Misplaced Pages

#164835

139-443: Although a continuance is the result of a court order issued by the judge in a trial or hearing, it also can come from a statute or law. The terms continuance and postponement are frequently used interchangeably. The burden of scheduling trials, which includes assembling witnesses, lawyers and jurors at the same time, is not usually a reason to grant continuances in criminal cases, except for compelling reasons. A person accused of

278-442: A "white biped form" in the bedroom and then he was knocked unconscious. When he awoke, he saw the person downstairs, chased the intruder out of the house down to the beach where they tussled and Sheppard was knocked unconscious again. At 5:40 am, a neighbor received an urgent phone call from Sheppard who pleaded for him to come to his home. When the neighbor and his wife arrived, Sheppard was found shirtless and his pants were wet with

417-488: A 24-year-old laboratory technician at Bayview Hospital in Bay village, who had an affair with Sheppard. The prosecution attempted to show that Hayes was the motive for murder. Sheppard's attorney, William Corrigan, argued that Sheppard had severe injuries and that these injuries were inflicted by the intruder. Corrigan based his argument on the report made by neurosurgeon Charles Elkins who examined Sheppard and found he had suffered

556-416: A better condition, and denied the continuance. There has been opposite opinion where a continuance was allowed, and any question of a prospective improvement in the defendant was not the test and irrelevant. A continuance is proper when the accused is unable to assist counsel because of mental illness. The absence of counsel is a recognized ground for continuance of a civil case and is in the discretion of

695-417: A bloodstain on his trousers. Corrigan also argued two of Marilyn's teeth had been broken and that the pieces had been pulled from her mouth, suggesting she had possibly bitten her assailant. He told the jury that Sheppard had no open wounds. Some observers have questioned the accuracy of claims that Marilyn Sheppard lost her teeth while biting her attacker, arguing that her missing teeth are more consistent with

834-411: A bloodstain on the knee. Authorities arrived shortly thereafter. Sheppard seemed disoriented and in shock. The family dog was not heard barking to indicate an intruder, and their seven-year-old son, Sam Reese "Chip" Sheppard, was asleep in the adjacent bedroom throughout the incident. Sheppard's trial began October 18, 1954, and lasted nine weeks. The murder investigation and the trial were notable for

973-401: A cervical concussion, nerve injury, many absent or weak reflexes (most notably on the left side of his body), and injury in the region of the second cervical vertebra in the back of the neck. Elkins stated that it was impossible to fake or simulate the missing reflex responses. The defense further argued the crime scene was extremely bloody, yet the only blood evidence appearing on Sheppard was

1112-657: A court of law. A number of states have adopted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings to enable courts, through voluntary co-operation, to secure the attendance of witnesses from other states. The co-operative states must have adopted the same legislation in order to enter into reciprocal agreements for the attendance of witnesses. The law also applies to grand jury investigations. The issuance of process, including

1251-507: A creative writ, the "writ subpoena", from the Court of Chancery . Writs of many kinds formed the essential parts of litigation. The primary function of a writ in the 13th and 14th centuries was to convey the king's commands to his officers and servants. It was irrelevant what the nature of those commands might be. The Register of Writs shows a large variety of writs to be administrative in nature, as opposed to judicial. These former writs acquired

1390-422: A crime has certain rights defined by the federal constitution, state constitutions and various statutes, such as the right to be represented by counsel, the right to compulsory process (issue of subpoena ad testificandum and subpoena duces tecum ) to secure the attendance of witnesses, gather evidence and the right to a speedy trial . In some cases, denial of a continuance may infringe on such rights and amount to

1529-429: A criminal case where matters arise that could not have been reasonably anticipated. A continuance should be granted where depositions with information tending to create an alibi for the accused had been suppressed. If the defendant has been deceived by the state in a criminal action, a continuance can be granted. A continuance can be granted if there is an amendment to the indictment or introduction of new information in

SECTION 10

#1732848554165

1668-555: A draper of London. Janycoght procured a testifier in maintenance, George Grenelawe who accused him of larceny. The idea was that Janycoght would be convicted of larceny, sentenced to Fleet prison, then released because of obligations owed to him by the keepers of that prison. In this manner, he would escape the debt of Shirbourne. It was discovered that Grenelaw had fabricated the complaint. The abuses were rampant. Increasing strictness against corruption of all kinds at jury trials made many reluctant to testify. The writ subpoena became

1807-597: A general rule, independent of statutory considerations, the writ of habeas corpus ad testificandum under American law may be resorted to for the purpose of removing a person confined in a jail or prison to enable him to testify as a witness. The issuance of such a writ lies within the sound discretion of the court, or the judicial officer having the power to compel the attendance of witnesses. Relevance and materiality are of consideration in such matters. The constitutional right of an accused to compulsory process for obtaining witnesses does not necessarily extend to compelling

1946-427: A good polygraph test." When it was presented to Bailey that an independent polygraph expert said Eberling either murdered Marilyn or had knowledge of who did, Bailey stated that he probably would have presented Eberling as a suspect in the 1966 retrial. DNA evidence, which was not available in the two murder trials, played an important role in the civil trial. DNA analysis of blood at the crime scene showed that there

2085-517: A lifelong friend of Sheppard and administrator of his estate, sued the State of Ohio in the Cuyahoga County Court of Common Pleas for Sheppard's wrongful imprisonment. The case was heard before Judge Ron Suster . By order of the court, Marilyn Sheppard's body was exhumed , in part to determine if the fetus she was carrying had been fathered by Sheppard. Terry Gilbert, an attorney retained by

2224-471: A litigant appearing in person before the Common Bench, exclaimed in great frustration, "For God's sake, can I have a writ to attaint this fraud?" Judge Stanton replied, "Make your bill and you shall have what the court can allow." This illustrates the great flexibility of the writing of writs to conform to the changing fact situations as they varied from case to case. At that time, a plaintiff who sued by bill

2363-553: A medical office in the Columbus suburb of Gahanna, Ohio . On May 10, 1968, Sheppard was granted surgical privileges at the Youngstown Osteopathic Hospital, but "[his] skills as a surgeon had deteriorated, and much of the time he was impaired by alcohol". Five days after he was granted privileges, he performed a discectomy on a woman and accidentally cut an artery; the patient died the next day. On August 6, he nicked

