by David L. Doughten

In August of 1995, I was appointed along with Jeff Jakmides of Alliance, Ohio, to represent Susan Gribben. Ms. Gribben had been charged with killing her four young children with prior calculation and design. I had grown up in New Philadelphia. I was to return home to try one of the most extraordinary cases of my career.

According to the indictment, Susan had taken an accelerant, thought to be gasoline, and poured it throughout the floor of the kitchen of her rented ramshackle home. She lit it, waited for the fire to spread, then jumped out of her second floor window to safety. She allegedly did this for the purpose of burning her kids to death. The specifications were multiple killing under A(5) and felony murder under A(7).

Via long distance, (I was on vacation with the family) a motion to preserve the fire scene was prepared. It seems that the landlord, for some unimaginable reason, (he wrote with tongue planted firmly in cheek), was seeking a court order to tear down the 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, was actually interested in justice. The house stands, albeit tottering, 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 could obtain a plea. Less than two weeks before the Barnhill fire, Susan Smith had been sentenced in South Carolina. The prosecutor in Tucarawas County was running for re-election in the spring. Sensing a media opportunity, Ms. Gribben was indicted capitally for the prior calculation and design killing of her four children. These children’s ages ran from one to three years old.

The coldness of the killing would chill even the most experienced trial litigator. According to the newspaper and the prosecutor, the events leading up to the fire proved her unquestionable guilt. However, the facts as reported by the newspaper were, surprise, surprise, completely incorrect. It was learned that the facts were supplied to the reporter by an investigating officer of the sheriff's department.

To understand the full complexity of the case, it is necessary to delve into the background of the defendant. Time and space require a cursory social history. Remember that the background that follows was un-contradicted.

The Gribben case was an unusual case to try in that the state's motive, for the most part, was the defendant's mitigation. The state believed that Ms. Gribben killed her children because her life was so horrific. The state's theory was somewhat schizophrenic. First, a la Susan Smith, she intended to commit suicide with the kids and her survival instinct overcame her. The second, and more improbable theory, was that she wanted to run away with her natural father and live with him as his lover. This was the same man that had allegedly molested her as an infant and later convicted of a sexual offense. It is this second theory that the state relied upon during trial.

But I digress. First a micro summary of her social history.

Defendant's Background

Susan Gribben had been born to an alcoholic mother and a father who became a convicted sex offender. She had two siblings, a brother and a sister. Susan's aunt reported that Susan’s mother would never wash the children or their clothes. In fact, after the children's clothing became so filthy that even the mother could not bear the smell, the clothes were burned. New clothing was never bought. The clothes the children wore came from the generosity of the extended family and strangers.

At the age of six, family services interceded. Allegations of sexual molestation got them involved. When social workers arrived at the home, Susan weighed thirty-nine pounds. All the children were taken from the home. She and her sibs were placed in foster homes. Eventually they were adopted by one of their foster parents.

The conditions did not greatly improve. Both girls were subjected to inappropriate touching, although not actual intercourse. Susan, who was of much greater intelligence than the rest of her family, began to run away from home. She was adjudicated unruly, but was returned to the home even though she reported the touching incidents. Exasperated, she attempted suicide at age sixteen.

At the age of seventeen she ran away from home for good. She moved to New Philadelphia. She intended to finish high school but became pregnant. She married a man ten years her senior that same year. Her first born were twin girls. A year later a son was born, Another year later a second son was born, In between the births, she endured a hell that no person should be forced to endure.

Her husband, Michael Gribben, was discharged from the army under less than honorable conditions. He had a child with a woman that he did not marry or support. He had two additional children from his first marriage to a second woman. His first wife spent considerable time in a woman's shelter. He is paying support for these two children. Then there were the four children with Susan.

