People v. Ken Marsh

By Brenda Buell Warter

My son, Phillip, age 2 ½ yrs old, died in 1983. The day of his death, he fell from a top 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. Ken Marsh was babysitting Phillip and was charged with murder and was convicted of his murder in 1983. Ken has always maintained his innocence. I have kept up my fight to clear his name because I know that if I had been home with Phillip by myself that day; it would have been me that was charged with my son's murder.

Detective Armijo, of the S.D. homicide department, believed Phillip's death was an accident but the case was prosecuted as a murder/child abuse crime at the urging of Children's Hospital doctors. Detective Armijo, the homicide team leader, has since come forward with a signed declaration to help free Ken stating that he believes that in his 30 years with the S.D.P.D., this is the one case that bothers him because he feels that an innocent man went to prison.

The medical staff that was treating Phillip at Children's Hospital the day of his death, ruled Phillip's death a murder. In fact, when I arrived at Children's hospital before he died, the doctors immediately told me that Phillip had been murdered. This was prior to any autopsy being performed. Ken was arrested prior to the medical examiners report was issued on the cause of death, and before a death certificate was issued. The Children's Hospital doctors all testified at Ken's trial in 1983 that Phillip could not have suffered traumatic brain swelling, and bleeding as a result of the fall and could not have died from a short fall. (We now have helmet laws to protect children from such short falls off of bicycles, scooters, etc.) .

Phillip had a prior undiagnosed bleeding disorder (Dr. Ruth Stern Phillips pediatrician called the ER crew to notify them Phillip had a blood dyscrasia and infectious mono). But Dr. David Chadwick of Children's Hospital, summarized Phillips death and omitted all evidence of the coagulapathy. All the other doctors relied on his summary for their diagnosis and did not review any prior medical records. In a meeting with the doctors. At Children's Hospital I begged them to look for his illness. They told me to separate myself from him and let go of the illness, it had nothing to do with Phillip's death. To top it off Ken's attorney presented NO expert medical testimony in his behalf and did not get a second autopsy.

Ken was tried and convicted of 2nd Degree Murder in November of 1983. He has spent the last nineteen years in prison because the jury never heard any evidence of Phillip's pre-existing medical condition. The autopsy was performed by a Children's Hospital Doctor who had been a treating Physician during Phillip's emergency care. It should be done by an independent doctor. I have since discovered that this doctor, Dr. Roger Williams, was not qualified to render an opinion where causation of death is questionable because he was and still is not a board certified forensic pathologist and has no specialty training in forensic pathology. Everywhere they touched him he bruised. At trial, they had my baby's autopsy photos blown up life size on a wall. That is not how I wanted my baby remembered.

No-one ever tested for a bleeding abnormality even though Phillip's prior medical history indicated had been bleeding internally 2 months prior to this accident. A review of the the records would have shown them that he was being seen frequently for vomiting, bruising, distended stomach, and clotting symptoms which were documented by lab results. From the moment of Phillip's birth he had medical problems. The amniotic sack broke 18 hours prior to delivery. He remained in the birth canal for a long period of time. The doctors had to use forceps to deliver him and his head and face were mangled from them at birth. He had broken blood vessels in each eye, jaundice, and chalmydia pneumonia. And a huge fontanel that never totally grew together.In Jan. 1983, he lost a lot of blood. This happened a few days's after I took Phillip to the Kaiser Hospital with vomiting and constipation and a hyper-extended stomach. After several Kaiser visits, in January 1983, I took Phillip into the Kaiser emergency room because he was in shock. I was screaming malpractice when Dr. Cashmore walked through the door in the ER, I believed that he misdiagnosed him a few days prior, he then filed a suspected child abuse report about Phillip. This is the time when he threw up a child abuse flag and Phillips doctor happened to be part of the child abuse committee and her husband a physician at Children's Hospital. From that point on no matter what I took him in for they made nothing but accusations in the chart, that I was never aware of. They would make documents like new bruises noted, mother has no explanation. No shit that is why I was bringing him in regularly, it is all over his charts. Mother bringing him in for " bruising, vomiting, etc". After putting our family through hell, it was dropped in March, about three weeks before Phillip fell. The Kaiser doctor, Dr. Stern, took the case to the child protection committee at Children's Hospital. Dr. Stern was a member of the child abuse committee, so the day Phillip died, the Children's Hospital doctors were well aware of his case. They did nothing to help answer his internal bleeding issue. In which Dr. Stern herself testified. " I wish they could have told us where the bleeding had gone." This was a 2 1/2 yr old boy with 5 inches of medical records and for at least a year prior to Phillip's death, I had been taking him to the same physician at Kaiser Hospital on a regular basis and reporting abnormal bruising, vomiting, constipation, hair loss and petechiae and purpura (discolored spots on his body).

From that point on all my cries for help went unheard by the blindness of those I was supposed to trust. When I entered Children's hospital the day that Phillip fell, a Children's Hospital Doctor in an outside area approached me immediately. He told me my son had been murdered and that his death could not have been accidental.

