
13:09a pioneering forensic scientist who studied the crime scene after Shepard's conviction.
13:19Kirk, who usually worked for prosecutors,
13:22was hired by the Shepard family to evaluate the evidence.
13:28He agreed to take the case,
13:30but warned that he might only find further evidence of Shepard's guilt.
13:34He was clear to the people that retained him to come and see this scene,
13:38that he was going to observe it in neutrality.
13:41That he was not going to come with any preconditioned ideas,
13:45and he would find whatever he was going to find.
13:49Kirk was a biochemist by training,
13:52but he was also an expert in an obscure forensic specialty,
13:56blood spatter analysis.
14:02The police had treated the crime scene as little more than a bloody mess.
14:09But Kirk understood something the police didn't.
14:12The spatters of blood left on the walls and floors of the Shepard home,
14:17if properly interpreted,
14:19might provide clues about how the crime was committed.
14:22At the time of this case,
14:24people in crime labs or investigators knew very little about blood-stained patterns
14:28and recognizing what they really meant.
14:34Bart Epstein was Paul Kirk's student in the 1960s.
14:38He's been analyzing blood spatters for 30 years.
14:41Blood spatter analysis is the observation of the aftermath of brutal events.
14:46It's a simple fact of physics.
14:52When a flying drop of blood hits a surface,
14:55it leaves a stain with a tell-tale shape.
15:00The shape of the stain indicates not only the direction of travel,
15:04but also how far the drop has flown.
15:07In the Shepard's bedroom,
15:10Kirk analyzed the shapes of hundreds of blood drops.
15:18On the set, Epstein will attempt to reproduce Kirk's findings.
15:23He'll work backwards,
15:25first retracing the original blood patterns as Kirk found them.
15:31Then, re-enacting the murder itself.
15:33Epstein draws his own blood.
15:41Scientific accuracy requires the real thing.
15:51A specialized helmet is soaked with the blood.
15:59Ready? We're going to start hitting.
16:00I'm going to compare the stains that it was just produced by this hitting attack.
16:08The splatter pattern produced by Epstein's simulation
16:12is strikingly similar to the original.
16:15The two patterns exhibit drops of similar size, spacing, and height.
16:21But that's not all.
16:24Epstein's splatters match the ones Dr. Kirk found in another way.
16:28This is a bird's eye view of the murder room drawn by Kirk.
16:33In one corner of the room,
16:37he noted that the walls were completely free of splatters,
16:41as if something had blocked the flying blood.
16:44This would indicate something was in between the spattering and those walls,
16:50intercepting these blood stains.
16:51What cast this bloodless shadow?
16:54It was the killer himself.
16:58Marilyn Shepard's attacker had shielded the corner of the room with his own body.
17:06Blood was spattered up from the victim, up onto the perpetrator's face and upper body.
17:14Blood that would have hit the corner of the room was intercepted by the killer.
17:21So he had to have been splattered with blood.
17:24Like all good forensic work, it's elegant, simple, and common sense.
17:31Anybody can see from that scene that the perpetrator had to be covered in blood.
17:38From the struggle with Marilyn Shepard and the banging of her on the head.
17:41Kirk's finding didn't fit with the case against Dr. Shepard.
17:48Because on the morning of the murder,
17:51the police noted that Shepard had no blood on him,
17:54except for a small smudge on his trousers.
18:00But Kirk wasn't finished.
18:03He turned his attention to the closet door and one unusual blood stain.
18:07This stain was significantly larger than the others.
18:15It could have flown only inches before hitting the wall.
18:20It couldn't have come from the bed.
18:24So where did it come from?
18:27The observation of the blood stains on that closet door revealed a large stain,
18:33about an inch in diameter, that clearly was produced by some other mechanism than the beating of Marilyn Shepard that caused all the other stains.
18:43Dr. Kirk believed that the large stain was left by the killer,
18:49who must have been wounded during the struggle.
18:54Evidence for this theory came from outside the bedroom.
