OACDL - ArticlesBlows Against the Empire:THE GRIBBEN TRIALby David L. DoughtenIn August of 1995, I was appointed along with Jeff Jakmidesof Alliance, Ohio, to represent Susan Gribben. Ms. Gribben hadbeen charged with killing her four young children with priorcalculation and design. I had grown up in New Philadelphia. Iwas to return home to try one of the most extraordinary cases ofmy career.According to the indictment, Susan had taken an accelerant,thought to be gasoline, and poured it throughout the floor of thekitchen of her rented ramshackle home. She lit it, waited forthe fire to spread, then jumped out of her second floor window tosafety. She allegedly did this for the purpose of burning herkids to death. The specifications were multiple killing underA(5) and felony murder under A(7).Via long distance, (I was on vacation with the family) amotion to preserve the fire scene was prepared. It seems thatthe landlord, for some unimaginable reason, (he wrote with tongueplanted firmly in cheek), was seeking a court order to tear downthe house. Why should it remain standing? He was losing money.He could plow it under and rent it to a trailer owner.Fortunately, Judge Roger Lile, who presided over the case, wasactually interested in justice. The house stands, albeittottering, to this day in Barnhill, Ohio.After reading the local newspaper, it was crystal clear.Ms. Gribben was guilty. We would be miracle workers if we couldobtain a plea. Less than two weeks before the Barnhill fire,Susan Smith had been sentenced in South Carolina. The prosecutorin Tucarawas County was running for re-election in the spring.Sensing a media opportunity, Ms. Gribben was indicted capitallyfor the prior calculation and design killing of her fourchildren. These children’s ages ran from one to three years old.The coldness of the killing would chill even the mostexperienced trial litigator. According to the newspaper and theprosecutor, the events leading up to the fire proved herunquestionable guilt. However, the facts as reported by thenewspaper were, surprise, surprise, completely incorrect. It waslearned that the facts were supplied to the reporter by aninvestigating officer of the sheriff's department.To understand the full complexity of the case, it isnecessary to delve into the background of the defendant. Timeand space require a cursory social history. Remember that thebackground that follows was un-contradicted.The Gribben case was an unusual case to try in that thestate's motive, for the most part, was the defendant'smitigation. The state believed that Ms. Gribben killed herchildren because her life was so horrific. The state's theorywas somewhat schizophrenic. First, a la Susan Smith, she intendedto commit suicide with the kids and her survival instinctovercame her. The second, and more improbable theory, was thatshe wanted to run away with her natural father and live with himas his lover. This was the same man that had allegedly molestedher as an infant and later convicted of a sexual offense. It isthis second theory that the state relied upon during trial.But I digress. First a micro summary of her social history.Defendant's BackgroundSusan Gribben had been born to an alcoholic mother and afather who became a convicted sex offender. She had twosiblings, a brother and a sister. Susan's aunt reported that Susan’smother would never wash the children or their clothes. In fact,after the children's clothing became so filthy that even themother could not bear the smell, the clothes were burned. Newclothing was never bought. The clothes the children wore camefrom the generosity of the extended family and strangers.At the age of six, family services interceded. Allegationsof sexual molestation got them involved. When social workersarrived at the home, Susan weighed thirty-nine pounds. All thechildren were taken from the home. She and her sibs were placedin foster homes. Eventually they were adopted by one of theirfoster parents.The conditions did not greatly improve. Both girls weresubjected to inappropriate touching, although not actualintercourse. Susan, who was of much greater intelligence thanthe rest of her family, began to run away from home. She wasadjudicated unruly, but was returned to the home even though shereported the touching incidents. Exasperated, she attemptedsuicide at age sixteen.At the age of seventeen she ran away from home for good.She moved to New Philadelphia. She intended to finish highschool but became pregnant. She married a man ten years hersenior that same year. Her first born were twin girls. A yearlater a son was born, Another year later a second son was born,In between the births, she endured a hell that no person shouldbe forced to endure.Her husband, Michael Gribben, was discharged from the armyunder less than honorable conditions. He had a child with awoman that he did not marry or support. He had two additionalchildren from his first marriage to a second woman. His firstwife spent considerable time in a woman's shelter. He is payingsupport for these two children. Then there were the fourchildren with Susan.To say that he had a controlling personality is anunderstatement. Susan could not drive, Her husband refused toallow her to obtain a license. She