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Declaration by: Tracy L. Emblem, Attorney
I, TRACY L. EMBLEM, declare as follows:
1. I am a licensed attorney in the State of California since December 1989. I represent the petitioner, Ken Marsh. I am submitting this declaration in support of filing the instant petition for writ of habeas corpus. I can competently testify to the following:
2. I have fully reviewed the trial and appellate record in Cases No. CR64376, D001428 and HC 13707 and trial counsels files.
3. On 11/28/83, petitioner, Ken Marsh was convicted of the second degree felony murder of Phillip Buell in San Diego Superior Court, Case No. CR64376 and sentenced to a 15-year to life prison term. His conviction was affirmed on appeal by this court in Case No. D001428 (People V. Marsh (1985) 175 Cal.App.3d 987) on 12/18/85.
4. On 4/7/95, Attorney David Thompson filed a petition for writ of habeas corpus in the San Diego Superior Court, Case No. HC 13707 on behalf of the petitioner. An order to show cause was issued. Exhibit 121 is a true copy of the petition, order to show cause, return, reply and judgment.
5. The habeas petition in Case No. HC 13707 was based on newly discovered medical evidence and alleged that Phillip had a preexisting bleeding disorder. The petition was denied on 11/2/95, without an evidential hearing. The court found that the petitioner had raised new controversies surrounding Phillip's death. However, it concluded that the evidence proffered in support of the petition did not point unerringly and conclusively to the petitioner's innocence.
6. The deceased mother, Brenda Buell Warter first contacted me sometime near the end of January 1996 asking me to review the prior habeas pleadings pro bono and determine if an "appeal" was warranted. The documents provided to me from Attorney Thompson's office included memorandums, a rough draft of the initial 1995 habeas petition, limited correspondence, the petitioners 1983 opening brief on appeal, the habeas petition and court filings in Case No. HC 13707, a sample habeas petition, and portions of the trial and preliminary testimony from petitioner's trial.
7. Upon my preliminary review of Attorney Thompson's pleadings, I told Ms. Warter that the facts I read in the habeas petition warranted further investigation. I also asked Ms. Warter to get the petitioner's attorney-client files that were still in Attorney Nageotte's (petitioner's trial counsel) possession.
8. One of the issues I felt needed review was whether the petitioner received ineffective assistance of counsel at trial. Attorney Nageotte initially refused to turn over the petitioners files to Ms. Warter without a written release from petitioner. I prepared and sent a release form to the petitioner. I recognize Exhibit 56 as the release forms that I prepared for petitioner which he executed and returned to me so I could obtain his attorney-client files.
9. Ms. Warter thereafter brought me two boxes of attorney-client files that she obtained from Attorney Nageotte. I immediately had every document in these files Bate stamped to insure proper documentation of petitioners original files. I made a courtesy set of Bate stamped documents for Attorney Nageotte.
10. During February and March 1996, I began review of some of the records.
11. I contacted the San Diego County District Attorneys (D.A.) Office requesting information and that evidence pertaining to petitioner's case be preserved. I also asked the D.A.'s cooperation because I felt it was necessary to fully review all available information in the petitioner's case before seeking further court review. I recognize Exhibit 58 as my letter to the District Attorney dated 2/27/96.
12. I recognize Exhibit 59 as my letters to the D.A. dated 3/7/96, 3/ 22/96 and 3/29/96. The D.A.'s Office was uncooperative.
13. I also asked Ms. Warter to help me locate a forensic pathologist who was experienced in reviewing child abuse death case. Around March 1996, Ms. Warter contacted Dr. Gregory Reiber in Northern California who agreed to review the evidence submitted in Attorney Thompson's declarations. Dr. Reiber provided me with his initial opinion that Phillip's death was accidental.
14. During my preliminary review of the petitioner's attorney-client files, I discovered that Deputy District Attorney (D.D.A.) Josephine Kiernan had taken custody of two boxes of attorney-client files without his knowledge or consent while responding to the order to show cause in Case No. HC 13707. Based on my review of the habeas petition filed by Attorney Thompson, it was my opinion that D.D.A. Kiernan was not entitled to take custody of petitioner's attorneys files, because there was no allegation of ineffective assistance of counsel. I recognize Exhibit 54 as the phone memos I found in petitioner's trial files in 1996 which caused me to consider investigation of ineffective assistance of counsel.
15. I contacted Attorney Nageotte to interview him about the phone memos and to discuss his representation of petitioner. Attorney Nageotte refused to cooperate or allow a "witnessed" interview. It was my opinion that I could not conduct an non witnessed interview of attorney Nageotte on this important aspect of the petitioners case without violating State Bar ethical rule 5-210 because I could become a witness. Attorney Nageotte's lack of cooperation hindered my ability to investigate petitioner's potential claim of ineffective assistance of counsel.
16. I also contacted Attorney David Thompson requesting petitioner's files and notes pertaining to his representation of petitioner in Case No. HC 13707. The file produced by Thompson contained sparse documents outside of the petition for writ of habeas corpus already filed in petitioner's behalf.