18:56The trail of blood drops leading out of the house.
19:01Here are the stairs going to the second floor, where there were a number of blood spots found.
19:08Investigators documented over 40 drops in the blood trail.
19:13At trial, the prosecution claimed that the blood trail came from the dripping murder weapon.
19:19They said that Dr. Shepard himself had carried the weapon, probably one of his surgical instruments,
19:27through the house, dripping along the way.
19:32But Kirk knew that was impossible.
19:35A murder weapon could not retain enough blood to create such a long blood trail.
19:41You only get seven or eight drops at most because there's no more blood to replenish it.
19:57That's about it.
19:59But if a weapon couldn't leave the blood trail, it was something that could.
20:04An open wound.
20:05Kirk believed that in the desperate struggle for her life, Marilyn Shepard had wounded her attacker.
20:15This simulates an active bleeding source from a wound.
20:19The killer then spilled his own blood as he escaped.
20:28Kirk wrote in his report that it wasn't a dripping murder weapon,
20:31but the bleeding murderer who had left the blood trail and the large stain on the closet door.
20:40This finding as well flew in the face of the case against Dr. Shepard.
20:46Because on the morning of the murder, investigators examined Dr. Shepard top to bottom.
20:52Their finding, not a scratch on him.
20:55Everybody agrees Sam Shepard wasn't bleeding.
21:00It was a stunning piece of scientific deduction.
21:05From a seemingly random set of blood stains, Kirk had found compelling evidence that Dr. Shepard might have been telling the truth all along.
21:15Dr. Kirk basically broke the case and through forensic science showed how Shepard was innocent.
21:25Shepard's lawyers immediately filed for an appeal based on Kirk's findings.
21:31But their motion was denied.
21:35The Ohio court ruled that the report had come too late to be considered.
21:41Kind of a nightmare, isn't it, that a man could be accused and convicted of killing his wife and be innocent.
21:54Dr. Shepard would spend the next ten years behind bars.
21:581963.
22:05The case takes a turn when a brash young attorney named F. Lee Bailey becomes Shepard's lawyer.
22:13I read the trial record and I met Dr. Sam and I felt that he was innocent.
22:17Bailey files a new appeal, claiming that Shepard didn't get a fair trial.
22:22A result of the slanted media coverage at the time.
22:25In a landmark ruling, the Supreme Court overturns Shepard's conviction and sets new rules for media coverage.
22:36Within months, Shepard is tried again.
22:43But this time, Dr. Kirk is the star witness.
22:46The trial lasts three weeks.
22:51The verdict? Not guilty.
22:55Dr. Kirk, can you briefly describe your most recent experience in the Ohio Penitent bike there for you?
23:01It was hell.
23:03Shepard is already remarried to a woman he corresponded with in prison.
23:08He and his new family are determined to put the long nightmare behind them.
23:15It was a victory. I mean, we were all full of hope.
23:18But, as time went on, Dad couldn't live a regular life.
23:23He continued to be harassed.
23:27Dad couldn't work. He could hardly walk down the street.
23:30People would yell murder, wife murder at him.
23:35Dr. Shepard turns to alcohol and drugs.
23:39His spirit was finally broken.
23:43He was in utter despair. He had nothing left to live for.
23:49Incredibly, in the last years of his life, he becomes a professional wrestler.
23:54His nickname in the ring, Killer Shepard.
24:02People don't understand the depths that he was driven to.
24:07He became kind of a satirical caricature of himself.
24:13His life was poisoned.
24:18Four years after his acquittal, Dr. Sam Shepard died.
24:22He was 46 years old.
24:28My dad was vilified to death by this state.
24:32That is wrong. That should not happen again.
24:35Sam Reese Shepard has spent his adult life working to clear his father's name.
24:40Now, he has his final chance.
24:44In the lawsuit he and attorney Terry Gilbert are bringing against the state of Ohio.
24:48We 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.
25:02It's an uphill battle. To win, they'll need an Ohio jury to declare Dr. Shepard innocent of his wife's murder.
