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Declaration by: Kathie L. Marsh, Ken Marsh' Sister-in-law
I, KATHIE L. MARSH , declare:
1. I am the sister-in-law of Ken Marsh who is serving a 15-year to life prison sentence for the death of Phillip Buell. Phillip died on April 28, 1983. I am submitting this declaration in support of the instant petition for writ of habeas corpus. I can competently testify to the following:
2. I was at petitioner's trial in November 1983. When the trial started there was absolutely no medical evidence that his defense counsel was going to present in petitioner's behalf. I recall the only testimony he was going to present was character witness testimony.
3. I recall a few days after the trial began, that my husband and Peggy Lynch, who are the petitioner's brother and sister, and Dave Henning, Peggy’s neighbor, were talking about the opening statement and what the prosecution doctors were saying about Phillip's injuries at Peggy’s house.
4. Dave Henning did not know Ken personally. Dave Henning was a respiratory therapist and he disagreed about what Dr. Chadwick was saying about the timing of Phillip's injury and the timing of his death. I remember that Dr. Chadwick was claiming that Phillip had to have been dead for a while before the paramedics were called.
5. I recall that Peggy asked Dave Henning to talk to Ken's attorney, Frank Nagoette. Dave agreed to testify and was the only witness with a medical education to testify for petitioner.
6. Prior to trial, I remember telling Frank Nageotte that Phillip was very sick that there was something wrong with Phillip before he died. I remember that Phillip was always so pale before he died. He never had good skin color. Ken's attorney did not ask me any questions about Phillip's illness when I testified at trial.
7. Ken has the most patience I have ever seen with children. I saw him around my own children and Jessika and Phillip. Whenever he had to discipline the children he would always talk to them in a very calm voice.
8. I am very upset that Phillip's illness was not brought out at trial. I was very upset that the District Attorney showed Phillip's autopsy photos on a large screen. I and other family members moved over in the courtroom to avoid seeing those pictures. Then he used it against us as character witnesses to say we didn't want to see what happened to Phillip.
9. I am very disturbed over the injustice that I feel that occurred in this case. Ken and our entire family suffered and we are still suffering from his imprisonment. I pray that this time someone will look at all of the evidence, including Phillip's medical history in an unbiased manner. I am personally asking this court to re-open the case and review it.
10. I wrote letters to the court and to the parole board. Despite years of claiming his innocence, the parole board will not parole him because of the crime and because he refuses to admit his guilt.
11. When the jury came back with the verdict, I recall the judge who heard the case said he wasn't sure if he agreed with the verdict but he wouldn't take it away.
I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct.
Executed at _________________, San Diego, on October, 2002.
By: KATHIE L. MARSH