2502-639: A method of settling scores by dueling, was less affected. These had never had, nor did they require, the blessing of the Church. They were never a part of Latin or Roman law, but had been prevalent in the underlying Celtic and Saxon cultures. Trial by ordeal had always been viewed with skepticism and condescension by Latin lawyers and intelligentsia. Trial by battle, for the sake of honor had a long and proud tradition in Rome, and remained prominent in Roman lands. It had been banned by

2641-416: A necessary answer to this problem. Court of Equity grew out of the Court of Chancery , which were controlled by the Church. There was a concern in these institutions that law be congruent with natural moral law. The great concern was equitable justice or "equity". This was not always seen in the common law courts, which were more pragmatic, and were concerned mainly with land law and inheritance. Until

2780-504: A noise downstairs, seemingly in the front eastern portion of the house. Sheppard ran back downstairs and chased what he described as a "bushy-haired intruder" or "form" down to the Lake Erie beach below his home, before being knocked out again. The defense called eighteen character witnesses for Sheppard, and two witnesses who said that they had seen a bushy-haired man near the Sheppard home on

2919-442: A number of tag team bouts with Strickland as his partner. His notoriety made him a strong draw . During his wrestling career, Dr. Sheppard used his anatomical knowledge to develop a new submission hold , that he called the "Mandibular Nerve Pinch". The maneuver would go on to be renamed the " Mandible Claw " and utilized and popularized by professional wrestler Mankind in 1996. After his release from prison, Sheppard opened

SECTION 20

#1732848554165

3058-427: A polygraph test with questions about the murder of Marilyn. The polygraph examiner concluded that Eberling did not show deception in his answers, although the polygraph results were evaluated by other experts years later who found that it was either inconclusive or Eberling was deceptive. In his testimony in the 2000 civil lawsuit, Bailey stated that he rejected Eberling as a suspect in 1966 because "I thought he passed

3197-425: A reaction similar to convulsions that she had in the early days of her pregnancy. I charged into our room and saw a form with a light garment, I believe, at that time grappling with something or someone. During this short period I could hear loud moans or groaning sounds and noises. I was struck down. It seems like I was hit from behind somehow but had grappled this individual from in front or generally in front of me. I

3336-504: A subpoena should be issued to secure the appearance and examination of the defendant. At the bottom of the bill were the names of the pledges to prosecute. These were similar to the bills issued by the Court of Eyre. Those subpoenas issued in Chancery at the time of Henry VI of England were required to have a pledge attached. Statute at that time prohibited the issue of a writ of subpoena until

3475-404: A summons, is regulated by local statutory provisions and rules of the court. These should be consulted. The usual procedure calls for the issuance of a summons by the clerk of the court upon filing a complaint or petition. The Federal Rules of Civil Procedure provides that upon filing of a complaint the clerk of the court must forthwith issue a summons and deliver the summons to the plaintiff or

3614-474: A trial violates the Sixth Amendment right to a speedy trial. The court must consider: Appeal Courts routinely reject Sixth Amendment challenges to a speedy trial, after a criminal conviction. The case of United States v. Loud Hawk did not consider a 90-month delay in trial excessive. In that case, there had been a series of motions consuming a great deal of time. In the 1992 case of Doggett v. United States,

3753-506: A unanimous verdict that Samuel Reese Sheppard had failed to prove by a preponderance of the evidence that his father had been wrongfully imprisoned. On February 22, 2002, the Eighth District Court of Appeals ruled unanimously that the civil case should not have gone to the jury, on the grounds that the statute of limitations had expired, and that a claim for wrongful imprisonment abated with Sam Sheppard's death. In August 2002,

3892-405: A violation of due process —which could result in dismissal of an indictment, or provide grounds for reversal. Courts will lend a defendant all practicable help in securing evidence necessary for a defense, if it is sought in a timely manner. It is usual to grant a continuance if there is a problem in gathering evidence or the serving of subpoenas upon witnesses, if the defendant is not at fault for

4031-525: A wide variety of writs in the 14th century. These were an invention of the Court of Equity , which were a part of Chancery . Thus, "subpoena" was a product of the ecclesiastical courts in England. The commonest writ from this era was the Praecipe quod reddat ("You are commanded to return [some misappropriated good or land]"). To these were often added the phrase sub poena ("under penalty"). The development of

4170-487: A witness. Under the Uniform Rules of Criminal Procedure , the subpoena must state the name of the court and the title, if any, of the proceeding. It must command each person to whom it is directed to attend and give testimony. The time and place must be specified. The rules governing civil and criminal procedure in federal court provide for the subpoena of witnesses, and specify the form and requisites thereof. In

4309-510: Is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the ecclesiastical courts of Church during the High Middle Ages, especially in England. The use of the subpoena writ was gradually adopted over time by civil and criminal courts in England and the European continent. The subpoena developed as

Continuance - Misplaced Pages Continue

4448-419: Is a process in the name of the court or a judge, carrying with it a command dignified by the sanction of the law. A subpoena has been called a mandate lawfully issued under the seal of the court by a clerk thereof. In general, the norm is to have the clerk of the court issue the subpoena for an upcoming trial in that same court. Under the Uniform Rules of Criminal Procedure , a clerk or, someone acting in

4587-428: Is accomplished by way of a court order which specifies terms and conditions, and a determination and certification that the witness is material to a pending criminal proceeding. The Uniform Act defines a "witness" as a person who is confined in a penal institution in any state and whose testimony is desired in another state in any criminal proceeding or other investigation by a grand jury or in any criminal action before

4726-421: Is based on the theory that the court must be unimpeded in its goals, and fear of service could lead to witnesses not appearing, for fear of being served in another pending civil case. Sam Sheppard Samuel Holmes Sheppard ( ( 1923-12-29 ) December 29, 1923 – ( 1970-04-06 ) April 6, 1970) was an American osteopath . He was convicted of the 1954 murder of his pregnant wife, Marilyn Reese Sheppard, but

4865-410: Is immune or privileged from the service of civil process (delivery of a subpoena in a civil case, but not a criminal case ) while in such a state. Usually, immunity is granted to a witness who voluntarily appears to testify for the benefit of another, but it has also been held that the grant of immunity is not affected by the fact that the witness appearance was pursuant to a court order. The immunity

