Fatal Abuse or Tragedy Compounded?
Ken Marsh said he fell in love with Brenda Buell when they met at a dinner party in 1979, though he was married and she was there with someone else. Years passed before he confessed his feelings. Buell, by then married and pregnant with her second child, rebuffed him.
She said she gradually came to realize that she loved Marsh back. They both obtained divorces, and Marsh moved in with Buell and her two children in late 1982.
While Buell worked days for a wholesale flower market, Marsh managed a bottling factory at night and operated a painting business on the side.
Her parents and her sister helped with baby-sitting, but on April 27, 1983, Marsh was alone with Phillip, 2 years, 9 months; and Jessika, 18 months.
Buell was delivering flowers when she learned that Marsh urgently wanted her to call home. He was crying when he answered the phone.
He told her that Phillip had fallen off the couch and lost consciousness and was taken by ambulance to the hospital. Marsh had stayed behind with Jessika.
Buell raced to San Diego’s Children’s Hospital and Health Center, where a doctor gave her the grim prognosis.
“Phillip is not going to make it,” she said he told her. “He has been beaten to death.”
“No! No! No way!” she remembers crying.
Later that day, police took Marsh’s clothes and blood and hair samples and scraped under his fingernails for evidence. Social workers took Jessika into protective custody and told Buell to stay away from Marsh.
She did not believe that he had hurt her son, “not for one second.” But that was not the way Dr. David Chadwick, head of the Children’s Hospital child abuse unit, and the district attorney saw it.
Phillip died at a time when child abuse investigations were escalating nationally, when doctors and prosecutors newly alerted to the danger searched for its signs, and when the media grabbed the issue and the sensational cases it produced. The McMartin Pre-School child sex abuse scandal would explode only months later in Manhattan Beach.
For Buell, 1983 marked the start of a 21-year fight to reclaim her family and her life, and to find out why her son had died.
After Phillip was removed from the respirator, Buell wanted desperately to see Marsh. They met secretly at a park and held each other and cried. She was 22; Marsh, 28.
He told her that he had been tidying the kitchen while the children waited in the living room for “Sesame Street” to come on television, Buell said in an interview.
He noticed them standing on the couch looking over its back, where Phillip had dropped his Mickey Mouse book.
Marsh said that he went to retrieve it and that when he pulled out the couch, he noticed dirt and debris. He said he told the children to sit still and left the room to get a vacuum.
On his way out, he said, he heard a crash. When he returned he saw Phillip lying on his side next to the brick hearth below the couch.
He put a towel under Phillip’s head, which he said felt “mushy,” and called 911. Paramedics arrived within five minutes.
When he finished telling her the story, Buell told him he was not to blame. Later, she sneaked him into the funeral home to see Phillip’s body. When she and her family stood at his graveside for the burial, Marsh watched from a nearby hill.
Buell insisted to the doctors at Children’s Hospital that Marsh would not have hurt Phillip. “As a mother, I would have known if there was anything besides pure love between Ken and Phillip,” she said in a recent interview.
She told them that Phillip had been sickly. In the months before he died, she had taken him to the doctor repeatedly for vomiting, a distended stomach, hair loss, stomach pains and severe bruising. He had even been hospitalized.
Medical records showed that he had been diagnosed with mononucleosis. He had also injured himself after slipping out of his booster seat, falling on a toy and, in another incident, off his tricycle, Buell told doctors.
His regular visits to the doctor and the emergency room had prompted one doctor to ask for a child abuse investigation. It determined that the suspicion was unsubstantiated.
When Chadwick saw the medical records, Phillip’s catastrophic head injury seemed even more suspicious. Phillip’s prior injuries coincided with the period in which Marsh had lived with Buell.
Chadwick related his views to Deputy Dist. Atty. Jay Coulter, a prosecutor with whom the doctor had worked on cases before.
Coulter trusted Chadwick’s medical opinion. He thought so highly of Chadwick that years later Coulter would ask the doctor to speak at his retirement party.
Coulter, who found prosecuting child abuse to be the most satisfying work of his long career, never doubted that Buell “loved Phillip as much as a mother could possibly love a child.”
But he believed that she was “in denial.” He said he had seen this happen before. His office charged Marsh with murder, and Chadwick became his star witness.
Chadwick, now 79, is described by Children’s Hospital as a “world-renowned pioneer in child abuse prevention.” The hospital credits his research with establishing the first law requiring doctors to report suspected child abuse.
At trial, Chadwick testified that Phillip’s injury could not have been caused by a short fall from a couch.
Although the prosecution did not present a theory about how Phillip died, Chadwick told the jury: “I think being swung by the feet and having his head swung up against the wall would have done it.”