17. I made a California Public Records Act (CPRA) request to the San Diego Police Department seeking records pertaining to the police investigation of the petitioner's case. I recognize Exhibit 62 as one of my CPRA letters to the San Diego Police Department and Exhibits 60 and 63 as the agencies response denying me access to any police investigation records.
18. On 4/9/96, D.D.A. Kiernan sent a letter that cited People v. Gonzalez (1990) 51 Cal.3d 1178, 1259. She advised me that "no information materially favourable to [my] client" had come to her attention. I recognize Exhibit 61 as a copy of this letter. D.A. Kiernan would not cooperate with me at all or provide me with any of the D.A.'s records.
19. At the time, I was investigating petitioner's case in 1996 and asking for access to petitioners records, I was unaware that the District Attorney had prosecuted petitioner in an irregular manner. I was also unaware that Dr. Roger Williams had performed an incompetent autopsy as alleged in the instant petition. I was further unaware that the National Medical Examiners Association (N.A.M.E.) conducted a review of the Coroners Office in 1985 (near the same time period of petitioners conviction) or that the agencies knew of several flawed/incompetent autopsies. Had I known this information, I would have immediately sought to reopen petitioner's case. There was no mention of these facts in the petition filed by Attorney Thompson, Case No. HC 13707.
20. In June 1996, Dr. Paul Wolf, who had submitted an expert forensic declaration in the prior habeas petition for Attorney Thompson, provided me with additional information, Exhibit 64, a new test that he claimed positively established that Phillip had the EB Virus when he died. I recognize Exhibit 64 as the test and hematology articles that Dr. Wolf provided me.
21. Based on the preliminary information, I advised Ms. Warter that petitioner would need to locate experienced criminal trial and appellate counsel to investigate his habeas claims. I also told Ms. Warter that the petitioner's case should not be submitted to the appellate court without doing a thorough factual and legal investigation.
22. During the seven-month period that I performed my preliminary investigation of petitioners case, I did not have a complete record of testimony from the petitioners 1983 trial. I reviewed the prior habeas petition and some of the files in the two boxes of trial counsels files. With the help of Ms. Warter, we located Sgt. Ted Armijo who was the homicide detective team leader who investigated the petitioner's case. We then began an effort to locate pro bono experts.
23. I tried to locate pro bono legal assistance for the petitioner. For example, I contacted attorneys Elizabeth Barranco, Christopher Plourd, Jack Early, and Michael McGlinn, and others. Because petitioner's case is complex and involves a successive habeas petition, I was unable to find anyone to represent him. In July 1996, I reluctantly advised Ms. Warter that she should continue searching for legal help on the case since it was too complex for me and my ability to investigate had been shut down.
24. In August-September 1996, I turned over the files to the San Diego County Public Defenders Office who agreed to continue review of the case.
25. During the month of June 2001, Ms. Warter called my office, crying, and begging me to take back the case and investigate it because she had not been able to locate any attorney willing to take on the amount of work required to fully investigate the case. I agreed to represent petitioner, but only if Ms. Warter could obtain trial counsels cooperation and allow a witnessed interview with a licensed private investigator present.
26. From June 2001 to the present, I was committed on other cases, People v. Torres, Case No. D037455; People v. Rosales, Case Nos. D036897 and D039052/Habeas petition; People v. Thomas, Case No. D037044 and Self v. Roe, (Ninth Cir.) Case No.
00-56482, Quini V. Paradise Hospital, Case No. D039317 and Brown v. Superior Court, Case No. D039525. In addition to my case load, I had to undergo major surgery on 8/17/01, with a six week recovery period. This is a complex case. In order to investigate petitioner's claims and organize it for presentation to this court, I have expended over 2000 pro bono hours. I was informed by the appellate project that successive habeas petitions are not favoured by the court. It was my opinion, petitioner's case required exhaustive review.
27. Around 11/12/01, I began to summarize the medical evidence in petitioner's case. There are over 2600 pages of Bate stamped documents in the attorney-client files. Petitioner's case is an extremely complex in that the sole evidence of his guilt was the testimony of several prosecution doctors who opined that Phillip Buell was a battered child because his head swelling injuries could not be adequately explained by a short fall. In addition, the decedent had an extensive hospitalization record from Kaiser which had to be investigated for preexisting hematology symptoms.
28. In the documents provided to me by Attorney Thompson, other than his statement of the facts in the habeas petition and the statement of facts in the appellate brief, there was no work-product summary of the preliminary hearing and trial testimony,
no work-product summary of the documents in trial counsels files, and no work-product summary of the medical record evidence.
29. When I began reviewing the files in 2001, I did not find any evidence that the Public Defenders Office had conducted any further investigation of petitioner's case. In fact, I found no additional work-up or investigation by anyone since 1996.
30. I had to locate copies of missing testimony and clerks records from petitioner's 1983 appellate record in order to fully evaluate petitioner's claims. Attorney Thompson did not have a complete trial record when he drafted his habeas petition in 1995. Additionally, since November 2001, I prepared extensive work product summaries of the decedents medical records and the trial and preliminary testimony before beginning my forensic investigation into petitioner's claims.