5004-526: Is not affected by the witness' domination of a corporate defendant already in action, or the witness' potential liability as a co-defendant. A witness who appears in court as part of his official duties is immune from service of civil process, and it is irrelevant that his appearance was not under subpoena. Contrary to the general rule, there has been opinion that non-resident witnesses are not exempt from civil process. Many courts encourage witnesses to come forward voluntarily and give testimony. Immunity

5143-408: Is procedural rather than substantive in nature. In general, service of a process upon a non-resident will be set aside where the criminal proceedings are instituted against him in bad faith, or as a ruse or pretext for getting him into the jurisdiction in order to serve him with civil process. As a general rule, a witness who is in attendance at a trial in a state other than that of his residence

5282-405: Is required unless the state (prosecution) effectively concedes prejudice. In the 1981 California case of Martinez v. Superior Court the court used the "reasonable likelihood of prejudice standard" to grant a mandamus petition and order a change of venue in a murder prosecution. The court emphasized extensive publicity over the course of a year prior to the trial, the small size of the county where

5421-454: Is to demand a showing of actual prejudice. In the 1981 case of People v. Botham, the Colorado court overturned the defendant's murder conviction partly because there had been a denial of a change of venue. The court emphasized the number of jurors who had expressed an opinion that the defendant was guilty, the number who had been exposed to pretrial publicity, the juror's knowledge of the details of

5560-628: The American system there is a fundamental right to be heard in due process of law. This is defined in the Fourteenth Amendment of the United States Constitution . A necessary requisite of due process of law is the opportunity to be heard, in a manner which is meaningful, in front of a forum which has an open mind, and is willing to listen to evidence. Adequate notice and an opportunity to confront adverse witnesses must be afforded. As

5699-465: The Fourteenth Amendment of the United States Constitution . These include the right to have effective counsel. Case law discussed. A legitimate difference of opinion in trial tactics between the defendant and counsel (lawyer) can be a reason for dismissing the lawyer in a criminal case, and the seeking of a continuance. A continuance may be granted if the counsel is legitimately engaged in another professional proceeding. A continuance may be granted in

Continuance - Misplaced Pages Continue

5838-467: The Late Middle Ages it was not apparent to contemporaries that there would be, or could be, two different and competing legal systems in England, one of them common law and the other equity. They were, however, aware of the conflicting courts. There was a conflict of jurisdiction. There were numerous complaints that various authorities had exceeded their power. Equity grew in its desire to deal with

5977-494: The Sloan Kettering Institute for Cancer Research , allowing live cancer cells to be injected into his body. Sheppard's attorney William Corrigan spent six years making appeals but all were rejected. On July 30, 1961, Corrigan died and F. Lee Bailey took over as Sheppard's chief counsel. Bailey's petition for a writ of habeas corpus was granted on July 15, 1964, by a United States district court judge who called

6116-455: The Supreme Court of Ohio declined to review the appeals court's decision. A 2002 book theorizes that Marilyn Sheppard was murdered by James Call, an Air Force deserter who passed through Cleveland on a multi-state crime spree at the relevant time. Pages 444-451 show multiple, comparative photographs of Major Call's Luger pistol with the blood-stained pillowcase of Marilyn Sheppard. During

6255-505: The de facto failings of the common law courts, and did not concern itself with doctrinal differences. Often, a suitor who was dissatisfied with the result in a common law court would refile the case in Equity or Chancery. These latter courts saw their role as being "equalizers": socially, legally, economically. In this position, and encouraged by Roman law traditions, they were always creative in producing new writs which could not be found in

6394-468: The 1954 trial a "mockery of justice" that shredded Sheppard's Fourteenth Amendment right to due process. The State of Ohio was ordered to release Sheppard on bond and gave the prosecutor 60 days to bring charges against him, otherwise the case would be dismissed permanently. The State of Ohio appealed the ruling to the U.S. Court of Appeals Court for the Sixth Circuit , which on March 4, 1965, reversed

6533-553: The Church courts on the Continent. Those who wanted to duel simply ignored the ban. Following the Fourth Lateran Council, the civil and common law courts quickly moved to ban trial by ordeal and trial by combat. Implementation proved to be more difficult. What would take their place? The novel choice was trial by jury. In many places, this change was seen as radical and was met with great doubts about its effectiveness. There

6672-526: The Council and Chancery were firmly established. Further legislation only encouraged these institutions. Nowadays, a witness summons can be issued and served upon a person where it is necessary to secure their presence to testify in a court case. In order for the power of the court to compel the appearance and testimony of a witness in United States Federal Courts , or in various state courts,

6811-498: The Council and Chancery. The spirit of the Magna Carta , as well as some specific language within it, was the promise that justice in England to all citizens and their property would be in the common law courts, and nowhere else. In 1331, these proclamations were again re-enacted. In 1351, they were again recited. The King had to promise that the Council would not proceed without indictment of common law process on an original writ. It

6950-582: The King which were roundly feared and hated. They had a reputation for being imperious and angry. There was thought to be little mercy in the Courts of Eyre. Magna Carta limited the Courts of Eyre to visiting the same location once every seven years. The question inevitably arises: Did the writ subpoena develop in the Court of Eyre, or in the Court of Chancery? There were writs of a somewhat similar nature to be found in both courts. Bills (writs of complaints) were

7089-501: The Sheppard family, told the media that "the fetus in this case had previously been autopsied ", a fact that had never previously been disclosed. This, Gilbert argued, raised questions about the coroner's office in the original case possibly concealing pertinent evidence. Due to the passage of time on the fetus's tissues, paternity could not be established. During the civil trial, plaintiff attorney Terry Gilbert contended that Richard Eberling, an occasional handyman and window washer at

SECTION 50

#1732848554165

7228-455: The Sheppard home, was the likeliest suspect in Marilyn's murder. Eberling found Marilyn attractive and he was very familiar with the layout of the Sheppard home. In 1959, detectives were questioning Richard Eberling about various burglaries in the area. Eberling confessed to the burglaries and showed the detectives his loot, which included two rings that belonged to Marilyn Sheppard. Eberling stole

7367-401: The Sixth Amendment. The propriety of the trial court's refusal of a continuance sought on the ground of a want of time for a preparation of the defense of a criminal case depends on the facts and circumstances of the individual case. A conviction may be reversed if, in the discretion of the court, the accused was not given an adequate time to prepare a defense, and this was material in depriving