25:11That's a much tougher legal standard than a simple acquittal.
25:14From your hard work. Yeah.
25:17Well, I don't think people understand that an acquittal, in the minds of many, just means that you're raised a reasonable doubt.
25:25Here was a man who, of course, after his conviction, his case is reversed, he goes to trial, he's acquitted.
25:31And many people will come forward and say, well, an acquittal only means that there was a reasonable doubt.
25:38It doesn't mean that you have proven to a higher standard innocence.
25:43They say it's a privileged work product.
25:46Gilbert needs to convince a jury, beyond all reasonable doubt, that Shepard did not kill his wife.
25:51Unless we do that rebuttal.
25:54He'd like to use a powerful new scientific tool, unavailable at the earlier trials, that could potentially settle the question once and for all.
26:04Forensic DNA analysis.
26:10DNA is the material that makes up our genes, found within almost every cell in our body.
26:16Human DNA is made up of billions of chemical building blocks.
26:23At certain locations, the arrangement of these building blocks varies in predictable ways, from one individual to another.
26:32These variations are called alleles, and they are the key to DNA fingerprinting.
26:39If enough of them can be observed and compared, these genetic variations can identify an individual as uniquely as a fingerprint.
26:52Scientists are now able to compare the DNA found at crime scenes to DNA taken from suspects.
26:59From those comparisons, they can identify likely participants in a crime.
27:04The 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.
27:16And 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,
27:24and 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.
27:35As valuable as it may be in prosecuting crime, it's DNA's ability to rule out suspects that holds the most power.
27:43Barry 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.
27:59We'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.
28:10We've taken people off death row, people that were days, five days from execution.
28:17We've proven them innocent with this DNA testing. This is an unprecedented number of exonerations in the history of American jurisprudence.
28:26The defense team hopes that DNA can rewrite the verdict of history in the Shepard case.
28:32But they need biological evidence, so they've spent years tracking down surviving artifacts from the crime.
28:41Lo and behold, we found over 100 pieces of forensic evidence that was still in the coroner's office over 40 years ago.
28:49Gilbert enlists the aid of Dr. Muhammad Tahir, a forensic DNA specialist in Indianapolis.
28:55He sends to here a set of artifacts, all stained with blood from the crime.
29:04Among them, a wood chip lifted from the stairs of the Shepard's house.
29:11A section of flooring from the porch.
29:15And a scraping from the closet door blood stain.
29:25Tahir agrees to test the samples, but warns that any biological material in them may have already decomposed.
29:32The concern was that this is very small quantity, and this is very old.
29:41And that was the only concern that we may not be able to get any results.
29:47The poor quality of the samples means that Tahir cannot use the most discriminating tests,
29:53which require large quantities of intact DNA.
29:56The older the sample is, the more degraded the DNA becomes.
30:02And that means that some DNA tests will simply not work,
30:06because they need relatively undegraded DNA.
30:09On the other hand, some DNA tests are designed to use DNA of very small pieces,
30:15that is, relatively highly degraded DNA.
30:19Tahir chooses a test called DQA1.
30:22The test is named for the tiny segment of human DNA that it analyzes.
30:32The DQA1 test is designed to work with tiny quantities of DNA,
30:38but it isn't very discriminating.
30:41The test can identify only eight different alleles in 42 possible combinations.
30:47Any one of these combinations is shared by millions of people.
30:54So the power of the test to pinpoint any one individual is limited.
31:02But with only degraded DNA in the samples, it's Tahir's best choice.
31:08His first step is to increase the quantity of DNA the test will have to work with.
31:13To do this, he places a portion of each crime scene sample into a vial.
31:21Then he adds a chemical cocktail that stimulates the process of DNA replication.
31:28The samples are then placed into a thermal cycler,
31:32which speeds the process of replication through precise warming and cooling of the samples.
31:37Within hours, any DNA present in the original samples has replicated into millions of copies.
31:48Once the crime scene samples are analyzed, Tahir will test the DNA of the known participants in the case.
