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Issue 04/21/11 - Vol. 42, Issue 15

I Am Innocent
by lyle e davis

About 31 years ago, then Sheriff John Duffy was having a rasslin’ match with the County Board of Supervisors over funding for the San Diego County Jail.  Duffy wanted money to upgrade the facilities and services, the Supervisors didn’t want to give him any.

Duffy was always a master showman.  He orchestrated an invitation to spend a weekend in jail so that area leaders and media could see what it was like and report on it.

I was one of those invited guests.

We had a Municipal Court Judge, a Social Worker for one of our state legislators, myself, three or four other guests, most of whom were in some form of government service.

We entered on a Friday night and were due to go home on Sunday evening.  We went through the regular booking procedure, were issued jail clothing, had an intake interview, all the procedures a regular inmate would experience.  The one thing we were spared was the strip search.  We did not have to experience that.

We were assigned our cells (they call them tanks) and spent the weekend in jail, seeing all that there was to see, feeling the isolation, hearing the noises, smelling the smells, and getting some sense of what life in jail was like.

It was not one of the more “fun weekends” of my life.  Still, I learned a lot.  I?was working for KFMB at the time and the tv crews showed up Sunday night to film our release, to interview us. and get our impressions of life in jail.

John Duffy got his money from the Supervisors.  He had pulled off another masterful coup.
That weekend in jail made an impression on me that has lasted to this day.  It registered even more strongly when I learned about a man, Ken Marsh, who had been in prison for 21 years for a crime he did not commit.

Even knowing a bit about what it was like from that one weekend, one can only imagine what it’s like to live that life every day, every week, every month, for 21 years!

Fortunately for Mr. Marsh, there was an attorney, Tracy Emblem, who agreed to take on his case and prove his innocence.  What’s more, she took on the case, pro bono, which means she did not charge legal fees.  
The background:  Ken Marsh and his girl friend, Brenda Buell Warter, lived together in San Diego with Brenda’s young son, 33 month-old Phillip Buell and daughter, Jessika.  

Phillip had been quite ill for some time and was taken to the doctor often by Ken and Brenda to attend to his frequent illnesses.  Later investigation would show that Phillip suffered from Infectious Mononucleosis and a consequent bleeding disorder which inhibited his little body's ability to coagulate blood.

Worried that they lived too far away from the hospital, Ken and Brenda moved to an area closer to the hospital.  They arranged to work different schedules so that someone that they trusted was always with him. This was something they chose to do and neither of them resented it. They were concerned for his safety. Ken Marsh was babysitting on that fateful day in 1983.  In Ken Marsh’s words:  “I was watching the kids that day; I was, as Brenda, very protective and watchful over his care. However, I choose to make a fatal error when I walked out of the room to get a vacuum cleaner and left him unattended, only to return seconds later to find him unconscious on the floor. It was the most horrifying experience for anyone to have to go through, finding Phillip like that and feeling so helpless was like a knife to my heart. I loved Phillip and watched him grow from birth to death.”

Evidence would show Phillip had fallen from the top of a 4-5 foot sofa and hit his head on a speaker with an ashtray on top of it on the way down, striking the back of his head on the fireplace hearth.

Phillip fell at 11 a.m. on April 27, 1983, and Ken Marsh called 911 immediately. The records indicate that Phillip was going through a post-traumatic seizure - he had a pulse but low blood pressure and chopped breathing. The forensic evidence immediately gathered by the police establishes that there was very little blood from Phillip's cuts to the back of his head. He was sent by ambulance to Alvarado hospital without any neurology care. When Phillip left Alvarado Hospital he was at least stable. In the ambulance a pronounced period of Bradycardia is documented after an injection of Mannitol (prior to a blood transfusion)by a resident physician, Dr. Johnston.

Soon after this point is where health care workers start seeing bruising and swelling appear before their eyes. Around 1:30 p.m., Phillip was taken to Sharp Hospital, next door to Children's Hospital where he had a CAT scan. Phillip didn't arrive at Children's hospital until over 2 1/2 hours after he incurred a closed head injury. During this three hour time period, the swelling in Phillips head grew without any medical intervention whatsoever. In a later declaration, it was shown that the resident physician had improperly given Phillip Mannitol that exacerbated his cerebral bleed and brain swelling.  Mannitol, a blood thinner,  increases a propensity to bleed rather than restrict bleeding.  In other words, this medication did exactly the reverse of what was desired and thus increased the brain swelling.

Around 1:40 p.m., Dr. Kenneth Ott from Children's hospital inserted an ICP monitor to relieve the pressure in Phillip's head.

At 4pm, Phillip was observed by medical staff to be on the respirator.  The following morning, he was removed from the respirator at which time he died.

So far, this is the report of a tragic event with police and medical attention, with some of the medical attention being questionable as to judgment and administration of medications.