7506-528: The Speedy Trial Act are: The result of this law has been that many continuances previously issued have been denied. Unless the defendant consents in writing to the contrary, a trial may not commence less than 30 days from the date when the defendant first appears through counsel or expressly waives counsel or elects to proceed pro se (without a lawyer). Case law of the Speedy Trial Act is found in 16 ALR 4th p. 1283 et seq. A defendant's rights under

7645-539: The Speedy Trial Clause of the Sixth Amendment are triggered by "either a formal indictment or information or else the actual restraints imposed by arrest and holding (imprisonment) to answer a criminal charge." In the 1972 Barker v. Wingo case, the United States Supreme Court set out a four-factor test for determining whether delay between the initiation of criminal proceedings and the beginning of

7784-762: The Summer of 1943. Sheppard finished his medical education at the Los Angeles Osteopathic School of Physicians and Surgeons (now University of California Irvine ) and was awarded the Doctor of Osteopathic Medicine (D.O.) medical degree. Sheppard completed his internship and a residency in neurosurgery at Los Angeles County General Hospital . He married Marilyn Reese on February 21, 1945, in Hollywood, California. A few years later he returned to Ohio and joined his father's growing medical practice at Bay View Hospital . On

7923-481: The United States Supreme Court considered an 8½ year delay between indictment and criminal trial excessive. Sometimes press coverage of a criminal act and the trial can become excessive. This is usually greater in one part of the jurisdiction than others. Coverage is often greater in the time immediately following the commission of the crime and also after a high profile arrest. The question becomes: does

8062-408: The accused of a fair trial. A criminal prosecution may be continued if the defendant is too ill to attend the trial. In cases where there is little hope that the accused's health will ever improve, and continuance can properly be denied. Notable is a case of an 80-year-old man who had many delays due to a chronic medical condition. In his trial, the judge ruled there was little hope he would ever be in

8201-468: The accused's defense. Under the Sixth Amendment to the United States Constitution , a person accused of a crime and facing a criminal prosecution, is guaranteed the right to a speedy trial. Various state constitutions also guarantee this right. The Federal Speedy Trial Act of 1974 operates to implement an accused person's constitutional right to a speedy trial. Factors considered by the courts within

8340-407: The attendance of a witness. The court did not err in refusing to order production of a defense alibi witness, where the defense contended that the witness was under subpoena but no evidence was introduced to show that the witness was under subpoena, and no evidence was introduced to show the witness was ever served with a subpoena to testify. Various states have a statutory provision to define

8479-473: The attendance of person in prison. This right is not violated by a statute which makes the right to the production of a witness confined in prison upon the discretion of the court. The Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act provides by way of reciprocity between state for the summoning of a prisoner in one state to appear and testify as a witness in another. This

SECTION 60

#1732848554165

8618-458: The bill of Eyre. However, in the opinions of Professor Adams, Sir Frederick Pollock, 3rd Baronet and Professor Powicke, it is erroneous to conclude that the writ subpoena came from the Bill of Eyre. It came from Chancery. The source of the word writ, or writ subpoena has been ambiguous. The Statute of Westminster II (1285) under the section in consimili casu (in similar case), attempted to limit

8757-500: The blood evidence had been tainted in the years since it was collected, and that an important blood spot on the closet door in Marilyn Sheppard's room potentially included 83% of the adult white population. The defense also pointed out that the results in 1955 from the older blood typing technique, that the blood collected from the closet door was Type O, while Eberling's blood type was Type A. Throughout his life, Richard Eberling

8896-638: The book Endure and Conquer , which presented his side of the case and discussed his years in prison. Levy felt conflicted about collaborating with Sheppard because of his belief that Sheppard had committed the crime. Sheppard's friend and soon-to-be father-in-law, professional wrestler George Strickland, introduced him to wrestling and trained him for it. He debuted in August 1969 at the age of 45 as "Killer" Sam Sheppard, wrestling Wild Bill Scholl. Sheppard wrestled over 40 matches before his death in April 1970, including

9035-447: The case should be remanded for a new trial, opining that the trial court should have limited news access prior to the trial. Change of venue requests, choice of a new venue and where the new venue is sought because of local prejudice varies in different jurisdictions. General case law is discussed. Continuances are traditionally granted to allow the defendant additional time for procuring an absent witness, or other evidence necessary for

9174-465: The censure, overall, proved to be ineffectual. By the Fifteenth Century, the law had become corrupted, and was only another weapon, along with physical violence, for the unscrupulous to achieve their ends. In 1450, Cade proclaimed: "The law serveth of nowght ellys in thes days, but for to do wrong, for nothying is sped almost but false maters by colour of the law for mede, drede and favor." Perjury

9313-442: The clause subpoena routinely attached. The writ quibusdam certis de causis is at least as old at 1346, and had subpoena attached. The great objection which common lawyers made to writs in this form was their failure to mention the cause of the summons. It became the custom in the common law courts that the person would not be compelled to appear without having notice of the reasons for appearing. Early subpoenas carried no notice of

9452-410: The common law courts. It was in this spirit that Justice Berrewyk in 1302, ordered an infant to be brought before the court with a writ subpoena: "under pain of (forfeit) of 100 pounds ". But there is evidence that "threat of penalty" had been attached to writs used by the government to induce behavior as early as 1232. By 1350, the writ certis de causis (the "writ for certain causes"), began having

9591-509: The conviction was eventually overturned by the U.S. Supreme Court , which cited a "carnival atmosphere" at the trial. Sheppard was acquitted at a retrial in 1966. Sheppard was born in Cleveland , Ohio, the youngest of three sons of Richard Allen Sheppard, D.O. He attended Cleveland Heights High School where he was an excellent student and was active in American football, basketball, and track; he

9730-470: The country (accept a jury trial). Notwithstanding this refusal, the court declined to permit him any sort of trial by ordeal, but realizing the gravity of the situation they empanelled an impressive jury of twenty-four knights. These found Thomas guilty, and therefore he was hanged. At this time, even a villain who refused jury trial might have a panel of twenty-four knights. Such a large and distinguished trial by jury consisting of twenty-four knights shows

