On April 27, 1983, Kenneth Marsh was babysitting the children of his girlfriend, Brenda Buell Warter, at their home in San Diego, California. Phillip, 2 1/2, and Jessika, 1, were sitting on the couch when Marsh stepped out of the room to get the vacuum cleaner. Hearing a crash, Marsh rushed back into the room to find Phillip lying on the floor, unresponsive. He appeared to have fallen off the couch and hit his head on the brick fireplace hearth. Marsh called 911, and Phillip was immediately taken to the hospital.
Phillip had many health problems, including a bleeding disorder, and he had suffered from internal bleeding two months earlier. Despite this medical history, on the way to the Children’s Hospital, a doctor injected Phillip with Mannitol, a drug that increases blood flow and aggravates hypertension in the brain. Phillip’s brain continued to swell and his pulse and blood pressure dropped. He died the following day.
Doctors at the Children’s Hospital were quick to assert that Phillip’s death had been caused by abuse. Even before an autopsy had been performed, a doctor told Brenda Warter that her son had been murdered. Warter was sure that Marsh had nothing to do with her son’s death, and an investigation by the San Diego police department concluded that the death was accidental. However, the doctor who performed the autopsy – a Children’s Hospital pathologist who had no forensic experience – found that Phillip had died from a “non-accidental” injury. At the urging of doctors at the Children’s Hospital, the District Attorney’s Office decided to prosecute, and on June 30, 1983, Marsh was charged with murder.
At trial, the prosecution called several doctors from the Children’s Hospital, who testified that a short fall could not have caused Phillip’s fatal head injuries, and that Marsh must have beaten Phillip to death. Marsh’s attorney was unable to find any experts to refute this testimony. On November 28, 1983, Marsh was convicted of second-degree murder and sentenced to 15-years-to-life.
In 1984, Marsh petitioned to the California Court of Appeal for the 4th District, citing insufficient evidence to convict, but the Court upheld his conviction in 1985. A 1986 habeas corpus petition was denied by the Superior Court of San Diego. In 1995, Marsh’s attorney filed a second habeas corpus petition based on newly discovered medical evidence that Phillip’s death was accidental. In November 1995, the Superior Court again denied Marsh’s habeas corpus petition.
Throughout the appeals process, Brenda Warter remained convinced that Marsh was innocent, and worked relentlessly to get him a new trial. Eventually, Warter convinced attorney Tracy Emblem to take on the case pro bono. In 2002, Emblem and the California Innocence Project filed a 180-page petition for a writ of habeas corpus, based primarily on declarations by medical experts who concluded that much of the medical evidence used to convict Marsh was inaccurate, and that Phillip could have died from a short fall in combination with the injection of Mannitol. The District Attorney agreed to allow Dr. Sam Gulino, a deputy medical examiner from Florida, to review the evidence, and Dr. Gulino found that there was not enough evidence to convict Marsh. On August 10, 2004, a Superior Court judge set aside Marsh’s conviction and he was released from prison that same day, after 21 years behind bars. A month later, all charges were dropped. In 2006, Marsh was granted $756,900 from the state in compensation for his wrongful imprisonment.
- Alexandra Gross