was not allowed to work.Their rented Barnhill house was extremely isolated. They livedat the end of the street in a very small and very poor community. For entertainment, their neighbors used to take lawn chairs out to watch Mikebeat Susan. One neighbor testified that he would watch Mike have his hands around her throat in an apparent attempt to strangle her. The police were never called as this was apparently normal activity for the Gribben household and a source of entertainment for the neighborhood.Susan's husband was capable of other intimidating acts ofviolence. When she returned late from her visit to her father'shouse, her husband pointed out the blood from two of the kid'sdogs. He had killed them with his bare hands as punishment forher staying away too long. To train the dogs (which he wouldlater kill) to hunt, he tied a live rabbit to the back of a threewheeler and had the dogs chase it until the rabbit died.Susan's husband had twice been arrested for indecentexposure for revealing his private parts to teenage girls at thehigh school and at an ice cream store. He went to trial for a sexoffense charge against children. He was acquitted after Susantestified on his behalf. Susan revealed that she lied underthreat from her husband that she would lose her children if hewere convicted. She feels great guilt that she was part of thatacquittal.In the months prior to the fire, Susan was reacquainted withher biological father. One of her twins, Samantha, was afflictedwith the webbing of her digits. Susan took Samantha to aspecialist in Akron to assist in fixing the problem. Susanstarted to search for her parents for two reasons. She thoughtthat finding her biological father would help in diagnosing herdaughter's problem. She also felt a strong need to have herchildren and herself be part of a family unit.Her biological father did not like the situation that he foundhis daughter, now 23 years old, living in. Although heoriginally got along well with her husband, the relationshipquickly deteriorated. Upon viewing the battering first hand, hetold Susan to get out. He offered to help her leave. He gaveSusan an ultimatum: either she would have to leave Mike or herfather would cease his relationship with her.The beatings became more frequent as the date of the fireapproached. She wrote both her father and adoptiveparents often as the writings became an outlet for herfrustrations. About six weeks before the fire she wrote hernatural father and clearly mentioned that she felt suicidal andthat she desperately needed help.She did receive help. About a year prior to the fire Susansought out help from a family counseling agency for raising her children. Fortunately, her counselor took a great interest inSusan's case. Susan did quite well in taking instruction andcounseling. She was one of her counselor's better clients. Thekids by all accounts were healthy and doing well.However, when there appeared to be a relapse in thechildren's behavior, the counselor took a closer look. When thebeatings were revealed, action was taken. Susan began to stay inshelters with the kids. Susan finally managed to call thepolice on her husband.On one occasion in the months prior to the fire, the policearrested Susan's husband for domestic violence. Mike had afixation with firearms. A search of the home uncoveredan illegal firearm. The husband was charged with domesticviolence and a felony dangerous ordnance charge. His arrest andsubsequent time spent in jail added to the volatility of thesituation. Scared, Susan dropped the domestic violence charge.The state persisted in the felony charge. The charge was droppedafter the trial.Finally, there was the sex. Susan and Mike had themselvesphotographed nude and placed an ad in an Ohio swinger'spublication. They had a male partner join them on numerousoccasions. Susan and this male began to write letters to eachother that would make Penthouse letters seem tame by comparison.The state believed that Mike forced her to engage in hisfantasies, This was just one more degrading incident that Susanwas forced to endure. A defense objection to this evidence wasoverruled.Day Before the FireThe day before the fire was generally uneventful. Susan'sadoptive father stopped to see her in the morning. She calledvarious people throughout the day. The problems started thatevening.Mike had entered a "tough man" competition. Susan did notapprove. She was worried that he would get hurt. She was notinvited to watch. A fight ensued, The neighbors got their show.Mike started to call his father, as Susan complained he alwaysdid. To stop the call, Susan ran out of the house and pulled thetelephone wires out of the house. Her father-in-law drove overto see them. He knew that there was trouble as his call was cutoff.When he arrived, he told both Susan and Mike that they hadbetter get their act together or they might lose their kids.According to both Mike and Susan, they made up, as they alwaysdid, and went to bed in relative peace.The FireThe morning of August 17, 1995 was hot and muggy. Accordingto Mike's testimony, he awoke late that morning to go to work.He was a mechanic. He was to be at work at 8:00 a.m. and hadoverslept, as he often did. He asked Susan where