But now, the case became even more tragic.

Ken Marsh was to be charged with murder.  

Doctor David Chadwick entered a finding of ‘non-accidental death,’ and authorities then proceeded to file a complaint against Ken Marsh, for murder.  (Later, in 1995, then District Attorney Paul Pfingst found Dr. David Chadwick to not be a credible witness).

However, the police conducted a thorough criminal investigation into Phillip’s death. Marsh was not immediately  arrested for Phillip’s death because there was no physical evidence to support the doctors’s speculative theory of murder. Homicide Team III Sergeant Ted Armijo turned the police department’s investigative information over to the D.A.’s Office with an informal finding that Phillip’s death was accidental.

Eight weeks later, on June 30, 1983, even though the San Diego Police Department concluded that Phillip’s death was accidental, the D.A.’s Office filed a felony homicide complaint.

Later, it was established that Dr. Roger Williams, who  performed Phillip’s autopsy on April 29th, 1983, was neither board certified in forensic pathology or board certified in pediatric pathology.
Ken Marsh was tried and convicted of 2nd Degree Murder in November of 1983.  From the beginning, he always professed his innocence.  The boy’s mother, Brenda, agrees and has fought steadfastly to have him released from prison.

The court appointed attorney representing Mr. Marsh had never tried a case of this type and called no expert witnesses.

In 1995, another attorney filed a habeas petition for Ken Marsh. This was his first habeas petition ever. It failed.

Several of Marsh’s attorneys suggested he plead guilty to a lesser charge to either receive a reduced sentence or to be released from prison.  He refused, declaring he was innocent.

He spent 21 years in prison.

Then they found Tracy Emblem.

The Law Offices of Thor Emblem and Tracy Emblem would ultimately serve as lead counsel on representing Ken Marsh. The Emblem law firm had specialized in civil litigation and criminal and civil appellate law since 1989.

Tracy Emblem has represented Ken from January 1996 when his first petition for writ of habeas corpus filed by another attorney was denied. When Emblem first began reviewing Ken's case, she knew the case needed a substantial pro bono time and investment commitment that her law firm could not then fund. Tracy suggested that Ken and Brenda find other pro bono legal assistance in July 1996.

After Ken and Brenda turned to the Public Defenders Office and the California Innocence Project, and other attorneys who could not assist in the extensive investigation required to overcome the hurdles of a successive writ filing, Brenda returned to Tracy in July 2001, pleading to investigate Ken's case.

Tracy began her investigation into Phillip's autopsy and the public records. With the pro bono assistance of private investigator Michael Newman of Tactical Investigations, Emblem obtained critical witnessed interviews to overcome the successive petition procedural bar.

By February 2002, Tracy uncovered substantial evidence of Ken's factual innocence. She invited the Innocence Project to assist in whatever they could offer. Tracy, with the help of Brenda, began contacting experts all over the country asking them to evaluate the medical evidence pro bono. The experts they sought had to give more than a perfunctory review of the medical records. They had to examine each and every minute detail of the case and leave no stone unturned.

By November 2002, when the habeas petition was filed in San Diego Superior Court, Tracy Emblem had performed more than 2,000 pro bono hours in investigating Ken's innocence and drafting the legal pleadings. Between March 2003 and March 2004, the habeas discovery was exhaustive. In April 2004, Tracy's husband and law partner, Thor Emblem, began assisting on the case in preparation for an evidentiary hearing. The Traverse was filed on June 7, 2004. On August 4, 2004, the District Attorney agreed that there were grounds to reverse Ken's conviction. On August 10, 2004, Ken came home.

What tremendous amounts of time, energy, money, and knowledge of law were needed and applied to right this terrible wrong!  For example, in their successful writ for habeas corpus, the Emblems argued:

•  Phillip fell at 11:00 a.m. on 4/27/83 and 9-1-1 was called. The day Phillip fell he was transported to Alvarado Hospital and then Children's Hospital. During the transport from Alvardo Hospital to Children's Hospital, the Children's Hospital resident physician, a Doctor Johnston,  gave Phillip 8 gm. of Mannitol. About 40 minutes later, Phillip's brain swelling magnified and he had Bradycardia (a slow heart beat). He was not seen by a neurologist for 2 ½ hours. This was after the Mannitol therapy.

•  Dr. Ruth Stern, Phillip's Kaiser pediatrician was also a member of Dr. Chadwick's child abuse council. She told the Alvarado Hospital emergency room physician that Phillip had previously had Mononucleosis and a bleeding disorder.  This information was apparently ignored.

Dr. Michael Innis, a hematologist, has reviewed the medical records and has provided his declaration that Phillip was indeed extremely ill when he fell and had an existing clotting weakness induced by disease.