9869-469: The court to grant or deny. Illness, death or withdrawal of counsel in civil cases are also reasons for granting a continuance. A civil case may be continued due to a lack of evidence or witnesses. An affidavit is usually required to explain the issues involved in the request for a continuance. An affidavit for continuance that did not state the name and address of an absent witness and what the defendant expected to prove by his testimony failed to comply with

10008-512: The court's apprehension at depriving a man of his right to a trial by ordeal. Another example comes from the same year, 1221. An indictment indicated that the carcass of a stolen cow was discovered in William's shed. William did not express a claim to any particular sort of trial. He did state that the cow had been placed there by his lord, so that the latter could get his land as an escheat for felony . The serjeant who arrested William stated that

10147-462: The crime, and the information that was brought forth on voir dire to find that the defendant met the burden of showing a presumption of partiality. A more typical finding is seen in Swindler v. State, a 1991 case from Arkansas that upheld the death penalty and rejected challenges to jury bias and change of venue motion where three jurors were seated who had read and heard about the case, and over 80% of

10286-416: The crime. The defense called into question the credibility of both witnesses during the 2000 civil trial. Eberling died in an Ohio prison in 1998, where he was serving a life sentence for the 1984 murder of Ethel May Durkin. After ten weeks of trial, 76 witnesses, and hundreds of exhibits, the case went to the eight-person civil jury. The jury deliberated just three hours on April 12, 2000, before returning

10425-528: The criminal complaint. A continuance may be granted because unexpected evidence or testimony has emerged. This includes additional witnesses not named in the original indictment, or unanticipated testimony of witnesses, such as major differences of fact from deposition and trial. Minor differences in testimony do not constitute surprise. In some cases, the denial of a continuance to allow for adequate trial preparation may constitute grounds for an allegation of denial of effective assistance of counsel as required by

10564-453: The day of the crime. On December 21, after deliberating for four days, the jury found Sheppard guilty of second-degree murder. He was sentenced to life in prison. On January 7, 1955, shortly after his conviction, the incarcerated Sheppard was told that his mother, Ethel Sheppard, had died from a self-inflicted gunshot. Eleven days later, Sheppard's father, Richard Sheppard, died of a bleeding gastric ulcer and stomach cancer . Sheppard

10703-472: The defendant, a continuance may be properly denied. The Supreme Court of the United States will not postpone argument for the purpose of giving a famous counsel an opportunity to appear for a party adequately represented by other able counsel. Discretion for the criminal trial court to grant or deny a continuance is ultimately limited and defined by the Sixth Amendment to the United States Constitution and

10842-399: The defense or the prosecution of the applicant's case. Several factors are considered in issuing a continuance on the ground that a witness or evidence is absent: To obtain a continuance on the basis of absence of counsel in a criminal trial, the defendant must show that the absence was attributable to some unforeseeable cause. When the absence of counsel is caused by an act or omission of

10981-418: The delay. (See Powell v. Alabama ) Once accused of a crime, the prosecutor has a right to a reasonable opportunity to secure the personal attendance of a witness. A continuance is proper if it appears due diligence has failed to procure the presence of a witness. It must be shown that it is reasonably certain the witness' presence will be subsequently secured, and that the expected testimony will be material to

11120-400: The engagement had been announced, confirming that her half-sister was Magda Ritschel , the wife of Nazi propaganda chief Joseph Goebbels . Tebbenjohanns emphasized that she held no Nazi views. On October 7, 1969, Sheppard and Tebbenjohanns divorced. Jury selection began October 24, 1966, and opening statements began eight days later. Media interest in the trial remained high, but this jury

11259-422: The excessive coverage, including editorial speculation, so color the potential jury pool that a fair trial cannot be had? A continuance of the criminal trial can be granted to transfer the trial to another part of the jurisdiction, or to let passions cool. The movement of the trial is called a change of venue . Federal Rule of Criminal Procedure 21 (a) provides for the transfer of proceedings to another district if

11398-430: The execution and regulation of subpoenas. Louisiana is typical. There the court made this statement: "A statute provides that the court shall issue subpoenas for the compulsory attendance of witnesses at hearings or trials when requested to do so by the state or the defendant." One accused of a crime has a constitutional right to have compulsory process to procure the attendance of witnesses in his favor. The subpoena

11537-539: The extensive publicity. Some newspapers and other media in Ohio were accused of bias against Sheppard and inflammatory coverage of the case, and were criticized for immediately labeling him the only viable suspect. A federal judge later criticized the media, "If ever there was a trial by newspaper, this is a perfect example. And the most insidious example was the Cleveland Press . For some reason that newspaper took upon itself

11676-558: The federal judge's ruling. Bailey appealed to the U.S. Supreme Court, which agreed to hear the case in Sheppard v. Maxwell . On June 6, 1966, the Supreme Court, by an 8-to-1 vote, struck down the murder conviction. The decision noted, among other factors, that a "carnival atmosphere" had permeated the trial, and that the trial judge, Edward J. Blythin , who had died in 1958, was biased against Sheppard because Blythin had refused to sequester

11815-413: The gravest difficulties with jury trials following the abolition of trial by ordeal. Upon the calling of a general Court of Eyre, it was easy to assemble a thousand or more jurors, who could be questioned, and pronounce a prisoner guilty or not. If the proceedings were instigated upon the delivery and indictment from a gaol, before a non-professional judge, most prisoners were coerced to put themselves upon

11954-453: The issuance of a subpoena is evidence of due diligence. In many jurisdictions the service of a subpoena by itself, is insufficient to entitle a party to a continuance because of the absence of a witness. To demonstrate the absence of material evidence in the form of papers, documents and the like, it is usually necessary to show that a subpoena duces tecum has been issued. Subpoena ad testificandum A subpoena ad testificandum

12093-442: The judge is satisfied that there exists a prejudicial atmosphere. To meet the requirements for a transfer, the trial judge must determine that there exists so great a prejudice in favor of the prosecution or against the defendant that there is a reasonable likelihood the defendant cannot obtain a fair and impartial trial. In the famous 1966 Sam Sheppard case, ( Sheppard v. Maxwell ) the United States Supreme Court held that where there

12232-431: The jurors called were excused for cause. Extensive case law is discussed. Perhaps the most famous case in pre-trial publicity is that of Sheppard v. Maxwell argued by F. Lee Bailey . Sam Sheppard , a doctor was convicted of second degree murder of his wife. The case had been subjected to a large amount of pre-trial news coverage and widespread speculation about Sheppard's guilt. The United States Supreme Court ruled that