he might find aT-shirt. She told him to look in the dryer. She also told himto bring home some milk after work. He left for work about 8:10a.m. When he left, Susan was asleep, with her head at the footof the bed facing the fan in the window.The fire started in the next fifteen minutes. Theramshackle building was, on all accounts, a fire trap. Numerousinvestigators called the house one of the worst fire traps everinvestigated. The fire started in the kitchen, on the firstfloor. Susan slept in the middle room upstairs. The children'sbedrooms flanked the parent's room.The fire was quick and lethal. The fumes from the burningmaterial were so noxious that the deaths probably occurred withinminutes of the start of the fire. The children did not have achance. Susan saved herself by jumping out of her window. Thequestion on everyone's mind became, "Why didn’t she save thechildren?" or rather "Why didn't she die with the children?"Newspaper AccountAccording to the newspaper, three of Susan’s children werefound piled up against each other just outside where the doorwould have been in the hall, A diagram appeared in the paperdepicting the location of the children. She was less than tenfeet away. Nothing prevented her from rescuing the kids. Thefourth child, the youngest, died in his crib in the next room.The community was outraged. How could a mother not die inthe fire with her children? There could only be one answer, Shemust have wanted them to die.The state argued that after her husband went to work, Susanjumped out of bed and ran downstairs. She ran outside andgrabbed a gasoline can. She poured gasoline outside of the firstfloor bathroom window and on the porch. She also threw gasoline,about an additional gallon, on the kitchen floor. She then wentthrough the bathroom, lit a match or a piece of paper and threwit out the window. This lit the gas on the ground, which in turnlit the gas on the porch, which burned through the door to thehouse and quickly spread up the stairs to the upstairs bedroom.The crime dog Pyra, no relation to McGruff, alerted to thegasoline in the kitchen. Pour patterns were found in thekitchen.In the meantime, Susan had run up the stairs and closed thedoor on her children who were trying to get to her room forsafety. She cold-bloodedly left them out in the hall, waiteduntil the crying stopped, reopened the door, went to the window,cried for help and eventually jumped to safety.The state believed that additional factors pointed to herguilt. She had been in her pajamas when she jumped to theground. She asked a neighbor for a change of clothes immediatelyafter jumping out the window, apparently to hide the gasolinethat had spilled on them. She had very little soot on herpajamas or body. Some people did not think that she actedappropriately depressed in the days after the deaths.Susan's biological father inexplicably told the sheriff'sinvestigators that he had been having sex with Susan since theirre-acquaintance. Most important, Susan herself had lied in herstatement to the police about her activities on the morning ofthe fire.Trial TestimonyThe actual trial testimony, as noted earlier, was fardifferent than had been related to the public by the lawenforcement officials and the newspaper. We were aided immenselyby the judge, who actually thought that due process demanded thatwe be entitled to experts, We obtained an arson expert, RobertTaylor, a psychologist, James Eisenberg, a mitigation expert,Lisa Roth and an investigator, Mike Durkin. Finally, we obtainedProfessor Emeritus E. E. Smith of Ohio State University. Dr.Smith believed so strongly that Susan was innocent that hevolunteered his time. Dr. Smith, among other things drew acomputer model of the building, including the building materials,The state did not bother to cross-examine him. Again I digress.With the help of the experts, who were actually assured ofbeing paid for their work, we were able to establish thefollowing. On the morning of the fire, Susan had fallen asleepafter her husband left for work. Her face was toward the windowfan. This saved her life. The ceiling tiles in the kitchen andelsewhere burned a toxic fume. Dr. Smith established that thechildren were probably dead in less than two minutes from thestart of the fire. The children were dead before Susan awoke.The noise of the fan kept her asleep until the electricityfailed. The fan itself blew fresh air into the room and kept thepoisonous gas and fire headed in another direction.Susan awoke and could see only dark smoke and feel greatheat. Confused, she went to the window and screamed for help.Neighbors told her to jump. She refused to jump until she foundher kids. Not until neighbors told her that her kids werealready dead and that someone else would go in after them did shejump. One particularly enlightened man said that he had calledher "everything but a white lady" to convince her to saveherself. She cracked a vertebra in the fall.After jumping from her window, she ran to her neighbor’s tocall 911. Her plaintive screams can be heard in a hardlydiscernible voice, "My babies are dead, my babies are dead!"She then changed out of her thin nylon shorty pajamas into jeansand a flannel shirt for protection from the fire. She