To say that he had a controlling personality is an understatement. Susan could not drive, Her husband refused to allow her to obtain a license. She was not allowed to work. Their rented Barnhill house was extremely isolated. They lived at 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 Mike beat 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 of violence. When she returned late from her visit to her father's house, her husband pointed out the blood from two of the kid's dogs. He had killed them with his bare hands as punishment for her staying away too long. To train the dogs (which he would later kill) to hunt, he tied a live rabbit to the back of a three wheeler and had the dogs chase it until the rabbit died.

Susan's husband had twice been arrested for indecent exposure for revealing his private parts to teenage girls at the high school and at an ice cream store. He went to trial for a sex offense charge against children. He was acquitted after Susan testified on his behalf. Susan revealed that she lied under threat from her husband that she would lose her children if he were convicted. She feels great guilt that she was part of that acquittal.

In the months prior to the fire, Susan was reacquainted with her biological father. One of her twins, Samantha, was afflicted with the webbing of her digits. Susan took Samantha to a specialist in Akron to assist in fixing the problem. Susan started to search for her parents for two reasons. She thought that finding her biological father would help in diagnosing her daughter's problem. She also felt a strong need to have her children and herself be part of a family unit.

Her biological father did not like the situation that he found his daughter, now 23 years old, living in. Although he originally got along well with her husband, the relationship quickly deteriorated. Upon viewing the battering first hand, he told Susan to get out. He offered to help her leave. He gave Susan an ultimatum: either she would have to leave Mike or her father would cease his relationship with her.

The beatings became more frequent as the date of the fire approached. She wrote both her father and adoptive parents often as the writings became an outlet for her frustrations. About six weeks before the fire she wrote her natural father and clearly mentioned that she felt suicidal and that she desperately needed help.

She did receive help. About a year prior to the fire Susan sought out help from a family counseling agency for raising her children. Fortunately, her counselor took a great interest in Susan's case. Susan did quite well in taking instruction and counseling. She was one of her counselor's better clients. The kids by all accounts were healthy and doing well.

However, when there appeared to be a relapse in the children's behavior, the counselor took a closer look. When the beatings were revealed, action was taken. Susan began to stay in shelters with the kids. Susan finally managed to call the police on her husband.

On one occasion in the months prior to the fire, the police arrested Susan's husband for domestic violence. Mike had a fixation with firearms. A search of the home uncovered an illegal firearm. The husband was charged with domestic violence and a felony dangerous ordnance charge. His arrest and subsequent time spent in jail added to the volatility of the situation. Scared, Susan dropped the domestic violence charge. The state persisted in the felony charge. The charge was dropped after the trial.

Finally, there was the sex. Susan and Mike had themselves photographed nude and placed an ad in an Ohio swinger's publication. They had a male partner join them on numerous occasions. Susan and this male began to write letters to each other that would make Penthouse letters seem tame by comparison. The state believed that Mike forced her to engage in his fantasies, This was just one more degrading incident that Susan was forced to endure. A defense objection to this evidence was overruled.

Day Before the Fire

The day before the fire was generally uneventful. Susan's adoptive father stopped to see her in the morning. She called various people throughout the day. The problems started that evening.

Mike had entered a "tough man" competition. Susan did not approve. She was worried that he would get hurt. She was not invited to watch. A fight ensued, The neighbors got their show. Mike started to call his father, as Susan complained he always did. To stop the call, Susan ran out of the house and pulled the telephone wires out of the house. Her father-in-law drove over to see them. He knew that there was trouble as his call was cut off.

When he arrived, he told both Susan and Mike that they had better get their act together or they might lose their kids. According to both Mike and Susan, they made up, as they always did, and went to bed in relative peace.

The Fire

The morning of August 17, 1995 was hot and muggy. According to 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 had overslept, as he often did. He asked Susan where he might find a T-shirt. She told him to look in the dryer. She also told him to bring home some milk after work. He left for work about 8:10 a.m. When he left, Susan was asleep, with her head at the foot of the bed facing the fan in the window.