12371-465: The jury system began to be rationalized and regarded as a judicial body. Bracton (circa 1250) seemed to be fairly complacent with the jury as an institution. Other contemporaneous writers were markedly dissatisfied with the jury. The Mirror of Justices contains a violent attack on the jury system from 1290. In those parts of France where the jury system took root at the same time, there were tremendous protests against it, as being oppressive. From

12510-401: The jury was not sequestered , two of the jurors admitted to the judge that they heard the broadcast but the judge did not dismiss them. From interviews with some of the jurors years later, it is likely that jurors were contaminated by the press before the trial and perhaps during it. The U.S. Supreme Court later stated that the trial was surrounded by a "carnival atmosphere". Susan Hayes was

12649-538: The jury, did not order the jury to ignore and disregard media reports of the case, and when speaking to newspaper columnist Dorothy Kilgallen shortly before the trial started said, "Well, he's guilty as hell. There's no question about it." Sheppard served ten years of his sentence. Three days after his 1964 release, he married Ariane Tebbenjohanns, a German divorcee who had corresponded with him during his imprisonment. The two had been engaged since January 1963. Tebbenjohanns endured her own bout of controversy shortly after

12788-551: The jury. A century later, Sir Thomas Smith gives a vivid account of the jury trial with examination, cross-examination, all in front of the judge and jury. Shortly after the institution of the jury system, with its attendant seeking of evidence, based on testimony given by witnesses, the problem of maintenance developed. Maintenance was the practice of witnesses coming forward to provide testimony at trial, without being asked to do so. These were frequently well-meaning friends or family members who wanted to participate or help sway

12927-584: The lawsuit brought by his son to clear his father's name. His attorney stated that the DNA testing absolved Sheppard of the murder. After the tests, the body was cremated, and the ashes were interred in a mausoleum at Knollwood Cemetery in Mayfield Heights, Ohio , along with those of his murdered wife, Marilyn. Sheppard's son, Samuel Reese Sheppard, has devoted considerable time and effort towards attempting to clear his father's reputation. In 1999, Alan Davis,

13066-414: The legal system. Political songs of the day evoked the problem: "At Westminster halle (Legis sunt valde scientes); Nevertheless for hem alle (Ibi vincuntur jura potentes...); His owne cause many a man (Nunc judicial et moderatur); Law helpeth noght than (Ergo lex evacuatur)." The strictness with which the courts interpreted the laws against maintenance was an expression of the censure of the common law. But

13205-418: The lord's wife had arranged for his arrest. In such a case, the court simply asked the indictors for more information. They related the whole story; William was acquitted by the court and the lord was committed to gaol. In this case, the court quickly detected the plot and merely needed confirmation. But what of cases where the facts were not clear, or the decision was difficult? It was these that provided

13344-491: The mercy of a jury trial, and forgo their ancient right to trial by ordeal. If they refused a jury trial, there was no option but to keep them in prison until they changed their mind. Under these circumstances, the jury became a new form of ordeal. The judges, in difficult cases ceased to be inquisitors, and simply came to accept the verdict of the jury. The accused was pronounced either "guilty" or "not guilty". This result soon came to be accepted with as little doubt, as much as

13483-424: The method by which a litigant could make his story known in the courts of 13th and 14th century England. Because novel fact patterns frequently emerged, there was a tendency to become creative in the writing of bills of complaint and writs. Against this novelty, was a strong reaction, wanting to keep the number of writs to a minimum. An example is seen from the time of Edward II of England : in 1310–1311 John Soke,

13622-407: The missing evidence must be shown to have relevance to the case. The missing evidence must be material to some issue in the case. Generally, in a civil case, a continuance sought due to absence of evidence will not be granted unless reasonable diligence has been used to procure it. The question of diligence is a matter of fact, addressed to the sound discretion of the court. In some jurisdictions,

13761-466: The murder. In his closing argument, Bailey scathingly dismissed the prosecution's case against Sheppard as "ten pounds of hogwash in a five-pound bag". Unlike the original trial, neither Sheppard nor Susan Hayes took the stand, a strategy that proved to be successful. After deliberating for 12 hours, the jury returned on November 16 with a "not guilty" verdict. The trial was important to Bailey's rise to prominence among American criminal defense lawyers. It

13900-455: The name prerogative writs in the 17th and 18th centuries. Prerogative writs that have survived into modern law are the writ of mandamus and writ of certiorari . The medieval writ of prohibition played an important part in the conflict between the church and state in England. The writ was also used in the courts of admiralty and local courts. It has survived in relative obscurity in United States law. The writ subpoena began to be attached to

14039-437: The night of Saturday, July 3, 1954, Sheppard and Marilyn were entertaining neighbors at their lakefront home (which was eventually demolished in 1993). While they were watching the movie Strange Holiday , Sheppard fell asleep on the daybed in the living room. Marilyn walked the neighbors out. In the early morning hours of July 4, 1954, Marilyn Sheppard was bludgeoned to death in her bed with an unknown instrument. The bedroom

14178-429: The number of writs that could be issued. After the quick abolition of trial by ordeal, the novel approach was to call a jury to consider the case. Some situations were not difficult. As an example, from 1221 there is the case of Thomas de la Hethe. He had been presented by the grand jury with an indictment accusing him of being an associate of a notorious felon named Howe Golightly. Thomas refused to put himself on

14317-492: The original trial, the blood stain patterns were suspected of having been made by a surgical instrument, which F. Lee Bailey disproved during the 1966 retrial. In 2012, William Mason, then Cuyahoga County Prosecutor, designated the Cleveland–Marshall College of Law Library at Cleveland State University as the repository for records and other materials relating to the Sheppard case. The law school has digitized

14456-414: The part of the clerk of the court, under a magistrate shall issue a subpoena to a party requesting it, who shall fill in the blanks before it is served. In the United States, the form of a subpoena may be prescribed by statute of the state, or by the rule of the local court. A subpoena requires the person therein named to appear and attend before a court or magistrate at the time and place, to testify as

14595-421: The person who is sought must be served with a subpoena. The obligation of the individual to attend the court as a witness is enforced by a process of the court, particular process being the subpoena ad testificandum, commonly called the subpoena in the United States. This writ, or form, commands the witness, under penalty, to appear at a trial to give testimony. Thus, the subpoena is the mechanism for compelling