proceededto run back to her house and try to get in to rescue her kids,Numerous people stopped her. She continued to scream at theneighbors, asking them why they had not saved her kids like theyhad promised.The first firefighters in the house could not find thechildren. They were discovered in the hallway leading to thedoor of their mother's bedroom. Not one of the three olderchildren even made it to the door opening. It would have beenimpossible for Susan to have seen them. The diagram in thenewspaper was completely incorrect. Fortunately, a photographpreserved that all-important evidence.The door to the parent's room had never been shut. Earlyinvestigators to the house found that it was impossible to shutthe door. The room was very small. The door was open againstthe wall. The double bed would had to have been moved to closethe door, and moved back when the door was reopened.More important, Susan's husband testified that a huge pileof clothes was piled against the door. If the door had beenclosed during the fire, the clothes would necessarily have had tohave been moved. The entire outside of the door would have beenblackened. However, the area of the door where the clothes werepiled was virtually unmarked. This protected area proved thatthe door had never been directly exposed to the fire. Finally,the burn patterns on the door and the door jam were consistentwith the door being opened the entire duration of the fire.No trace of gasoline was found anywhere in the house or onSusan's clothing. All experts, both state and defense, testifiedthat gasoline poured in such large quantities would have beendiscovered in the flooring material which was indoor-outdoor carpeting.Nothing was found on her clothing. State witnesses conceded thatthe fumes alone would have been easily traced.Susan's husband worked in a garage. He took his shoes offmany nights and left them in the corner of the kitchen. You areonly allowed one guess as to where the dog, Pyra, alerted. Thedog's trainer conceded that the dog would have alerted to anypetroleum product.The so-called pour patterns were nothing more than burningcarpet that resulted from liquid falldown from the ceiling. Thepoly-propylene carpet itself burned as a liquid.Susan's biological father admitted that he lied to theprosecutor about their relationship. Her letters to him wereclearly that of a daughter trying to find her father. In oneparticularly poignant card, Susan sent him an old report card.She wrote that she had always wanted to show her dad a reportcard and but had not previously had the chance. Counselors testified that Susan had been coming to sessionsregularly. In their opinion, Susan loved her children. Herchildren meant everything to her. She took great pride in herability to care for her children in the face of great adversity.Susan's adoptive mother spoke of a letter written only weeksbefore the fire expressing her love for her children and askingin wonderment how her older sister could have given up her kidsto foster homes.Dr. Eisenberg testified that Susan was indeed a batteredwoman. The fact that women suffering from this syndrome almostnever killed their children and, in fact, were moved to violencemost often to protect, rather than harm, their children did nothurt the case. Susan, by everyone's account, tried very hard toraise her children, There is no evidence that she had ever evenspanked her children. Her children were punished by the use of"time-out."Dr. Eisenberg also noted that Susan was diagnosedimmediately after the fire as suffering from post-traumaticstress. That diagnosis held true during the trial itself. Susanalso suffered from survivor guilt, which perhaps partiallyexplained the statement to the sheriff's deputy.Incriminating StatementWhen Susan was first questioned, without an attorney, aboutnot getting her children out safely, the deputy told her thatthey were all piled up against her door. She thought that shewas being charged with simply failing to save her kids. She toldthe deputy that she did attempt to save them. She said that shewas up with the children after her husband left. She wentdownstairs and made them toast. She went upstairs and watchedBarney with the kids. She fell back asleep. When she awokeagain, she heard the kids calling to her. She went out into thehall to find them, but she could not.The deputy confronted her about her story. He told her,correctly, that all this could not have been accomplished in tenminutes. More important, she would have died if she even setfoot out of her room, Susan admitted that she had lied beforeasking for an attorney.Not knowing, when she told the deputy the story, that she wasbeing charged with setting the fire, she had placed herselfdownstairs at the exact time the fire started.Her husband called her while she was staying at a shelterprior to her arrest. He taped the conversation. He wasattempting to trap her, as he gave the tape to the prosecutor. Heasked her what had happened. She admitted that she did not wakeup until the fan stopped. She admitted that she could not makean attempt to save the kids because of the heat and smoke. Shealso cried in heart-wrenching fashion that she could never killher own children. They were everything