The fire started in the next fifteen minutes. The ramshackle building was, on all accounts, a fire trap. Numerous investigators called the house one of the worst fire traps ever investigated. The fire started in the kitchen, on the first floor. Susan slept in the middle room upstairs. The children's bedrooms flanked the parent's room.

The fire was quick and lethal. The fumes from the burning material were so noxious that the deaths probably occurred within minutes of the start of the fire. The children did not have a chance. Susan saved herself by jumping out of her window. The question on everyone's mind became, "Why didn’t she save the children?" or rather "Why didn't she die with the children?"

Newspaper Account

According to the newspaper, three of Susan’s children were found piled up against each other just outside where the door would have been in the hall, A diagram appeared in the paper depicting the location of the children. She was less than ten feet away. Nothing prevented her from rescuing the kids. The fourth child, the youngest, died in his crib in the next room.

The community was outraged. How could a mother not die in the fire with her children? There could only be one answer, She must have wanted them to die.

The state argued that after her husband went to work, Susan jumped out of bed and ran downstairs. She ran outside and grabbed a gasoline can. She poured gasoline outside of the first floor bathroom window and on the porch. She also threw gasoline, about an additional gallon, on the kitchen floor. She then went through the bathroom, lit a match or a piece of paper and threw it out the window. This lit the gas on the ground, which in turn lit the gas on the porch, which burned through the door to the house and quickly spread up the stairs to the upstairs bedroom. The crime dog Pyra, no relation to McGruff, alerted to the gasoline in the kitchen. Pour patterns were found in the kitchen.

In the meantime, Susan had run up the stairs and closed the door on her children who were trying to get to her room for safety. She cold-bloodedly left them out in the hall, waited until 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 her guilt. She had been in her pajamas when she jumped to the ground. She asked a neighbor for a change of clothes immediately after jumping out the window, apparently to hide the gasoline that had spilled on them. She had very little soot on her pajamas or body. Some people did not think that she acted appropriately depressed in the days after the deaths.

Susan's biological father inexplicably told the sheriff's investigators that he had been having sex with Susan since their re-acquaintance. Most important, Susan herself had lied in her statement to the police about her activities on the morning of the fire.

Trial Testimony

The actual trial testimony, as noted earlier, was far different than had been related to the public by the law enforcement officials and the newspaper. We were aided immensely by the judge, who actually thought that due process demanded that we be entitled to experts, We obtained an arson expert, Robert Taylor, a psychologist, James Eisenberg, a mitigation expert, Lisa Roth and an investigator, Mike Durkin. Finally, we obtained Professor Emeritus E. E. Smith of Ohio State University. Dr. Smith believed so strongly that Susan was innocent that he volunteered his time. Dr. Smith, among other things drew a computer 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 of being paid for their work, we were able to establish the following. On the morning of the fire, Susan had fallen asleep after her husband left for work. Her face was toward the window fan. This saved her life. The ceiling tiles in the kitchen and elsewhere burned a toxic fume. Dr. Smith established that the children were probably dead in less than two minutes from the start of the fire. The children were dead before Susan awoke. The noise of the fan kept her asleep until the electricity failed. The fan itself blew fresh air into the room and kept the poisonous gas and fire headed in another direction.

Susan awoke and could see only dark smoke and feel great heat. Confused, she went to the window and screamed for help. Neighbors told her to jump. She refused to jump until she found her kids. Not until neighbors told her that her kids were already dead and that someone else would go in after them did she jump. One particularly enlightened man said that he had called her "everything but a white lady" to convince her to save herself. She cracked a vertebra in the fall.

After jumping from her window, she ran to her neighbor’s to call 911. Her plaintive screams can be heard in a hardly discernible voice, "My babies are dead, my babies are dead!" She then changed out of her thin nylon shorty pajamas into jeans and a flannel shirt for protection from the fire. She proceeded to run back to her house and try to get in to rescue her kids, Numerous people stopped her. She continued to scream at the neighbors, asking them why they had not saved her kids like they had promised.