14734-452: The plaintiff had found sureties to satisfy the defendant's damages if he did not prevail in his case. When the defendant appeared, both the plaintiff and his witnesses, and the defendant and any witnesses which he might produce, were examined by the Chancellor. Production of documents could be demanded via subpoena duces tecum . It has been suggested that the writ subpoena was very similar to

14873-513: The plaintiff's attorney who is responsible for the prompt service of the summons and a copy of the complaint. (FRCP 4) The Federal Rule is not concerned with the amenability of the suit, the proper venue of the case, or the court's jurisdiction. The rule provides the means of invoking the in personam jurisdiction of the court in civil actions and will control if other relevant statutes or rules make no special provisions for service of process in other relevant statutes and rules. The nature of Rule 4

15012-461: The public if the decision by the jury was inconclusive, or not in agreement with all the facts, or with emotions of the populace. Trial by ordeal or battle avoided these problems. The result in difficult cases was almost always clear cut. Judges were spared tough decisions. 1215 was also the year of the Magna Carta . Among other things, it limited the Courts of Eyre . These were circuit riding courts of

15151-535: The reason for the summons. Objections in Parliament became loud and frequent. On the one hand, Chancery believed that a wrongdoer might engage in maintenance to prepare the verdict before appearing in court. On the other side, common law courts found it difficult to amend the presented writ, and many cases were lost for want of the correct writ at the beginning of the case. The rolls of the medieval English parliaments contain numerous petitions and acts directed against

15290-405: The requirements of the statute, and denial thereof was not an abuse of the trial court's discretion. If all the requirements of an application for a continuance are met and described in the affidavit submitted to the court, and it is not being done for purposes of delay, it may be an abuse of discretion to deny a continuance. To justify a continuance of a civil case due to the absence of evidence,

15429-399: The result of the hot iron or cold water was accepted a generation earlier. At first, there was no compulsion to deem the actions of a jury with any more rationality than that of the ordeal. The ordeal had shown God's judgment in the matter. The verdict of the jury, while not necessarily congruent with God's will, nonetheless, was inscrutable. Over the course of a generation or so after 1215,

15568-426: The right iliac artery on a 29-year-old patient who bled to death internally. Sheppard resigned from the hospital staff a few months later after wrongful death suits had been filed by the patients' families. Six months before his death, Sheppard married Colleen Strickland. Toward the end of his life, Sheppard was reportedly drinking "as much as two fifths of liquor a day" (1.5 liters). On April 6, 1970, Sheppard

15707-407: The rings in 1958, a few years after the murder, from Sam Sheppard's brother's house, taken from a box marked "Personal Property of Marilyn Sheppard". In subsequent questioning, Eberling admitted his blood was at the crime scene of Marilyn Sheppard. He stated that he cut his finger while washing windows just prior to the murder and bled while on the premises. As part of the investigation, Eberling took

15846-583: The role of accuser, judge, and jury." It appeared that the local media influenced the investigators. On July 21, 1954, the Cleveland Press ran a front-page editorial titled "Do It Now, Dr. Gerber", which called for a public inquest . Hours later, Dr. Samuel Gerber, the coroner investigating the murder, announced that he would hold an inquest the next day. The Cleveland Press ran another front-page editorial titled "Why Isn't Sam Sheppard in Jail?" on July 30, which

15985-548: The severe beating she received to her face and skull. However, criminologist Paul L. Kirk later said that if the beating had broken Mrs. Sheppard's teeth, pieces would have been found inside her mouth, and her lips would have been severely damaged, which was not the case. Sheppard took the stand in his own defense, testifying that he had been sleeping downstairs on a daybed when he awoke to his wife's screams. I think that she cried or screamed my name once or twice, during which time I ran upstairs, thinking that she might be having

16124-552: The time of Edward I of England onward, the function of the jury was slowly being judicially defined. Questions of law were being separated from questions of fact. Arguments centered around questions like: Is a jury conclusion of 11 to 1 enough to convict for a crime? In 1468, Sir John Fortescue gives a picture of jury trials which is congruent with the modern form. The jury had come to be regarded as twelve men who could be of open mind. Witnesses were examined under oath. Parties or their counsel were presenting facts and evidence to

16263-497: The trial was to be held, and the gravity of the charge. The court observed that the status of the victim and the accused in the community are significant, but not necessarily controlling factors in ruling on a venue change request. In the 1982 California case of Odle v. Superior Court the California Supreme Court did not find there had been any reasonable likelihood of prejudice from pretrial publicity. The usual approach

16402-502: The verdict of the trial. The Statute of Westminster I (1275) had fifty-one chapters. One of these dealt with the issue of maintenance. There are numerous references indicating that there had developed a class of professional testifiers, quite apart from lawyers and advocates, who could be purchased to testify in jury trials. There was an effort to end this practice by providing punishment to whole categories of professional testifiers, such as serjeant-pleaders . Sir John Fortescue

16541-524: The writ subpoena is closely associated with the invention of due process , which slowly replaced trial by ordeal . The institution of the jury trial necessitated the hearing of evidence. This, in turn led to the need for a reliable method of compelling witnesses to appear and give testimony. The writ subpoena became the standard method of compelling witnesses. Following the Fourth Lateran Council held in 1215 (overseen by Pope Innocent III who

16680-460: Was a reasonable likelihood that the prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. This doctrine has been annunciated in other cases. There is reason to believe that courts do not generally grant a change of venue upon a reasonable likelihood of prejudice from pre-trial publicity. A showing of actual prejudice usually

16819-532: Was a reluctance to accept juries on a large scale by many of the English courts, and the public at large. People were used to a system where decisions were made by the outcome of a duel or an ordeal. The jury system had made a sporadic appearance in England from time to time, including, but not limited to Danelaw and the Saxons . Even so, juries had never been predominant. A jury remained a local and obscure phenomenon. It

16958-453: Was apparently knocked out. The next thing I knew, I was gathering my senses while coming to a sitting position next to the bed, my feet toward the hallway. ... I looked at my wife, I believe I took her pulse and felt that she was gone. I believe that I thereafter instinctively or subconsciously ran into my youngster's room next door and somehow determined that he was all right, I am not sure how I determined this. After that, I thought that I heard

