State Pays Wrongly Convicted Man

A state compensation board awarded a San Diego County man $756,900 Thursday for having served 21 years in prison for killing a toddler whose death the state now believes was accidental.

A spokeswoman for the Victim Compensation and Government Claims Board said the award to Kenneth M. Marsh was the largest the board has made for a wrongful conviction.

Marsh, 50, was convicted in 1983 of beating to death Phillip Buell, who was 2 years and 9 months old, the older child of Marsh’s live-in girlfriend.

He told police that he left Buell and his sister, who was 18 months old, on the living room couch while he went to fetch a vacuum cleaner. While Marsh was out of the room, the toddler fell off the couch and hit his head on the brick hearth of the fireplace, Marsh said.

San Bernardino County Dist. Atty. Michael Ramos, a member of the state board, apologized to Marsh at Thursday’s meeting. Marsh said Ramos’ words moved him.

“To get an apology like that from someone who carries so much weight, that goes a long way,” he said.

But “nothing can make up for the time I spent in prison unless they gave me 21 years back.”

Marsh, a former bottling plant supervisor, was released from prison in 2004 and shortly thereafter married the mother of the boy he had been convicted of killing. He has a federal civil rights lawsuit pending against San Diego County and a legal malpractice lawsuit against the lawyer who defended him at trial.

The San Diego County district attorney’s office contended during the trial that Marsh had beaten the boy to death, and a jury returned a verdict of second-degree murder. Prosecution experts testified that the toddler’s head injuries could not have been caused by a short fall from a couch.

Retired Deputy Dist. Atty. Jay Coulter, who prosecuted the case, said Thursday he remains unconvinced that Marsh is innocent. Coulter said the evidence did not fit Marsh’s version of what happened.

“If I believed I had put somebody in custody wrongfully, I would recognize that perhaps I relied on bad testimony or some mistaken medical theory, and I would apologize,” Coulter said. “I would feel very badly about that.... But there are too many questions here.”

After lawyers for Marsh filed a constitutional challenge of his incarceration, San Diego County Dist. Atty. Bonnie Dumanis retained a forensic expert to review the case.

That expert said he could not conclude with certainty that Marsh killed the boy. As a result, Dumanis agreed that Marsh should be released.

A hearing officer for the state compensation board, after reviewing the evidence, concluded that an undiagnosed blood disorder and an antibiotic administered after Phillip’s fall contributed to his death.

“It is found that Phillip was injured in the manner described by Marsh,” wrote Kyle Hedum, the hearing officer.

Marsh obtained the award after filing a claim with the state. State law permits former inmates to receive $100 for each day they were incarcerated after conviction if they prove they did not commit the crime or that no crime occurred, that they did not intentionally or negligently contribute to their arrest or conviction and that they sustained a monetary lost as a result of their imprisonment.