Phillip fell at 11 a.m. and Ken 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 cut's 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). 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 3 hour time period, the swelling in Phillips head grew without any medical intervention whatsoever. And had been exaggerated in transport.

Around 1:40 p.m., Dr. Kenneth Ott from Children's hospital inserted an ICP monitor to relieve the pressure in Phillip's head. The medical records appear to establish that they were all witnessing swelling before there eyes. Earlier, Kaiser had diagnosed Phillip with a ruptured spleen that was ruled out during his autopsy. I believe that several of the doctors on this "child abuse" panel run by Dr. David Chadwick, and Dr. Williams were the ones treating Phillip the day he died and later testified that Phillips head injuries could not have occurred from a short fall.

I vehemently objected to Dr. Williams performing the autopsy since I felt he had a conflict of interest in determining the cause of Phillip's death. Dr. Williams had treated Phillip at 1:30 p.m., when he was first admitted to Children's hospital and I felt he would not be objective, given the fact the Children Hospital doctors had told me that Ken had murdered Phillip. In arriving at his opinion on causation, Dr. Williams did not look at the pre-existing illness and symptoms that Phillip suffered and that were documented in the Kaiser medical records from January to the date of his fall. The autopsy report does not mention any pre-existing conditions. Dr. Williams took evidence samples at the autopsy but had them destroyed without testing them.

At the time Ken was prosecuted, the County Coroner's Office was permitting Children's doctors to perform autopsies so that they could increase the child abuse prosecution conviction rate. (See LA Times Article). Also, there were several other cases in which Children's Hospital doctors erroneously concluded that an accidental death was child abuse/murder and the Medical Examiner's office rubber stamped the autopsies resulting in criminal prosecutions. I have collected several newspaper articles where the medical examiner's office had to back down when other doctors conducted an outside independent review of the case. Had Ken had the benefit of an independent review from unbiased doctors, I don't believe he would have been convicted and sentenced to a life behind "Prison Walls".

Over the years I have written hundreds of letters to medical and legal professions urging them to review my case. I have located a phenomenal Appellate Attorney, Tracy Emblem, who has dedicated thousands of pro bono hours and tears putting together a Writ of habeas Corpus petition.

Tracy Emblem and Brenda Buell Warter

We have received assistance from the California Western School of Law and several medical experts who reviewed Phillip's medical records. After a careful review of all of the medical records, they have submitted there declarations for the Writ. Finally I have the proof and answers I have needed, to understand why Phillip died as he did, and just what was wrong with him before he died.

I am joined by friends, family and legal and medical professionals all over the country who believe that Ken has been wrongfully convicted. Here are just a Few!

 

Phillip's Family: Mom (Brenda), Sister Mellisa, Grandma, and Sister Jessika.

 

A Few Words From Attorney Tracy Emblem

Ken Marsh was convicted of the child-abuse murder of 33 month old Phillip Buell, a crime he did not commit. Phillip was neither abused nor murdered. The investigating police officers believed Phillip's death was the product of an accidental fall. Phillip's family knew little Phillip was not killed at the hands of Ken Marsh and have continuously protested his conviction from the outset, to this day. Ken Marsh has maintained his absolute innocence, while remaining in prison buried alive and forgotten for the past twenty years.

No one ever saw Marsh do anything to Phillip. No one said Ken Marsh had a motive to harm Phillip. No one ever heard Marsh say that he had done anything to Phillip. In fact, according to everyone, Ken Marsh had a loving and gentle history with Phillip. He just happened to be the person at home when Phillip fell off a sofa and hit his head on the fireplace.

So, who said Ken Marsh killed little Phillip? It was the doctors at Children's Hospital and they did it the very day he was admitted.

As set forth in some of the bullet points from the habeas petition, prior to his death, Phillip was a sickly child with a documented medical record of disease highly relevant to the cause of his death. He had infectious Mononucleosis and a consequent bleeding disorder which inhibited his little body's ability to coagulate blood. A short fall with his head hitting a hard surface would provoke his intracranial bleed. Then, in an act that proved fatal, the doctors attending Phillip gave him a large intravenous injection of a drug (Mannitol) that immediately brought on a massive intracranial bleed leading to his tragic death. Mannitol is a drug that provokes bleeding -- the exact opposite of what Phillip needed to stop his bleed.

The doctors who pronounced Phillip's demise to be the criminal product of human hands to the exclusion of all other possible causes, on the very the day of his admission to Children's Hospital, never mentioned a word of the above. They gave the diagnosis popular at the time - if an infant is injured, the parents or parent surrogates are to blame. Science and medicine were not consulted that day.