Buell wept and shook her head. She wanted the jury to see that she disagreed. If Chadwick were correct, there would have been more bruises, she said in an interview.
Phillip’s medical history was not introduced into evidence. The defense feared it might backfire by suggesting a history of abuse, even though Buell and her family said the boy’s prior injuries had occurred at times when Marsh was not with him.
Buell told the jury that Marsh was difficult to anger, and, in her opinion, innocent. Her mother and sister echoed those views in their testimony, and Marsh’s ex-wife said in a declaration that he had never abused his own children.
Marsh took the stand, and the jury learned that he had a criminal record. When he was 20, he, his cousin and brother picked up a hitchhiker. His cousin pulled an unloaded gun on the hitchhiker, Marsh said, and robbed him of $9.60. Marsh received 120 days in jail and three years’ probation.
Coulter, in his closing arguments, reminded jurors that not one doctor who treated Phillip believed that he was injured the way Marsh said. The prosecutor also said Marsh had deluded Buell and others.
“I would ask you to consider very carefully whether or not the character witnesses really have the full story as to what kind of person Mr. Marsh is,” Coulter said.
On Nov. 28, 1983, the jury found Marsh guilty. He had earlier rejected a plea bargain that would have meant less than six years in prison. He said he would not plead guilty to something he didn’t do.
A judge sentenced him to 15 years to life for second-degree murder.
Buell lost custody of her daughter for a year after Phillip’s death. She moved in with her parents, who had legal care of Jessika.
“As long as I wouldn’t say Ken hurt Phillip, I couldn’t have custody of Jessika,” said Buell, who has dark red hair and hazel eyes. “They said I was clouded.”
She reconciled briefly with her ex-husband and became pregnant. She feared having a boy. Every time she saw a little boy, she wept, she said.
Her grief for both Phillip and Marsh was “all one big heavy rock.” After the birth of her second daughter, Melissa, Buell regained custody of Jessika. By then she was no longer required to agree that Marsh had harmed Phillip. But child protection workers warned that she would lose both children if she had any contact with him. She did not visit him in prison and wrote him letters under a different name.
Hoping to prove Marsh’s innocence, Buell obtained Phillip’s medical and autopsy records. She wrote letters to governors, presidents and prosecutors, asking them to intervene.
She pored over medical journals and newspaper articles at the library, searching for information on head injuries from short falls, and on Dr. Chadwick, whom she blamed for Marsh’s prosecution.
In the years after the conviction, San Diego grand juries and news reporters began investigating abuse cases in which suspects were later vindicated.
They questioned whether Chadwick’s child abuse division, now called the Chadwick Center for Children and Families, had been overzealous. One grand jury report found “serious problems” with the unit.
In a 1985 Times interview, San Diego County Coroner David Stark, who has since died, conceded that Chadwick could be single-minded. “Sure, I’ve said, ‘Dave, you’ve got tunnel vision; you think every kid’s a battered kid,’ ” Stark said.
But Buell’s crusade to vindicate Marsh was failing. By the mid-1990s, she was losing hope. A state Court of Appeal had concluded that the evidence “unerringly points to child homicide by a battering adult.”
Marsh, however, had faith in Buell. He wrote her two or three times a week.
“As long as Brenda said she would fight, I knew she would,” he said. “What kept me alive and kept me going was the hope I would get out and I would be with her.”
Buell contacted Tracy Emblem, an Escondido lawyer, in 1996 and showed her the files she had collected. The attorney said she was struck that Marsh’s prosecution had occurred at a time when San Diego and the rest of the country were obsessed with child abuse.
She showed Phillip’s medical records to her sister, a registered nurse. “ ‘My God, this kid was sick, Tracy,’ ” Emblem recalled her sister saying.
The attorney interviewed the homicide detectives on Marsh’s case. “In their opinion it was not until the doctors got involved and really pressured everybody that Ken got prosecuted,” she said.
“In my 31 years of working for the San Diego Police Department, Ken Marsh’s was the only case that I ever had any questions on and in which I believe that an innocent man was convicted,” Det. Ted Armijo, who retired in 1993, said in a sworn declaration.
Emblem and Buell searched for forensic doctors to review Phillip’s case, although they had no money to pay them.
“I would have Brenda write and just beg them,” the lawyer said. “It’s really hard to get someone to work for free.”
Slowly, Buell accumulated 15 boxes of evidence. On Oct. 21, 2002, Emblem filed a constitutional challenge, arguing that the medical testimony that convicted Marsh was based on theories now known to be false.
A few months later, Buell made an appointment with Bonnie M. Dumanis, who had just been elected San Diego district attorney. Buell, her mother and her sister laid out their case in a meeting so intense that Buell said the D.A.'s aide cried.
