Shepard v. United States: On Remand

I covered one of the more famous Evidence cases, Shepard v. United States, in class last week. Shepard concerns “dying declarations,” an exception to the general hearsay bar.  In Shepard, the key hearsay statement is that of a poisoned wife (Mrs. Zenana Shepard), who confides to her nurse, “Dr. Shepard has poisoned me.”  The admissibility of this statement, and another to similar effect, was put before the United States Supreme Court.  In an opinion authored by Justice Cardozo, the Court found that the statements should not have been introduced at trial, since they were not “spoken with the consciousness of a swift and certain doom.”

But all the Supreme Court did was remand the case for further proceedings; what happened next?  As it turns out, Dr. Shepard was acquitted.  If you’re interested, here are a few more details regarding the backdrop for the case and its outcome, as drawn from contemporary media reports. (The case scores about a 6.5 on the Scott Peterson Index of Murder Trial Newsworthiness, judging from these stories. The text below incorporates some close paraphrases and direct quotes from these sources; it is partially, but certainly not entirely, my own work.)

Major Charles A. Shepard was “one of the U.S. army’s most distinguished doctors.”  Born in Toronto in 1871, he married his first wife in 1897; she died in 1913.  In 1917, while working in a tuberculosis sanitarium in California, he married the former Zenana McCoskey.  This remarriage was not a happy one, due, according to Dr. Shepard, to his wife’s heavy drinking — unexceptional now, perhaps, but more of a committed effort back during the Prohibition Era, particularly in a fervently dry state such as Kansas, where the couple was stationed during the last few years of Mrs. Shepard’s life.

Enter the other woman. In the fall of 1928, Shepard was temporarily transferred to a post in San Antonio, Texas, where he met one Grace Brandon.  Shepard soon fell in love, or something like it, with the much, much, much younger (35 years younger, to be precise) Brandon.  He gave her expensive gifts, including “a $1,500 coupe, two bracelets, toilet set, gold ring, canary, check to buy ice skates, necklace, diamond in platinum setting, crystal band necklace, two pearl necklaces, mesh bag, fitted week-end bag, [and] silver fox fur pieces.”  According to Brandon, testifying at Shepard’s trial, Shepard asked her to marry him — not once, not twice, but eight times. In any event, less than a year after Dr. Shepard met Brandon, Mrs. Shepard was dead, seemingly before her time (she was just 37 at the time of her death).

Suspicions settled upon Shepard, of course.  Worsening matters, Shepard opposed any autopsy on his wife, on the curious ground that she had been “inordinately proud of her figure, and had begged him not to let it be mutilated upon her death.”  The autopsy was conducted, regardless, and it was discovered that she had died from poisoning by bichloride of mercury  — which Dr. Shepard kept in his medicine chest.

After a lengthy Department of Justice investigation, Dr. Shepard was tried for his wife’s murder. The prosecution theory was that Mrs. Shepard had accurately identified her killer — her husband had indeed poisoned her by slipping mercury into her whisky.  To this effect, the prosecution relied upon the autopsy diagnosis of mercury poisoning, Brandon’s testimony (including her assertion that once, over dinner, he had toasted “To our early marriage”), as well as the testimony of Mrs. Shepard’s nurse concerning the aforementioned statements by the decedent.

The defense responded that Mrs. Shepard either committed suicide, had ingested the mercury through her mouthwash, or simply had drank herself to death. The defense also pointed out that Dr. Shepard had brought in other physicians to consult about Mrs. Shepard’s ultimately terminal sickness; they called Mrs. Shepard’s own grandmother to the stand to testify that her granddaughter’s “fondness for liquor had driven her mother insane”; they had soldiers testify that Mrs. Shepard had asked them to buy whisky for her; and they called acquiantances of the deceased to testify that they had seen her drink ”as much as a water glass full of whisky at a time.”

The jury convicted Dr. Shepard, naturally; otherwise there would have been no appeal, and ultimately no Cardozo opinion.  Interestingly, Dr. Shepard was released free on bond while his appeal was pending, and went back to work at a Denver hospital.  (One wonders whether today, a convicted murderer would be permitted to reinitiate his practice while his appeal in a death-by-poison case was pending.  Probably not, I would suspect.)  Meanwhile, Shepard’s romance with Brandon fizzled; adverse testimony in a capital trial has a way of snuffing out infatuation.  Happily for Shepard, while his case was on appeal he met and married another woman, the former Alice J. Watt, a widow and “wealthy Denver socialite.”  Watt and Shepard married in 1933, a few months before Cardozo issued his opinion.

But all the opinion did was return the case back to the federal district court in Topeka, where the earlier trial had taken place.  Prosecutors resolved to retry the case.  Ms. Brandon testified, again; the defense, again, parried with theories of suicide or accidental poisoning.  As he had done in the first trial, Shepard testified on his own behalf. This time, the outcome was different, justifying in hindsight Cardozo’s surmise that the nurse’s testimony at the first trial could not be classified as harmless.  Though it took 16 hours, the jury in the second trial returned a non-guilty verdict, upon which “[t]he major’s face broke into a wide smile.”

In any event, this is just a top-line recap of a very interesting case.  If any Evidence professors out there would like me to send them some old newspaper clippings regarding the trial and retrial, please let me know.  One wonderfully lurid wire story about the case can be found here, as it ran in the Wilmington, Delaware Morning Star on December 31, 1933.

**Update: I amended the discussion of the defense case after reading a few more articles that related the testimony given at the first trial, and added a link to a news article on the Shepard-Watt romance**

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