to her.What Susan believed to be a private wife-to-husband confession about not being able to save her children ironically may have saved her. We were able to have the jury hear her testimony without subjecting her to cross-examination about her sexual habits.DeliberationAs the testimony of each witness seemed to help us ratherthan hurt us, we began to get nervous. The testimony was comingin almost as we had scripted. When the jury retired todeliberate, we agreed that we could not have placed a better casebefore the jury. The evidence had convinced me more than everthat we had an innocent client. I could not imagine a juryconvicting her.Yet, the community had seemingly made up its mind before thetrial had begun. A number of "friends" asked me how I couldrepresent a child killer. The number of jurors dismissed forcause had been staggering. A couple of prospective jurors openlystated that they wanted to kill her themselves. Some tried tosneak onto the jury so that they could ensure her death. Otherprospective jurors convicted her of not dying with the kids. Wecould not know how many of these mindsets remained on the jury.The local newspaper had also made up its mind. While allthe media members and court watchers told us that they wereconvinced that she was not guilty, the local paper refused toprint any of the exculpatory evidence. To this day, thecommunity does not know what the jury knew.The jury was out almost four days. Susan was nearlycatatonic from nervousness. Here was a woman who had nevercaught a break in her life. She could not imagine receiving onenow. She would rather die than to ever admit to killing her ownchildren, a feeling that I understood completely. All she askedwas that if she was convicted, that she be allowed to take aswing at the prosecutor. She was no shrinking violet. I am surethat she had honed her skills in her fights with her husband.Thankfully, I did not have to make that decision; the jury foundher not guilty of all counts.Obviously there were many more nuances to this case than canbe mentioned here. It had everything, including allegations ofmurder, incest, homosexuality, menage-a-trois, abandonment,affairs, battering, stalking, surreptitious taping and everythingelse conceivable. I wish that I could say that we were able togain an acquittal because of the expertise of Mr. Jakmides andmyself. The real reason for the acquittal is that we had a judgewho, in a very high publicity case, allowed us to question thejury fully on publicity and the death penalty in voir dire,allowed us to hire necessary experts and investigators, read ourmotions and ruled accordingly. Judge Lile was not afraid to askfor assistance on areas of law or procedure that were unfamiliarto him. In short, he ruled with a motivation to find justicerather than save the commissioner's budget.In the prosecutor's haste to capitalize on the Susan Smithcase, Susan Gribben was indicted with only one week ofinvestigation. The state did not even have the lab reports(which were negative) when the case was presented to the grandjury. Pyra the dog had alerted. What else could possibly beneeded. In some form of poetic justice, the prosecutor lost theprimary.How did the fire start? It probably will never be known.The fire scene was not properly preserved. We were unable totake out items for testing until nearly six months after thefire. It could have been arson. The landlord? The husband?The prosecutor had failed to learn that the husband had beentrained in delayed ignitions in the service. A neighbor thinkingno one was at home and wanting to rid the neighborhood of theGribbens? A spark from a burn barrel? Spontaneous combustion?Although the answer could be one or none of the above, atleast this state has not made the grave error of having aninnocent woman executed. Any judge believing that defensecounsels' requests for funding are a waste of taxpayer moneyshould read the transcript of this trial.It is unfortunate that appellate courts are unable to reviewtrials that are adequately funded. Had the judge refused topreserve the scene or not funded us to hire experts, we wouldhave been left with the impossible burden of proving theprejudice on direct appeal or postconviction procedures. With noevidence to review, this burden could not have been met.David L. Doughten is a partner in the firm of Doughten andSmith in Cleveland, Ohio. He is a 1977 graduate of Ohio WesleyanUniversity and a 1981 graduate of Case Western Reserve UniversitySchool of Law in Cleveland. He was the president of the CuyahogaCounty Criminal Defense Lawyer's Association in 1995-96.He has been working in the field of capital litigation sincethe appeal of the very first capital case under the new law,State v. Leonard Jenkins. He is a frequent lecturer at capitallitigation seminars. Although perhaps better known for hisappellate work, he prefers the courtroom. He has representedapproximately fifteen capital clients at the trial level,including serial killer Thomas flee Dillon. He is currentlyrepresenting the man accused of killing Sam Sheppard over fortyyears ago. All this, and he still does not have a clue as to what isgoing on. Return to OACDL Home Page |
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