Dying Declaration

Anyone who has ever paid the least bit of attention to murder in America should be familiar with the case of Dr. Sam Sheppard, the successful Ohio neurosurgeon who was convicted of beating his wife to death in their suburban Cleveland home in 1954.
 
Sheppard, who always maintained his innocence, spent 10 years in prison before the U.S. Supreme Court reversed his conviction and ordered a new trial. With F. Lee Bailey conducting his defense, Sheppard was found not guilty.
 
Forgotten to history and much less known to crime buffs is an earlier case involving a Dr. Shepard who was convicted of murdering his wife and ultimately exonerated by the U.S. Supreme Court.
 
Dr. Charles Shepard, a major in the United States Army Medical Corps stationed at Fort Riley, Kansas, was convicted of murdering his wife, Zenana. Almost all of the evidence against him was circumstantial, except for a brief exchange between his wife and the nurse who was caring for her.
 
Dr. Shepard and his wife were married in 1916 and during the intervening years between their wedding and Zenana’s death, lived at various military posts around the country, ending up at Fort Riley.
 
In 1928, Shepard left his wife at Fort Riley and traveled to Brooks Field near San Antonio, Texas, to take a course as a flight surgeon.
 
n.b., Sadly, Brooks Field, a major Air Force pilot training base for much of the 20th Century was a casualty of the 2011 round of base closings. Hanger 9, which had been restored to its original Great War design and was home to the U.S. Air Force Museum of Aerospace Medicine, is no longer accessible to the public. The museum itself was decommissioned.
 
At Brooks, away from his wife for several weeks, he made the acquaintance of Grace Brandon and began a whirlwind affair. According to court testimony at his trial, Shepard and Grace went out to dinner, to shows, and dances. Shepard told Grace that “he and his wife were not congenial, but kept up appearances for the sake of his rank and reputation.”
 
Shepard showered his lover with gifts of candy and even a canary. Before leaving Brooks, he made her the beneficiary of his $30,000 life insurance policy.
 
Zenana was not a happy woman, friends testified, and more than one said on the stand that she frequently talked of a lack of will to live and the possibility of suicide. These grim discussions helped lead a federal jury to convict the doctor of his wife’s murder (The crime was committed on military property and Shepard was an officer, but it was treated as a civilian matter. A court martial would take care of Shepard’s career, conviction or not).
 
Although Zenana was a physically healthy woman, Shepard told a colleague that he felt she was an alcoholic. The evidence at his trial tends to support this diagnosis. He also said she had a bad heart and suffered from a chronic problem with her appendix. There was no evidence introduced at Shepard’s trial that indicated either of these allegations to be true.
 
Shepard returned from training in December 1928 and shortly after obtained calomel (a tablet of mercury salts) from the base pharmacist. Three months later, he obtained additional tablets, and in April 1929, he obtained even more chloride of mercury, this time dissolved in eight ounces of alcohol. As a physician and occasionally as officer of the day, Shepard had access to the pharmacy, so he could also have obtained additional calomel without anyone’s knowledge — or even if someone saw him — without suspicion as it was a staple in any physician’s bag at the time.
 
Zenana went to Junction City, Kansas on May 20, 1929 and when she returned, Shepard fixed her a ginger ale and rye highball. Later that night, a friend of Zenana’s called and Shepard said that his wife was sick and that a doctor was treating her. Shepard said his wife was “desperately ill” and had gotten some bad liquor — This was during Prohibition and there was little quality control over the bathtub booze most people got.
 
Shepard summoned a psychiatrist and a nurse to look after his wife. The nurse, Clara Brown, from Topeka arrived that night and Shepard told her that Zenana had suffered a nervous breakdown.
 
Brown found her patient delirious and vomiting, and her eyes were dilated. Shepard administered pills telling Brown were bromo seltzer and phenobarbital.
 
The next day, her condition worsened and she began hemorrhaging. Observing his wife, Shepard told a friend of his wife’s that he did not think Zenana would recover. In addition to the bleeding, Zenana’s mouth was “sore and foul.” A dentist was summoned and he prescribed more calomel (At the time, mercury products were also used to help teething infants). One of the signs of mercury poisoning is foul-smelling breath.
 
Two days after Zenana took to her bed, she had a conversation with Nurse Brown. Zenana asked Brown to retrieve a bottle of whiskey from a closet, which the woman then identified as the bottle from which she drank before becoming ill. She asked the nurse if there was enough liquor left to test for traces of poison because in her opinion, the liquor smelled and tasted strange. Then she made the statement that would eventually convict her husband.
 
“Dr. Shepard has poisoned me,” Zenana told her nurse.
 
Zenana continued to suffer, but gradually began to improve. For two weeks her condition remained grave, but according to testimony at Dr. Shepard’s trial, there was no expectation by either Zenana or her physicians that she would not recover.
 
However, in mid-June, Zenana’s health took a turn for the worse and the initial symptoms she presented on the night she took ill returned with gusto. She once again began hemorrhaging and on June 15, 1929, she died.
 
Shepard did little to help himself in the early days after his wife’s death. He vehemently opposed an autopsy and only acquiesced when ordered by a superior officer in the Medical Corps. The autopsy revealed the presence of mercury with evidence that it had been administered in small doses.
 
