* In 1983, the prosecution charged petitioner with Phillip's childabuse death, despite the homicide team's opinion there was not enough evidence to charge petitioner. The scene was consistent with petitioner's account of Phillip's accidental fall. 

* The coroner investigated Phillip's death and wrote that no medical records were considered. The pathologist who performed Phillip's autopsy was from the same hospital where he was transported for treatment. The pathologist misstated the number of years he worked for the coroner to bolster his credentials in front of the jury. This is not a matter of semantics, but a matter of perjured testimony. 

* The prosecution doctors held group meetings about Phillip's death before petitioner was charged with murder despite the police investigation and opinion that there was insufficient evidence to charge him of murder. Apparently based on the prosecution doctors accusations, the District Attorney charged petitioner with the offense without conducting its own investigation.

* Despite hearing almost no medical testimony in his defense, and although gruesome blow-ups of autopsy photos were shown to the jury, the jury was nearly hung.

* By 1985, Respondent and the Coroner's Office were aware that there were problems in relying on Children's Hospital pathologists to conduct autopsies in medico-legal cases. Respondent should have opened an independent inquiry as to whether petitioner was wrongly convicted. 

* In 1995, when petitioner sought review of his false conviction, the court was unaware that Phillip had Bradycardia after being administered Mannitol.  

* Judge Murphy was also unaware of the Pfingst memo indicating that he did not consider Chadwick a credible expert. In addition, there were contemporaneous Grand Jury reports of the over zealous prosecutions pressed by Dr. Chadwick and the child protection team. The People rely heavily on grand juries to obtain indictments, but in this case choose to down play the grand jury's findings and impugn its relevance. 

* Judge Murphy ruled on the 1995 habeas petition without learning that Dr. Barbara Wolf, formed an opinion that the petitioner's presentation was "hogwash" before reviewing Phillip's medical records, making a case for the conclusion desired.  

* Judge Murphy was unaware that three meetings in a group think process were held; or that the coroner's investigation report stated no medical history was considered; or that there was code number 9608 (poisoning by other specified antibiotics - toxic reaction categories) written as the ICD code on Phillip's death certificate related to his cause of death; which knowledge would have made a difference in whether he granted an evidentiary hearing in that proceeding. 

* In 2003, District Attorney investigator Thill's superficial investigation was focused on anything that could possibly incriminate petitioner whether it was accurate or not. For example, Thill did not interview percipient witnesses and he made misleading statements in his declaration.  

* Instead of objectively examining the autopsy and medical record and physical evidence, the District Attorney primarily prevailed on the same doctors who wrongfully accused petitioner. These doctors have incentive to defend their prior opinions. The County Medical Examiner, Dr. Blackbourne's 3/12/03 letter report indicates he was not provided with petitioner's expert declarations of Drs. Reiber, Schweller and Innis. Blackbourne has buckled to Dr. Chadwick's pressure in other cases. In one case, Dr. Blackbourne changed the death certificate from "undetermined" to "homicide" after Chadwick urged him to reconsider. In the instant case, Petitioner received in discovery a handwritten note that states "Per Chadwick - 5 impact sites. . ." The exact same amount of impact sites purportedly found by Dr. Blackbourne in his 3/12/03 report and now scientifically refuted by Drs. Reiber and Ophoven. 

* Dr. Case is not a credible expert. The prosecution submitted her four paragraph declaration that does not provide a foundation or basis for her opinion. The Case, et al. position paper on Fatal Abusive Head Injuries in Infants and Young Children, relied upon by Drs. Chadwick and Williams, was rejected for publication in the Journal of Forensic Medicine during the peer review process. The Case paper has substantial flaws and cannot be considered as reliable authority or based on accepted scientific methods. In other words, it fails the Kelly test. Dr. Case's critical reasoning has recently been questioned in another fatal head injury case in Florida where an innocent father was freed after serving three years in prison. 

* Dr. Roberts was procured by Dr. Cindi Kuelbs who is the Director of the Chadwick Center at Children's Hospital (the Child Protection team). Dr. Chadwick is still the Director Emeritus of that Center. Dr. Roberts has also misstated an important blood test lab result in his declaration. 