31:55Marilyn and Sam Shepard.
32:02He obtains Marilyn's DNA from a few strands of her hair collected after the murder.
32:10Finding Dr. Shepard's DNA proves more difficult.
32:13So Sam Shepard grants permission to have his father's body exhumed for tissue sampling.
32:23Even though his test is limited, Tahir still hopes he can answer the crucial question.
32:31Was Dr. Shepard's blood part of the gruesome crime scene that night?
32:39Or will the DNA exclude him?
32:42Until the test is complete, the team won't know whether the DNA helps or hurts them.
32:49So they'll continue to chip away at the original case against Shepard.
32:59One unresolved aspect of the crime is the murder weapon.
33:04It was searched for, but never found.
33:10At Shepard's first trial, the coroner presented his theory of the murder weapon.
33:15He said it was probably a hinged surgical instrument with sharp edges.
33:22Coroner Sam Gerber testified that an imprint of the weapon could be seen on Marilyn's bloodstained pillow.
33:30The testimony was damaging to Dr. Shepard.
33:36But was the murder weapon really a surgical tool?
33:40The team discovers a never-before-seen police report that raises another possibility.
33:49The report describes the discovery of a badly-dented flashlight found in the lake near the Shepard home.
33:57The light has been damaged by striking something repeatedly.
34:01Could a flashlight, like the one described, have been used to kill Marilyn Shepard?
34:06The flange of a flashlight could cause this wound.
34:09Dr. Kirk believed a cylindrical object was the most likely murder weapon.
34:14The team contacts Dr. Michael Sobel of the University of Pittsburgh.
34:20Using forensic skin mark analysis, he'll try to determine the most likely shape of the murder weapon.
34:27One, two, three, four, five, six, seven.
34:33By striking a model of Marilyn Shepard's head, Sobel will attempt to reproduce the fatal wounds.
34:40Here's a 1950s flashlight.
34:43And if we strike a blow, we can see there's an elliptical pattern.
34:49I will outline it for you here, which is similar to some of these other wounds that we see.
35:00But Marilyn's wounds were more than skin deep.
35:04Her skull was fractured.
35:07We found a police report.
35:09Gilbert confers with Pittsburgh medical examiner Cyril Wecht to see if the fractures can reveal anything about the weapon that caused them.
35:17So what I need to know from you is whether or not these injuries could have been caused by a flashlight like this.
35:26These pictures now show us the calvarium, the top of the skull, with the scalp reflected.
35:35The size and pattern of the skull fractures suggest they were made by a blunt object, not a sharp one.
35:41These fractures are exactly what we would find from a blunt force instrument such as this flashlight.
35:51The forensic experts agree with Kirk.
35:55A cylindrical object, not a surgical instrument, was the likely murder weapon.
35:59Gilbert also asks Wecht about another unresolved aspect of the case.
36:06Was Marilyn Shepherd, then four months pregnant, sexually assaulted?
36:13Kirk believed she was.
36:16He wrote that the position of her body indicated a sexual attack.
36:19The legs extended over the end of the bed hanging down to the floor.
36:27Wecht agrees.
36:29This is a position in which an assailant effectuating this kind of brutal murder would place a female victim in order to have some kind of sexual activity.
36:42It's a crucial point.
36:45If a rape did occur, it would support Gilbert's theory that an intruder, not her husband, killed Mrs. Shepherd.
36:57And the intruder theory is reinforced when another surprising document turns up in the files.
37:03I have a police report that was authored July 23, 1954, appeared to be a freshly made tool mark in a door at the foot of the basement stairs.
37:14A tool mark, a scratch or gouge made by a tool like a screwdriver, is frequently a sign of a break-in.
37:22If 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 flashlight or a screwdriver to pry open the door, it makes sense.
37:37This document destroys the entire prosecution theory of the case.
37:42It leads to a third suspect breaking in the house.
37:45The Gilbert team is building a detailed theory of the crime.