• On Phillip's pending death certificate, 9608, an international death classification code is handwritten on it. This code is "poisoning by other specified antibiotics" (toxic reaction categories). Dr. Thomas Schweller a neurologist and pediatrician has reviewed Phillip's medical records and the Children's Hospital transport record. He has provided his declaration that Phillip was improperly given Mannitol that exacerbated his cerebral bleed and brain swelling.

• The day Phillip fell, Dr. David Chadwick and the Children's Hospital doctors proclaimed he was murdered by Ken Marsh, before any investigation had even begun.

From that point on, Dr. Chadwick had committee meetings discussing Phillip's death. On 5/17/83, Dr. Chadwick falsely summarized Phillip's existing medical records omitting almost all mention of Phillip's disease and coagulapathy symptoms. There was no mention of Phillip's reaction to the Mannitol given to him by the Children's Hospital resident physician, Dr. Johnston.

•  From 1981 to 1986 the District Attorney and Coroner's Office implemented a policy allowing Children's Hospital pathologists to perform autopsies in questionable child death cases. This was a conflict of interest. Dr. Williams worked under Dr. Chadwick who oversaw the child abuse deaths. Dr. Williams was not a board certified forensic pathologist and performed an incompetent autopsy. Dr. Williams took blood and tissue samples in a criminal investigation but destroyed them without testing them.

•  On 5/18/83, Dr. Chadwick held a meeting that Dr. Williams, Dr. Stern, and District Attorney Jay Coulter attended presenting his false summary of Phillip's medical records. The following day, on 5/19/83, Dr. Chadwick, Dr. Williams, Dr. Stern and Dr. Lohner met discussing Phillip's case. Dr. Williams then issued his written autopsy report the same day.

On 6/30/83, Ken Marsh was charged with Phillip's murder. The District Attorney began prosecuting Marsh without an official cause of death and investigation report. Phillip's final death certificate was issued almost three months after his death on 7/21/83. The coroner's report, ruling Phillip's death a homicide was issued on 7/25/83.

•  District Attorney Coulter knew that the police investigation concluded that Phillip's death was accidental but prosecuted Ken Marsh under a policy to prosecute cases at the urging of Dr. Chadwick.

•  The entire process, including having Phillip's autopsy performed by a doctor who was not a forensic pathologist to prosecuting Ken Marsh before an official cause of death, was highly irregular. At the time, there were other forensic pathologists who could have performed Phillip's autopsy, who were not associated with Children's Hospital. They would not have attended group consensus meetings to determine Phillip's cause of death.
•  Ken Marsh was represented by appointed counsel who did not adequately investigate Phillip's cause of death. This was his first child abuse murder case.
•  At least three other cases were prosecuted and subsequentley overturned, all of which involved false accusations by Dr. David Chadwick.
•  The D.A.'s Office is in a unique position not only to prosecute criminal acts, but to guard against flawed and wrongful prosecutions. It possesses information unknown to most defense counsel and the general public. When they knew that the Children's Hospital pathologists were not forensically trained and should not have been performing autopsies in medicolegal investigations, the D.A. had a duty to examine the cases where the convictions were obtained by flawed evidence. The D.A. and Coroner's Office remained silent when they could have reviewed Ken Marsh's case. Not only was an incompetent autopsy performed, Dr. Williams falsely stated his forensic qualifications to the court and jury.

One of the more dramatic declarations in this case came from the investigating police officer from the San Diego Police Department:

I, TED ARMIJO, declare as follows:
1. I was employed with the San Diego Police Department for 31 years before my retirement from the department in January 1993.

2. I was the homicide detective in charge of the San Diego Police Department Homicide 3 team who investigated the death of Phillip Buell which occurred on or about April 27, 1983.

3. Team 3 conducted the investigation in Phillip Buell's death and turned our investigation information over to the District Attorney's Office. I gave a verbal opinion that there was insufficient evidence to charge Kenneth Marsh with the death of Phillip Buell. I based this on the crime scene investigation and witness interviews.

4. In my opinion, we conducted a very thorough investigation into Phillip Buell's death. My team was called to interview witnesses, including the doctors, and the defendant, Ken Marsh, and photograph the victim and crime scene. Members of my team physically went to the crime scene and obtained evidence, including a broken ashtray and a towel. I recall that our independent investigation of the crime scene coincided with the defendant, Ken Marsh's statement of events. There was very little blood. We retrieved the evidence, the towel which Mr. Marsh placed behind Phillip's head, pieces of a broken ashtray and took crime scene photographs for our investigation. We did not arrest Ken Marsh because everything at the scene was consistent with what he related to us, that the child fell off the couch and hit his head on a speaker which had an ashtray on top of it, then striking his head on the fireplace hearth.