* Dr. Barbara Wolf not only prematurely formed an opinion in 1995, she omitted many important medical facts from her analysis and was very inexperienced. In May 1995, when she reviewed the case, she had only been "board certified" in forensic pathology for one year. Her forensic pathologist credential was grandfathered rather than by way of rigorous forensic training. She therefore lacks valuable forensic experience. Even as recently as March 2004, in a New York murder case that resulted in an acquittal, Dr. Wolf admitted that she is unfamiliar with toxicology! 

* Herein, petitioner presents evidence from nationally recognized experts. Dr. Greg Reiber is from U.C. Davis Medical School. He often testifies for the prosecution in Sacramento and he has testified for the defense. He is not an advocate for any one party. He presents at Attorney General training and other symposiums. He has served on child trauma death committees. Dr. Reiber has testified that Phillip's death was not murder but an accidental fatal short fall. He has done so because he found that the testimony presented at petitioner's trial was misleading and resulted in an injustice.

* Dr. Jan Leestma is a nationally acclaimed neuropathologist. He has provided expert opinion for the San Diego District Attorney's Office before in other cases. In fact, Dr. Leestma provided the agency with an expert opinion in the Neaves case, where Dr. Chadwick zealously urged prosecution without providing all of the medical evidence. In that case, the District Attorney accepted Dr. Leestma's report as a prominent expert. His findings that Phillip's injuries were consistent with petitioner's account of an accidental fall should be accorded equal value here. Dr. Leestma also finds the prosecution doctors' assertions that Phillip's injuries were equivalent to those generated during multi-story falls or high speed motor-vehicle accidents, complete nonsensical extrapolations unsupported by any scientific literature. 

* Dr. Janice Ophoven has a clinical practice in pediatric forensic pathology. She also proclaims that Philip sustained injuries consistent with the fall and that the prosecution doctors have not performed an adequate differential diagnosis. 

* Dr. Schweller is double boarded in pediatrics and neurology. He says that Phillip's brain swelling was exacerbated by the Mannitol. His contentions are documented in the medical records. 

* Dr. Innis is an internationally known hematologist who says Phillip had a long standing Mononucleosis infection. While his initial diagnosis of hepatitis was made without being able to examine the autopsy sample, his finding that Phillip had longstanding infectious mononucleosis is born out by the examination of the spleen slides by petitioner's other experts. Phillip was not a 'normal' healthy child. 

* Dr. Kirk Thibault is a nationally known pedicatric head injury biomechanical engineer. He says the kinematics of a fall from an elevated surface as dictated by the laws of physics, the location of the point of impact in the left occipital region of the head and neck, and the location and orientation of the position of rest, on the floor adjacent to the fireplace hearth are consistent with a fall. Dr. Thibault also finds the prosecution doctors' assertions that Phillip's injuries were equivalent to those generated during multi-story falls or high speed motor-vehicle accidents, without any specific discussion of the actual loading conditions, are arbitrary and unscientific. 

* The prosecution's own literature, the 1987 Nimityongskul/Anderson article states that fatal falls can occur when a child's head impacts a concrete surface from a height as low as 1 ft. 

This case is about false medical theories, false testimony, and testimony based on science that could not meet the Kelly threshold, in other words, junk science. It is a travesty for Ken Marsh and Phillip's maternal family that Phillip's cause of death and his previous medical symptoms have never been impartially evaluated by the People. This is a case where the homicide team did not believe the doctors were correct in accusing child abuse murder because Phillip's injuries and petitioner's account were consistent with an accident and the evidence at the scene.  

This is not merely a case of one expert's opinion against another. Rather, there has been extensive medical record information overlooked or discounted by the prosecution. There was padding of credentials, assumptions without evidentiary support and testimony based on non-scientific methodology used to convince a jury to falsely convict the petitioner. The advancement of science over the past 21 years makes it very evident Ken Marsh was wrongfully convicted.

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