37:48On the night of the murder, a burglar breaks into the house intending to steal and to sexually assault Marilyn.
38:00But when she fights back, wounding her attacker, he flies into a rage, kills her with his flashlight and runs out of the house, bleeding.
38:13All right, let me try to put this case in perspective.
38:15It's plausible, but Gilbert knows it's probably not enough to guarantee victory.
38:22For that, he needs something more.
38:26He needs to identify the real killer.
38:30The state of Ohio has never tried to find the actual killer.
38:34And through our reinvestigation of this case, we were not only trying to clear Dr. Shepard's name, but also develop a case against who we believe to be the real killer.
38:44Gilbert thinks he knows who the real killer is.
38:48Gilbert thinks he knows who the real killer is.
38:51He's a man who was first questioned about the crime in 1959, and has been suspected ever since.
38:58His name is Richard Eberling.
39:03Sam Reese Shepard once visited Eberling in prison, where he was serving a life sentence for an unrelated murder.
39:12Shepard wanted to see the man who had reportedly bragged to other inmates that he had murdered Marilyn Shepard and gotten away with it.
39:21Well, it was excruciating.
39:25I really went there just to satisfy myself about to see what this man was about.
39:33In 1954, Eberling ran a window washing business in Bay Village.
39:39The Shepards were among his customers.
39:46Five years after the murder, Eberling was arrested for larceny.
39:51In his possession was one of Marilyn Shepard's rings.
39:57During police questioning, Eberling made a strange statement.
40:01He volunteered that he had cut himself and bled while working inside the Shepard home a few days before the murder.
40:10Was Eberling trying to cover his bloody tracks?
40:17Sam Reese found that Eberling had an eerie familiarity with the details of the crime.
40:22He proceeded to tell me and talk as if he were actually present at the murder.
40:27I felt very definitely, yes, that this guy could have been the murderer.
40:34But for 40 years, there's never been enough evidence to make a case against Eberling.
40:40So give me a call Monday or Tuesday. I'll be in.
40:43Gilbert obtains a court order to have Eberling's blood drawn for DNA testing.
40:50The blood is sent to Dr. Tahir's lab for analysis.
40:54It's a gamble.
40:55If the DNA ties Eberling to the crime scene, it will be the first physical evidence linking him to the murder.
41:05But if the results exclude Eberling, Gilbert will lose a pillar of his case.
41:13Dr. Tahir can now complete the testing.
41:15The DNA from each of the samples, from the crime scene, from the shepherds and from Eberling,
41:22is now poured over the sensitized paper test strips that will reveal the long-awaited results.
41:27Each test strip is printed with a set of numbers.
41:36The numbers refer to the eight specific alleles the test can detect.
41:42Indicators turn blue when the test has detected a specific allele.
41:47In this example, the test has detected the number two allele and the 4.1 allele.
42:00Once Tahir obtains a test strip for each DNA sample, he will carefully chart the results and present his findings to the defense team.
42:08Tahir will lay out the results one sample at a time.
42:16Then the team will try to make sense of them.
42:20Two of the crime scene samples come from the blood trail.
42:23The wood chip from the stairs.
42:29And the blood stain lifted from the porch.
42:35At the first trial, the prosecution argued that the blood trail came from a weapon dripping with Marilyn's blood,
42:42carried by the killer as he fled the house.
42:46What does the DNA show?
42:47The porch stain tests positive for the 4.1 allele only.
42:56The wood chip also shows the 4.1, as well as the alleles 1.1, 2, and 3.
43:07How does this compare to Marilyn Shepherd's DNA?
43:11Her alleles turn out to be 1.1 and 1.3.
43:18If it were Marilyn Shepherd's blood, you would expect to see the 1.3, you don't see it.
43:23One or both of Marilyn's alleles are absent from the blood trail samples.
43:29Marilyn is therefore excluded as a donor to these stains.
43:34So the prosecution's theory was wrong.
43:37A murder weapon dripping with Marilyn's blood didn't leave the blood trail.
43:44Then whose blood was it?