The first firefighters in the house could not find the children. They were discovered in the hallway leading to the door of their mother's bedroom. Not one of the three older children even made it to the door opening. It would have been impossible for Susan to have seen them. The diagram in the newspaper was completely incorrect. Fortunately, a photograph preserved that all-important evidence.

The door to the parent's room had never been shut. Early investigators to the house found that it was impossible to shut the door. The room was very small. The door was open against the wall. The double bed would had to have been moved to close the door, and moved back when the door was reopened.

More important, Susan's husband testified that a huge pile of clothes was piled against the door. If the door had been closed during the fire, the clothes would necessarily have had to have been moved. The entire outside of the door would have been blackened. However, the area of the door where the clothes were piled was virtually unmarked. This protected area proved that the door had never been directly exposed to the fire. Finally, the burn patterns on the door and the door jam were consistent with the door being opened the entire duration of the fire.

No trace of gasoline was found anywhere in the house or on Susan's clothing. All experts, both state and defense, testified that gasoline poured in such large quantities would have been discovered in the flooring material which was indoor-outdoor carpeting. Nothing was found on her clothing. State witnesses conceded that the fumes alone would have been easily traced.

Susan's husband worked in a garage. He took his shoes off many nights and left them in the corner of the kitchen. You are only allowed one guess as to where the dog, Pyra, alerted. The dog's trainer conceded that the dog would have alerted to any petroleum product.

The so-called pour patterns were nothing more than burning carpet that resulted from liquid falldown from the ceiling. The poly-propylene carpet itself burned as a liquid.

Susan's biological father admitted that he lied to the prosecutor about their relationship. Her letters to him were clearly that of a daughter trying to find her father. In one particularly poignant card, Susan sent him an old report card. She wrote that she had always wanted to show her dad a report card and but had not previously had the chance.

Counselors testified that Susan had been coming to sessions regularly. In their opinion, Susan loved her children. Her children meant everything to her. She took great pride in her ability to care for her children in the face of great adversity. Susan's adoptive mother spoke of a letter written only weeks before the fire expressing her love for her children and asking in wonderment how her older sister could have given up her kids to foster homes.

Dr. Eisenberg testified that Susan was indeed a battered woman. The fact that women suffering from this syndrome almost never killed their children and, in fact, were moved to violence most often to protect, rather than harm, their children did not hurt the case. Susan, by everyone's account, tried very hard to raise her children, There is no evidence that she had ever even spanked her children. Her children were punished by the use of "time-out."

Dr. Eisenberg also noted that Susan was diagnosed immediately after the fire as suffering from post-traumatic stress. That diagnosis held true during the trial itself. Susan also suffered from survivor guilt, which perhaps partially explained the statement to the sheriff's deputy.

Incriminating Statement

When Susan was first questioned, without an attorney, about not getting her children out safely, the deputy told her that they were all piled up against her door. She thought that she was being charged with simply failing to save her kids. She told the deputy that she did attempt to save them. She said that she was up with the children after her husband left. She went downstairs and made them toast. She went upstairs and watched Barney with the kids. She fell back asleep. When she awoke again, she heard the kids calling to her. She went out into the hall 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 ten minutes. More important, she would have died if she even set foot out of her room, Susan admitted that she had lied before asking for an attorney.

Not knowing, when she told the deputy the story, that she was being charged with setting the fire, she had placed herself downstairs at the exact time the fire started.

Her husband called her while she was staying at a shelter prior to her arrest. He taped the conversation. He was attempting to trap her, as he gave the tape to the prosecutor. He asked her what had happened. She admitted that she did not wake up until the fan stopped. She admitted that she could not make an attempt to save the kids because of the heat and smoke. She also cried in heart-wrenching fashion that she could never kill her 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.