17097-481: Was associated with women who had suspicious deaths and he was convicted of murdering Ethel May Durkin, a wealthy, elderly widow who died without any immediate family. Durkin's 1984 murder in Lakewood, Ohio , was uncovered when a court-appointed review of the woman's estate revealed that Eberling, Durkin's guardian and executor, had failed to execute her final wishes, which included stipulations on her burial. Durkin's body

17236-460: Was at the zenith of Papal power), and based on a Latin interpretation of natural moral law, all forms of trial by ordeal or trial by battle were outlawed in Church courts. Of greater significance to English law was the fact that the clergy were banned from blessing trial by ordeal in the civil and common law courts. This had the effect of bringing the practice of trial by ordeal to an abrupt halt in England. Trial by battle, which later evolved into

17375-569: Was class president for three years. Sheppard met his future wife, Marilyn Reese, while in high school. Although several small Ohio colleges offered him athletic scholarships, Sheppard chose to follow the lead of his father and older brothers and pursued a career in osteopathic medicine . He enrolled at Hanover College in Indiana to study pre-osteopathic medical courses, then took supplementary courses at The Case Institute of Technology in Cleveland during

17514-427: Was covered with blood spatter and drops of blood were found on floors throughout the house. Some items from the house, including Sam Sheppard's wristwatch, keychain and key, and fraternity ring, appeared to have been stolen. They were later found in a canvas bag in shrubbery behind the house. According to Sheppard, he was sleeping soundly on a daybed when he heard the cries from his wife. He ran upstairs where he saw

17653-500: Was during this trial that Paul Kirk presented the blood spatter evidence he collected in Sheppard's home in 1955 that suggested that the murderer was left-handed (Sheppard was right-handed), which proved crucial to his acquittal. Three weeks after the trial, Sheppard appeared as a guest on the December 7 episode of The Tonight Show Starring Johnny Carson . After his acquittal, Sheppard worked with ghostwriter Bill Levy to write

17792-476: Was exhumed and additional injuries were discovered in the autopsy that did not match Eberling's previous claims of in-house accidents, including a fall down a staircase in her home. In subsequent legal action, both Eberling and his partner, Obie Henderson, were found guilty in Durkin's death. Coincidentally, both of Durkin's sisters, Myrtle Fray and Sarah Belle Farrow, had died under suspicious circumstances as well. Fray

17931-528: Was found dead in his home in Columbus, Ohio . Early reports indicated that Sheppard died of liver failure . The official cause of death was Wernicke encephalopathy (a type of brain damage associated with advanced alcoholism). He was buried in Forest Lawn Memorial Gardens in Columbus, Ohio . Sheppard's body remained buried until September 1997 when he was exhumed for DNA testing as part of

18070-440: Was generally believed that God's will was revealed in the outcome of the battle or ordeal. The fact that the judge would view the result of the ordeal and declare "God's decision" had little bearing on the validity of the procedure. The jury was something else. It did not represent God and its twelve or more members were likely to fail to deliver God's solution. Cases which had no resolution, just as today, could easily be mocked by

18209-426: Was ignored. In 1363, the command to Chancery was repeated by legislature. There was a proclamation that there be no original writs. These pronouncements were ineffective and ignored. More legislation followed in 1389 and 1394. In 1415, the writ subpoena was denounced by name, as a subtlety invented by John Waltham . Another legislative act in 1421 called the subpoena not in accordance with due process. By this time,

18348-520: Was killed after being "savagely" beaten about the head and face and then strangled; Farrow died following a fall down the basement steps in the home she shared with Durkin in 1970, a fall in which she broke both legs and both arms. Although Eberling denied any criminal involvement in the murder of Marilyn Sheppard, Kathy Wagner Dyal, who worked alongside Eberling in caring for Ethel May Durkin, also testified that Eberling had confessed to her in 1983. A fellow convict also reported that Eberling confessed to

18487-412: Was not a crime in those days. Maintenance, along with champerty , appearing armed before a justice of the law, giving of liveries , forgery of deeds, and other corrupting influences were banned under Edward III of England . An example of the corruption is seen in the 1445 case of Janycoght de Gales who had been committed to prison until he paid the sum of 388 pounds which was owed to Robert Shirbourne,

18626-418: Was not liable to fail for defects in the form of a bill, provided the bill told an intelligible and consistent story. As a matter of procedure, the judge would question the plaintiff in order to bring out the cause of the complaint. Once this was accomplished, the subsequent proceeding under the bill would be carried out as if there was a legitimate writ. By the 15th century, the bill would typically pray that

18765-404: Was of the opinion that anyone who came forward to volunteer to give testimony in a case should be tried for maintenance, since he should have waited to be issued a writ of subpoena. Sir Thomas Smith commented that the jury system in the time of Elizabeth could not exist without the ability to compel testimony using the writ subpoena. At this time, maintenance was viewed as the primary evil of

18904-402: Was permitted to attend both funerals but was required to wear handcuffs . On February 13, 1963, while F. Lee Bailey was pursuing the appeals process, Sheppard's former father-in-law, Thomas S. Reese, died by suicide in an East Cleveland, Ohio , motel. Reese's wife had died in 1929 when their daughter Marilyn was in grade school. In 1959, Sheppard voluntarily took part in cancer studies by

19043-399: Was presence of blood from a third person, other than Marilyn and Dr. Sam Sheppard. With regard to tying the blood to Eberling, the DNA analysis that was allowed to be admitted to the trial was inconclusive. A plaintiff DNA expert was 90% confident that one of the blood spots belonged to Richard Eberling but, according to the rules of the court, this was not admissible. The defense argued that

19182-399: Was sequestered. The prosecutor presented essentially the same case as was presented twelve years earlier. Bailey aggressively sought to discredit each prosecution witness during cross-examination. When Coroner Samuel Gerber testified about a murder weapon that he described as a "surgical weapon", Bailey led Gerber to admit that they never found a murder weapon and had nothing to tie Sheppard to

19321-429: Was titled in later editions, "Quit Stalling and Bring Him In!" That night, Sheppard was arrested for a police interrogation. The local media ran salacious front-page stories inflammatory to Sheppard that contained no supporting facts or were later disproved. During the trial, a popular radio show broadcast a report about a New York City woman who claimed to be his mistress and the mother of his illegitimate child. Since

#164835