43:48Kirk believed the blood trail was left by the bleeding murderer.
43:53Was it Dr. Shepherd?
43:56His alleles turn out to be 1.2 and 1.3.
44:03So Dr. Shepherd is also excluded from the blood trail,
44:09since neither the porch stain nor the wood chip contain both his alleles.
44:14The results show absolutely conclusively, 100%, definitively,
44:22that Dr. Shepherd is excluded as a source of the blood trail in that particular crime scene.
44:28The DNA results have corroborated the most important part of Gilbert's case,
44:35since neither Marilyn nor Dr. Shepherd contributed to the blood trail.
44:40A third person had to be in the house that night.
44:46Could it have been Richard Eberling?
44:51Eberling has two copies of the same allele, the 4.1.
44:57And the 4.1 shows up in both the porch stain and the wood chip.
45:03One stain in the blood trail, the porch stain, matches his type perfectly.
45:11Richard Eberling cannot be excluded.
45:17Tahir next presents the results from the most important stain in the case,
45:22the large spot from the closet door.
45:27Dr. Kirk predicted it would be a mixture of the killer's blood and Mrs. Shepherd's.
45:33What's always impressive in science is if somebody says,
45:37here's my hypothesis,
45:39that stain is going to be from the perpetrator who struggled with the victim.
45:45It'll be his blood and perhaps some of the victim's blood.
45:51And the DNA results corroborate that.
45:54Indeed, the spot contains the 1.1, 1.3 and 4.1 types,
46:05an apparently perfect mixture of Marilyn Shepard's and Richard Eberling's alleles.
46:09It appears the results have not only excluded Dr. Shepard, but have nailed the case against Eberling.
46:18Nobody would smash their own athletic trophies, but...
46:21But the evidence against Eberling is weaker than it seems.
46:24But I'm telling you, this stain is better because it's cleaner...
46:27Shek, experienced in attacking DNA evidence, begins to point out problems.
46:31And what you have to understand is that this form of DNA testing is not particularly discriminating.
46:38The porch stain, which matches Eberling exactly, will never stand up in court.
46:43Legally, it's worthless because certain controls failed and you're not going to get it into court.
46:48The control dot on the test strip didn't turn blue.
46:54That means there wasn't enough DNA of any kind to be considered reliable.
47:01So the result, even though it's consistent with the other samples, could be an error.
47:09What about the most compelling piece of evidence?
47:12The large spot on the closet door?
47:14It seems to contain a perfect mixture of Eberling and Marilyn's types.
47:21But this result, too, is inconclusive.
47:26Because the test itself has a quirky limitation.
47:31The stain contains a mixture of the 1.1 allele and the 1.3.
47:37In this situation, the test is unable to detect the 1.2 allele,
47:42even if it's there.
47:46And since Dr. Shepard's alleles are 1.2 and 1.3,
47:51Tahir can't rule out the possibility that Dr. Shepard's type is present in the closet door sample.
47:57The test simply cannot tell.
48:00I cannot give any conclusion about the inclusion or the exclusion in the stain for Dr. Sam Shepard.
48:12He may be there, he may not be there.
48:14So who is this third person?
48:17Gilbert will try to persuade the jury to overlook the ambiguity.
48:20Why assume Dr. Sam's type is hiding in the closet door stain since it's nowhere else in the blood trail?
48:26There's an interpretive aspect of it as well.
48:31When you look at that piece of evidence versus the other pieces of evidence where Sam was excluded,
48:37it is reasonable to say that that DNA test is excluding Sam.
48:43And there's another problem, one that looms over nearly all DNA analysis, contamination.
48:50A number of samples contain alleles that don't match any of the key players.
48:58Not Marilyn, Sam or Eberling.
49:01Why?
49:04The samples were collected decades before DNA testing was developed.
49:10Anyone who handled them over the years could have left their own DNA,
49:14from a sneeze, a drop of sweat, even a flake of skin.