Deliberation

As the testimony of each witness seemed to help us rather than hurt us, we began to get nervous. The testimony was coming in almost as we had scripted. When the jury retired to deliberate, we agreed that we could not have placed a better case before the jury. The evidence had convinced me more than ever that we had an innocent client. I could not imagine a jury convicting her.

Yet, the community had seemingly made up its mind before the trial had begun. A number of "friends" asked me how I could represent a child killer. The number of jurors dismissed for cause had been staggering. A couple of prospective jurors openly stated that they wanted to kill her themselves. Some tried to sneak onto the jury so that they could ensure her death. Other prospective jurors convicted her of not dying with the kids. We could not know how many of these mindsets remained on the jury.

The local newspaper had also made up its mind. While all the media members and court watchers told us that they were convinced that she was not guilty, the local paper refused to print any of the exculpatory evidence. To this day, the community does not know what the jury knew.

The jury was out almost four days. Susan was nearly catatonic from nervousness. Here was a woman who had never caught a break in her life. She could not imagine receiving one now. She would rather die than to ever admit to killing her own children, a feeling that I understood completely. All she asked was that if she was convicted, that she be allowed to take a swing at the prosecutor. She was no shrinking violet. I am sure that she had honed her skills in her fights with her husband. Thankfully, I did not have to make that decision; the jury found her not guilty of all counts.

Obviously there were many more nuances to this case than can be mentioned here. It had everything, including allegations of murder, incest, homosexuality, menage-a-trois, abandonment, affairs, battering, stalking, surreptitious taping and everything else conceivable. I wish that I could say that we were able to gain an acquittal because of the expertise of Mr. Jakmides and myself. The real reason for the acquittal is that we had a judge who, in a very high publicity case, allowed us to question the jury fully on publicity and the death penalty in voir dire, allowed us to hire necessary experts and investigators, read our motions and ruled accordingly. Judge Lile was not afraid to ask for assistance on areas of law or procedure that were unfamiliar to him. In short, he ruled with a motivation to find justice rather than save the commissioner's budget.

In the prosecutor's haste to capitalize on the Susan Smith case, Susan Gribben was indicted with only one week of investigation. The state did not even have the lab reports (which were negative) when the case was presented to the grand jury. Pyra the dog had alerted. What else could possibly be needed. In some form of poetic justice, the prosecutor lost the primary.

How did the fire start? It probably will never be known. The fire scene was not properly preserved. We were unable to take out items for testing until nearly six months after the fire. It could have been arson. The landlord? The husband? The prosecutor had failed to learn that the husband had been trained in delayed ignitions in the service. A neighbor thinking no one was at home and wanting to rid the neighborhood of the Gribbens? A spark from a burn barrel? Spontaneous combustion?

Although the answer could be one or none of the above, at least this state has not made the grave error of having an innocent woman executed. Any judge believing that defense counsels' requests for funding are a waste of taxpayer money should read the transcript of this trial.

It is unfortunate that appellate courts are unable to review trials that are adequately funded. Had the judge refused to preserve the scene or not funded us to hire experts, we would have been left with the impossible burden of proving the prejudice on direct appeal or postconviction procedures. With no evidence to review, this burden could not have been met.

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David L. Doughten is a partner in the firm of Doughten and Smith in Cleveland, Ohio. He is a 1977 graduate of Ohio Wesleyan University and a 1981 graduate of Case Western Reserve University School of Law in Cleveland. He was the president of the Cuyahoga County Criminal Defense Lawyer's Association in 1995-96.

He has been working in the field of capital litigation since the appeal of the very first capital case under the new law, State v. Leonard Jenkins. He is a frequent lecturer at capital litigation seminars. Although perhaps better known for his appellate work, he prefers the courtroom. He has represented approximately fifteen capital clients at the trial level, including serial killer Thomas flee Dillon. He is currently representing the man accused of killing Sam Sheppard over forty years ago. All this, and he still does not have a clue as to what is going on.