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49 Clev. St. L. Rev. 465 (2001)
Convicting the Innocent beyond a Reasonable Doubt: Some Lessons about Jury Instructions from the Sheppard Case

handle is hein.journals/clevslr49 and id is 475 raw text is: CONVICTING THE INNOCENT BEYOND A REASONABLE DOUBT: SOME LESSONS ABOUT JURY INSTRUCTIONS FROM THE SHEPPARD CASE LAWRENCE M. SOLAN I. INTRODUCTION ....................................................................... 465 II. JURY INSTRUCTIONS IN THE SHEPPARD TRIAL ......................... 468 A. Three Criteria for a Good Jury Instruction .................... 468 B. The Presumption of Innocence ....................................... 472 C. Proof Beyond a Reasonable Doubt ................................. 473 D. Circumstantial Evidence: The Judge and the ................ 476 C herry Tree ..................................................................... 476 III. SHIFTING THE BURDEN OF PROOF ........................................... 480 A. Proof vs. Reasonable Doubt ........................................... 481 B. Some Troubling Definitions of Doubt ............................. 484 IV . C ONCLUSION ........................................................................... 485 I. INTRODUCTION We can never know for certain who bludgeoned Marilyn Sheppard to death early in the morning of July 4, 1954. We weren't there. But in his recent book, The Wrong Man, j ournalist James Neff argues convincingly that the most likely killer was Richard Eberling, a sociopath who killed other women after stealing from them over the course of a long criminal career.2 Eberling was convicted for one of these killings, but Neff makes a strong case that there were other victims as well, including Marilyn Sheppard. At the time of Mrs. Sheppard's death, Eberling had worked for the Sheppards as a window cleaner. The evidence against him includes some DNA evidence, which was probative but not entirely conclusive, a reported confession, opportunity, conduct consistent with other crimes he was known to have committed and with Dr. Sheppard's story of what happened the night his wife was murdered, and a series of Eberling's statements tying him to the crime scene, made both before and during his incarceration for killing another woman. Some of these statements were made to Neff, who had been interviewing Eberling in prison, where Eberling died in 1998. Let us assume that Neff is right. If so, the most important question is what went wrong with the system of justice that led to Dr. Sheppard's conviction for his wife's murder in 1954. The question is serious enough if only because of the tragedy that 'Professor of Law, Brooklyn Law School. I am grateful to George Carr, Patricia Falk and Adam Thurschwell for their generous help with difficult issues of Ohio law and for their sharing legal materials. 2JAMES NEFF, THE WRONG MAN: THE FINAL VERDICT ON THE DR. SAM SHEPPARD MURDER CASE (2001).

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