49:20So it's possible that like the other mystery alleles,
49:24the 4.1 could have come from contamination, and not Richard Eberling.
49:29Given what we know about most of this evidence,
49:34its history of handling and passing from one person to another,
49:38the results that we have, in my mind, are essentially worthless.
49:41There are so many alternatives that one must consider
49:45that almost no real conclusion can be drawn.
49:50Nevertheless, Gilbert decides to go public with the DNA results.
49:54Shepard is excluded as the donor of the blood in the trail.
50:01He calls a press conference to argue the case against Eberling.
50:05The trail of blood could only have come from the killer,
50:08and Richard Eberling cannot be removed from the equation.
50:12It presents the kind of compelling case that people are prosecuted
50:17and even put on death row every day in American courts.
50:21And this is...
50:23Gilbert takes a calculated risk.
50:25He demands that the prosecutor indict Eberling for the murder of Marilyn Shepard.
50:29The prosecutor's office has a duty to investigate crime.
50:35They have a responsibility by law to follow through.
50:38We want to know what's going to be done.
50:40The answer...
50:42A criminal indictment would give Gilbert a strong hand in his civil case.
50:46But the strategy backfires.
50:48The prosecutors, Stephanie Tubbs Jones and Carmen Marino,
50:54are furious at Gilbert's grandstanding.
50:57Today, you have attempted to take on my role, being the prosecutor.
51:01Say, suggesting that this is the evidence that I should have in order to be able to prosecute the case.
51:07Wait, wait, wait, wait. I heard what you said. My question is...
51:08I told you to investigate.
51:09But let me ask you this question, Terry.
51:12Put yourself in the shoes of the defense lawyer.
51:17The good one that you are. Right?
51:19Right.
51:21And assume that I put this evidence out on your client.
51:24What would you say to the court as to its invisibility?
51:26What would you say? Tell truth.
51:28I will. Tell truth.
51:30Tubbs Jones grills to hear on the weakness of the DNA evidence against Eberling.
51:34But when you say he cannot be excluded, it doesn't necessarily mean that he was...
51:37that that's his blood.
51:38No, he's among the group of people.
51:40How many people are in this group? That's what I'm asking.
51:43How many people?
51:44Well, I'm asking the witness, not you.
51:46Gilbert knows that Eberling's 4.1 allele is shared by millions of people,
51:50a fact sure to come up in court.
51:52The only thing I can say is it's not Madeleine's, it's not Sam.
51:55But you can't say, you say he cannot be excluded.
51:57If my blood, can you test me and see if I can be excluded?
52:01I can test your blood.
52:03How many other people can't be excluded?
52:05Why don't you let the man explain it to you?
52:07Instead of cross-examining him, like in court.
52:10Gilbert may have miscalculated.
52:13I mean, you prosecute cases every day with evidence like that.
52:17No, but I'm just...
52:19By trying to force their hand, he may have pushed the prosecutors into fighting the case even harder.
52:23In 1998, events take another turn.
52:33Richard Eberling dies in prison from heart failure.
52:36Any hope of a confession is gone.
52:40Soon after, Stephanie Tubbs Jones is elected to the United States Congress.
52:44The new prosecutor, Bill Mason, makes a surprise announcement.
52:49He orders the exhumation of Marilyn Shepard's body in order to conduct a new examination of her head injuries,
52:58as well as another round of DNA typing.
53:00He wants his experts to find flaws in the science now central to Gilbert's case.
53:10We'll probably never know what exactly occurred in 1954 when Marilyn Shepard was murdered.
53:15Do we know the truth?
53:16I think we do.
53:18I think we have enough evidence to indicate that Sam Shepard committed that murder.
53:23I doubt that the system will ever, ever admit the huge mistake that was made and the lives that were destroyed by wrongful incarceration of my dad.
53:36It's never easy to get justice. It's very difficult.
53:39In spite of our beliefs and our strengths, you know, we don't know what will happen.
53:47But we're thankful that we're going to be able to present the case.
53:51And maybe that's as good as it gets.
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