Now, highly qualified doctors have reviewed this sorry record. These doctors are working for no compensation in the cause of innocence, as are the lawyers, to rectify the wrongs of their own profession. The habeas petition documents why no competent physician could rationally find (then or now) that Phillip's death was caused by Kenneth Marsh. Phillip hit his head on a fireplace causing an intracranial bleed. His existing disease inhibited his body's natural coagulation defense to stop the bleed. Phillip's limited natural defense was totally compromised by the doctors's administration of Mannitol. Unmentioned at any previous proceeding in this case is a numeric code entry, scratched in the margin of Phillip's death certificate. This cryptic entry is an International Death Classification code showing that one of the causes of Phillip's death was toxic poisoning - the administration of Mannitol by Children's Hospital. This is but the tip of an iceberg of cruel malfeasance in this case perpetrated on petitioner and Phillip's family by those in a position of trust, causing an immeasurable injustice.

WHAT WENT WRONG WITH THE MARSH PROSECUTION?

· Ken Marsh has maintained his innocence his story has never changed. He has repeated it over and over again during several parole hearings. The state prison psychologist, Dr. Terrini believes he is innocent.

· Phillip's family has always maintained he was very ill and that his illness was not properly diagnosed. They all support review of his case. Phillip's mother has begged every public official excluding the President to look at his case and the medical records.

· The murder investigation was turned over by the police to the District Attorney's Office with an accidental death opinion. Detective Armijo, in charge of the San Diego Police Department Homicide 3 Team has provided a declaration to the court. He believes that Ken Marsh is innocent.

· Dr. Gregory Reiber has reviewed the medical records and Phillip's autopsy photos and report. Dr. Reiber is Director of Autopsy at UC Davis Medical School. He has personally performed approximately 5000 autopsies for coroners in this state. He has testified over 300 times, predominately as a prosecution witness. He is an expert in child death cases appearing at California Attorney General's Office training, symposiums, etc.; trauma death committees. He says Phillip's death was accidental. Phillip suffered a rotational fall with a whiplash injury when he fell from a couch onto a raised brick hearth breaking an ashtray and cutting himself during the fall.

· 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 gave Phillip 8 gms 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.

· From 1981 to 1986 the District Attorney and Coroner's Office implemented a policy to allow Children's Hospital pathologists 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.

· Dr. 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. 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.

· The day Phillip fell, Dr. Chadwick and the Children's Hospital doctors proclaimed he was murdered by Ken Marsh. From that point on, Dr. Chadwick had committee meetings discussing Phillip's death. On 5/17/83, Dr. Chadwick erroneously 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.

· 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.

· 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. In a subsequent newspaper article, Children's Hospital Links to Coroner's Office Questioned (Aug. 19, 1985) Weintraub Los Angeles Times, D.A. Coulter was quoted as stating that he had ". . .nothing but complete trust in the honesty and integrity" of the Children's Hospital pathologists. He further stated:

I'd rather be in a community where doctors are going to pound on my door and say Dammit, get up and prosecute this sucker, rather than what might exist in other communities where a case turns up and the prosecutor goes from doctor to doctor and they all say, 'Gee, I'd like to help but I'm real busy' or 'The facts in this case aren't clear.'. . .

· 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.

· In 1985, Carol Phinney was prosecuted in the same irregular manner with false evidence. She was acquitted and found factually innocent. John and Michelle Ferraro and Linda and Harvey Thomas were also found to be wrongly accused by Dr. Chadwick of child abuse deaths.

· Some national authorities have estimated that erroneous diagnoses of child abuse occurs in 5 to 10 percent of cases. (See, Critics Say Crusader sees Abuse Where There Isn't Any (Dec. 11, 1991) Dalton, San Diego Union-Tribune.)

· In 1985, the San Diego County Board of Supervisors acknowledged the problems with the Coroner's Office and asked for a review by the National Association of Medical Examiners (N.A.M.E.) Dr. Boyd Stephens, who is the San Francisco Medical Examiner conducted the review. The report documents that there were four lawsuits under litigation, three directly related to autopsy issues and three claims that had not yet reached the courts alleging failure to properly perform autopsies and/or failure to properly determine cause of death.

· 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 incomplete autopsy performed, Dr. Williams falsely stated his forensic qualifications to the court and jury.

· In 1995, another attorney filed a habeas petition for Ken Marsh. This was his first habeas petition ever. During the proceeding, instead of searching for the truth and impartially reviewing the medical record evidence in Marsh's case, D.A. Kiernan unethically took possession of two boxes of Marsh's attorney-client files without his consent while his prior habeas petition was pending and used evidence gained from them to protect the D.A.'s ill gotten conviction.

These are just a few of the errors very carefully detailed in Ken Marsh's extensive habeas petition. It documents the grave injustice that shattered the hearts and souls of two families. The Marsh and Buell families were victims of the very system which is supposed to provide justice. The families hope the petition opens the eyes of others who are also victim of wrongful prosecutions. The government agencies could have reviewed the Marsh case in 1985 when they knew there were others wrongfully prosecuted but left Ken Marsh sitting in prison opting to remain silent. What they did was immoral and unforgivable.

 

Writ of Habeas Corpus

Declarations of: (in PDF format)

Detective Ted Armillo

Dr. Gregory Reiber

Dr. Thomas Schweller

Dr. Michael Innis

Vickie Peterson (Braunstein)

Judith Watkins

 

 

 

 

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