After the body was released to him, Shepard had his wife’s remains cremated and was given bereavement leave to take the ashes to Los Angeles. He contacted Grace Brandon when he left Los Angeles to let her know of his wife’s death. Then, returning to Fort Riley, he requested and received additional leave to dispose, so he said, of property in Colorado. Instead, he went to San Antonio and proposed a “secret marriage” to Grace Brandon on June 30. When he came back to Fort Riley, he asked for a transfer to San Antonio.
 
Then he and Grace fixed August 30, 1929 as their public wedding date.
 
Based on the presence of mercury in the corpse, her statement to her nurse and the circumstantial evidence of Shepard’s infidelity, he was charged with murder, despite the fact that calomel had been administered by the other attending physician, which would still be present as mercury in her body.
 
At his trial, the prosecution called nurse Clara Brown to the stand and asked her to recount her conversation of May 22 with Zenana. It was the government’s plan to have the statement considered a dying declaration, which would exempt it from the hearsay rule.
 
Hearsay is, according to Black’s Law Dictionary, “A term applied to that species of testimony given by a witness who relates, not what he knows personally, but what others have told him…” The federal rules of evidence state it a little less clearly: A statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.
 
A dying declaration is an exception to the hearsay rule and somewhat related to the best evidence rule — because obviously the person making a dying declaration cannot be called in any court on this plane of existence.
 
The exchange between the court and the attorneys demonstrates how vigorously Shepard’s counsel tried to keep the testimony out.

Q. Did she say anything about how it tasted?
Mr. Kagey: Objected to for the further reason that it is hearsay, not rebuttal, a conversation not shown to have been made in the presence of the defendant.
The Court: You may answer.
Mr. Kagey: Except.
Witness: She said that she was being poisoned.
Mr. Brewster: What did she say? Give her words?
Mr. Kagey: All right; we object to this, also, as incompetent, irrelevant and immaterial, hearsay, not made in the presence of the defendant, not rebuttal.
The Court: You may answer.
Mr. Kagey: Except.
Witness: She said: “Dr. Shepard has poisoned me.”

Upon reflection, the prosecution took the unusual step of reconsidering its line of questioning and asked the court to strike it from the record because it did not consider Zenana’s words to be a dying declaration. Prosecutors were worried that to leave the testimony in would result in the conviction being overturned on appeal.
 
The statements of a person who is dying are treated differently than any other statements, provided certain conditions are met. To make out a dying declaration the declarant must have spoken without hope of recovery and in the shadow of impending death, and this state of mind must be exhibited in the evidence and not left to conjecture. People who make dying declarations are given the benefit of the doubt as to the veracity of their statements.
 
However, a dying declaration cannot be opinion of the type Zenana made.
 
“Homicide may not be imputed to a defendant on the basis of mere suspicions, though they are the suspicions of the dying. To let the declaration in, the inference must be permissible that there was knowledge or the opportunity for knowledge as to the acts that are declared,” wrote Justice Benjamin Cardozo in Shepard’s Supreme Court appeal.
 
Regardless, in surrebuttal to the defense’s claim that Zenana was suicidal and the offer of the possibility of suicide as an alternative to murder, the prosecution recalled Nurse Brown to the stand to repeat the conversation. It did so, not to offer a dying declaration of fact, but to demonstrate Zenana’s will to live.
 
Shepard’s attorney again strongly objected to the testimony, but it was again allowed.
 
The jury convicted Shepard of murder and he was sentenced to life in prison.
 
Upon appeal to the 10th Circuit Court of Appeals, Shepard’s conviction was upheld. He had been in prison approximately 4 years.
 
“We are convinced the declarations were admissible to rebut the theory of suicide, advanced by the defense,” wrote the majority. “The statements imputed to Mrs. Shepard that she contemplated suicide and did not expect or want to get well, reflected the state of her mind and tended to show the poison was self-administered. To rebut that testimony, the declarations that her husband had poisoned her and she believed she had been poisoned were clearly competent as tending to show a different state of mind.”
 
Shepard took his case to the U.S. Supreme Court, and the decision in Shepard v. United States remains the precedent and oft-quoted reference on dying declarations.
 
Justice Cardozo, on behalf of the court, rejected the government’s argument that the claim “Dr. Shepard has poisoned me” was offered not as a dying declaration, but to rebut the claim that Zenana was possibly suicidal. The testimony was a de facto dying declaration that did not withstand the scrutiny of the rules for admittance and tainted the case in the eyes of the jury, Cardozo said.
 
“The testimony was neither offered nor received for the strained and narrow purpose now suggested as legitimate,” he wrote. “They concede in all candor that Mrs. Shepard’s accusation of her husband, when it was finally let in, was received upon the footing of a dying declaration, and not merely as indicative of the persistence of a will to live. Beyond question the jury considered it for the broader purpose, as the court intended that they should.”
 
The government “did not use the declarations by Mrs. Shepard to prove her present thoughts and feelings, or even her thoughts and feelings in times past. It used the declarations as proof of an act committed by some one else, as evidence that she was dying of poison given by her husband. This fact, if fact it was, the Government was free to prove, but not by hearsay declarations.”
 
Shepard’s conviction was overturned and he was freed in November 1933.