A former judge, Dumanis said she tried to evaluate the evidence without “being stuck in any one position.” Some of her top deputies remained convinced of Marsh’s guilt.
Dumanis asked Dr. Sam Gulino, a forensic pathologist in Florida, to review Phillip’s medical records.
Gulino concluded that the death could have been accidental. Dumanis’ investigation had taken about a year, but once she received Gulino’s report, she moved quickly to get Marsh out of prison.
“For the past 21 years, Mr. Marsh has maintained his innocence,” Dumanis said in a statement in August 2004. “Now there is new evidence that points to reasonable doubt in this case. We feel we have an ethical obligation to do the right thing based on this new information.”
On Aug. 10, 2004, Marsh walked out of prison, and a month later, Dumanis announced that she would not retry him.
Marsh and Buell married that October. In January of this year, the state victims compensation board found Marsh innocent and awarded him a record $756,900 for the 21 years he spent behind bars. The panel determined that Phillip had a blood disorder and that his medical treatment contributed to his death.
“Phillip was injured in the manner described by Marsh,” the California Victim Compensation and Government Claims Board found.
Brenda, whose last name is now Marsh, quickly discovered that her husband was not the same man she had known when she was young. He was fearful and nervous.
Even now, almost two years after his release, Marsh becomes clammy and nauseated if Brenda is not at his side. He begs her not to leave him.
She said she must even leave the bathroom door ajar.
“He used to be so secure,” said Brenda, now 44, clasping his hand on the family room couch at her mother’s home.
The couple have been seeing a counselor, who diagnosed Marsh with separation anxiety and post-traumatic stress disorder.
“It’s scary for me, because I have no control over it,” said Marsh, 51, tall and lean with large brown eyes and dark hair now streaked with gray. “I see how it affects her, and I wish there was something I could do about it.”
When Brenda talks on the telephone, she paces, her sister said. Marsh follows right behind her, and the dog trails him, the three circling the rooms.
Brenda sometimes loses patience and snaps at him, but softens when she sees “the desperation” in his eyes.
She said he fears he could lose her again, that his life could suddenly be turned upside down as it was that April morning when Phillip was raced to the hospital.
At one point during a lengthy interview, Brenda stood up and moved to the adjoining kitchen. Marsh looked flustered, hesitated a minute, and then followed her.
“OK, I’ll sit down,” she said patiently.
“I am sorry, baby,” he told her.
Marsh has filed a federal civil rights lawsuit charging that Chadwick and other doctors diagnosed child abuse to cover up a treatment mistake that Marsh’s experts say doomed Phillip.
A Children’s Hospital physician had given mannitol, which is commonly used to reduce swelling after a head injury, to Phillip. Four defense medical experts believe that the medicine actually worsened Phillip’s condition, because he suffered from a blood disorder as a result of long-standing mononucleosis infection.
“Instead of evacuating the fluids away from the brain, it actually deposited the blood there,” said Donnie R. Cox, one of Marsh’s lawyers.
Or, as Brenda put it, “they exploded his brain.”
A handwritten code on Phillip’s preliminary death certificate, signed by the San Diego coroner in May 1983, listed poisoning by antibiotics as a cause of death. The final death certificate, issued in July after Marsh’s arrest, did not mention poisoning.
Prosecution experts said Phillip had no blood disorder.
“It’s all nonsense,” Chadwick, still convinced of Marsh’s guilt, said in a brief interview.
But the state claims board concluded that mannitol was a contributing cause of death.
Colin H. Murray, who is representing Children’s Hospital and Chadwick, said the doctors gave Phillip appropriate care and had strong reasons to believe the boy had been abused. Murray called Chadwick’s 35-year career “impeccable.”
“This is a little boy who had a six-month history of bruises, intra-abdominal bleeding, abrasions and, lo and behold, ends up in a hospital” with a severe head injury, Murray said. “That is a history that is consistent with child abuse.”
Deborah A. McCarthy, senior deputy San Diego county counsel, said, “There is ample evidence that there was a murder committed.”
But Supervising Deputy Atty. Gen. James D. Dutton, who represented the prosecution at the state claims board hearing, agreed with the state that the evidence showed Marsh was more likely innocent than not.
“It is a sad case,” Dutton said.
The couple moved last month to a nearby state, where Brenda’s older daughter lives.
Marsh said San Diego had too many bad memories.
“It hurts what they did,” he said, but added that his suffering was secondary to Brenda’s.
“She lost her child,” he said. “She lost a part of her. They took a piece of her. That is what the tragedy is.”
Marsh looks forward to a finding a home in the country “where there is room to move around,” a garden and water geese.
Brenda expects to have a grandchild soon and wants the baby to be named Hope. She said she can’t wait to help rear the child with Ken.