5. In my professional opinion and based on my training and experience as a homicide detective, the crime scene was not consistent with the doctors' explanation that Phillip Buell's death was non-accidental and caused by physical abuse of a blunt trauma or a fall from a 4 to 8 story building. We checked the Marsh/Buell residence thoroughly because we were told by medical personnel that there should have been a massive amount of blood at the residence.

6. During our investigation, we discovered that Phillip Buell had a history of low blood pressure in which on occasion caused him to fall off of his bicycle and the toilet. At one point during the investigation, after reviewing some medical records, a comment was made that Phillip's mother took her son to the doctor even for a cough. She was very protective and concerned about her son's medical condition and would rush him to get him medical attention for the smallest of reasons.

7. My team and myself, believed that an accidental death occurred. We would have immediately arrested Ken Marsh and charged him with the murder of Phillip Buell, had there been any evidence, whatsoever, that he inflicted Phillip Buell's injuries. Not one member on my homicide team ever objected to our conclusion that the child's death was accidental. I turned our investigation over to the District Attorney's Office and was surprised to later find out that the District Attorney was prosecuting Ken Marsh for murder.

8. I did not personally participate or attend any meetings with the Child Protection Committee at Children's Hospital and the San Diego Police Department did not normally attend those meetings to discuss cases and child abuse.

9. I was unaware that the District Attorney's Office filed a felony homicide complaint against Ken Marsh on June 30, 1983, before a Coroner's Report was written or a death certificate was issued. I find it odd that Mr. Marsh was prosecuted before the Coroner officially stated a cause of death for Phillip Buell.

10. Neither Ken Marsh's attorney nor any defense investigator ever contacted me to discuss my department's investigation prior to Mr. Marsh's trial. Had I been subpoenaed to testify, I would have testified as to the above facts, and the homicide team's conclusion that the crime scene was consistent with Ken Marsh's statements and that in my opinion, Phillip Buell's death was accidental.

11. I also find it odd that Dr. Williams, who performed the autopsy, worked for Children's Hospital and saw Phillip upon his admission to Children's Hospital. In my opinion, an autopsy should have been performed by an unbiased party.

12. In my 31 years of working for the San Diego Police Department, Ken Marsh's case is the only case that I ever had any questions on and in which I believe that an innocent man was convicted.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed at San Diego, California on December, 2001.

By: TED ARMIJO

We reviewed this lengthy and mighty battle that the Emblems fought on behalf of Marsh.  

How did this all come about?

Tracy Emblem:  “I advised Brenda to go to the SD Public Defenders Office because the case seemed to be so politically charged; the 1991 Grand Jury actually investigated Chadwick and a grand juror brought the case to me and asked me to evaluate it; The record showed the child was sick (something the jury never heard). I knew there was a grave injustice but I also knew I could not afford the investigation and experts needed to re-open the case.

By the way, it is very hard to re-open a case like the Marsh case because even though there is a "life" sentence, under case law you have NO subpoena power and have to rely on your wits and the California Public Records Act which the agencies typically try to shut you down on requests.

The Public Defender had the Marsh case for well over a year before they gave it back to Brenda; Then she took it to the California Innocence Project and they sat on the case for another 1 1/2 - 2 years while they were trying to figure out what could be done but could not; When she came to me she was crying, and so I said okay I would do my best but we had to find people who would work pro bono to help evaluate the case.”

What was your emotional feeling when Marsh was released?  Is this the single most memorable case in your legal career? You must have a great sense of contentment at having done such a challenging task successfully.

Tracy:  I cried because there is a lot more history about the case (the unwritten stuff I can't talk about without a written release from Marsh.)  It was a lot of effort; it took up my evenings and week-ends and....and my family felt  the pressure, too.”

In this lengthy writ for habeas corpus, Tracy Emblem, together with husband, Thor Emblem, and the California Western School of Law - California Innocence Project, successfully gained the District Attorney’s agreement there were grounds to reverse Ken Marsh’s conviction on August 4, 2004. On August 10, 2004, Ken came home.

Tracy and Thor Emblem can be contacted at: Emblemlaw.com
Or call: 760.738.9301.

The California Innocence Project (CIP) is a law school program that operates out of the Institute for Criminal Defense Advocacy of California Western School of Law. Students work alongside practicing criminal defense lawyers to seek the release of wrongfully convicted inmates, in the state of California, who maintain their factual innocence.

The California Innocence Project provides pro bono legal assistance to inmates in cases where DNA testing of evidence or discovery of new evidence can yield conclusive proof of innocence.

For those readers who are interested in reading in-depth reports on this case, including professional medical and legal opinions, and to read the writ for habeas corpus, please go to:

freekenmarsh.com

This website is quite complete and has a substantial bibliography for those who wish to research the case further.

Suffice to say, Tracy Emblem and her colleagues did a monumental job of research and other investigation to see that an innocent men is living today free of prison.