31. In the course of preparing these medical summaries, I discovered that Dr. Barbara Wolf, the doctors who submitted a declaration about Phillip's mononucleosis and bleeding disorder in Case No. HC 13707, was under a misconception that there were only two positive mono spot tests. Phillip tested positive for mononucleosis on 1/5/83, 2/10/83 and on 3/4/83. I also discovered a 2/23/83 patient record reporting another EB Virus study pending (2433), leading me to conclude a full forensic investigation had not been done by anyone.
32. In the course of reviewing all of trial counsels files which were bate stamped and copied for counsel, I found no emergency call or radio communication evidence. I discovered that there were no C.V.'s in defense counsels files.
33. I went to the UCSD library to research old newspaper articles about Children's Hospital and the Coroner's Office. I discovered several articles including a Los Angeles Times article involving the San Diego County Coroner's Office and Children's Hospital. Exhibit 67 is a copy of one of the articles entitled "Children's Hospital Links to Coroner's Office Questioned" that I found.
34. After reading this article, I scrutinized the Coroner's report from 1983. I discovered that there was a date on the bottom of the last page of the Coroner's report which indicated that petitioner was prosecuted before an official cause of death by the Coroner's office had been established. The only death certificate in petitioner's file was an interim death certificate issued on 5/2/83, Exhibit 1, that listed Phillip's cause of death as "pending." Exhibit 1 is a true copy of the pending certificate that was in the petitioner's files. Ms. Warter then obtained a two-page certified copy of Phillip's death certificate, Exhibit 68, from the County Records Office on 11/28/01. Exhibit 68 is a true copy. I also discovered that there were no records of any interviews with the Coroner's investigator, D.B. Lodge in petitioner's trial files.
35. In mid-December 2001, I went to the Carlsbad Public Library to research old articles from the San Diego Union. I found Exhibit 72, an article regarding the Coroner's Office published on 1/26/81.
36. Exhibit 69 is a copy of an ABA Journal article entitled "Body of Evidence" which I discovered in researching the forensic qualifications required to perform medical autopsies in criminal prosecutions. After reviewing this information and the newspaper article, and reviewing the testimony from petitioners preliminary hearing and summarizing it, and Dr. Williams' curriculum vitae submitted in the District Attorney's return in 1995, Exhibit 70, I had reason to suspect that Dr. Williams' performed an incomplete and incompetent autopsy on Phillip and that petitioner was prosecuted with false and misleading evidence testimony.
37. In my investigation of trial counsel's files, I found Exhibit 23, Attorney Nageotte's handwritten note indicating that there was a dispute between the doctors and
the San Diego Police Department regarding Phillip's manner of death. This note also states that D.D.A. Jay Coulter, who was quoted in Exhibit 67, and who prosecuted petitioner, attended a Child Abuse Committee meeting on 5/18/83 discussing petitioners case with various people present. The memo also suggests that D.D.A. Coulter took notes at this meeting. I did not find any of D.D.A. Coulter's notes from this meeting in trial counsel's files. I also did not find any of Detective Ron Newman's handwritten notes in petitioner's trial files.
38. On 12/12/01, and 1/10/02, I conducted witnessed interviews of Attorney Nageotte. Licensed private investigator, Michael Newman, was also present to investigate what facts Attorney Nageotte did and did not know when he represented the petitioner in 1983. I showed Attorney Nageotte several Bate stamped documents from petitioner's attorney files and his declarations submitted for D.D.A. Kiernan and Attorney Thompson in Case No. HC 13707 in 1995.
39. Exhibit 50 is a 3/31/95 letter from Attorney Thompson to the D.A. that was in the documents provided by Attorney Thompson. Exhibit 47 is a 4/1/95 letter from Ms. Warter to Attorney Thompson that was either a document provided to me by Attorney Thompson or Ms. Warter. Exhibit 94 and 95 are memos that were provided by either Attorney Thompson or Ms. Warter in 2001.
40. On 1/9/02, I conducted a witnessed interview of Attorney Thompson. He told me that petitioner's case was the first habeas petition he had ever filed. During my interview, Attorney Thompson told me about a criminal case called People v. Phinney which was prosecuted after the petitioner was convicted in 1983. He told me the case was factually similar to petitioner's case. He claimed he did not have any existing records from the Phinney case but suggested they might still exist at the Vista Superior Court.
41. During my witnessed interview, I asked Attorney Thompson why he did not investigate the petitioner's case in 1994-95 to determine whether Dr. Williams had performed an incompetent autopsy or bring the Phinney evidence to the court's attention. I did a follow-up interview of Attorney Thompson in May 2002 and he then explained to me why he failed to do so.
42. On 1/15/02, I went to the Vista Superior Court and viewed the remaining records in People v. Phinney, Superior Court Case No. CRN 10112 that are microfiched. Most of the court Phinney files had been purged because Ms. Phinney was found "factually innocent" after the jury acquitted her. I obtained Exhibit 73, a certified copy of a supplemental statement of facts from the preliminary hearing in the Phinney case. I also obtained Exhibits 74, 75, 76, 77, 78 and 79, copies of the court's microfiched records involving the Phinney prosecution.
43. In reviewing the above mentioned exhibits, I discovered that Ms. Phinney had also been prosecuted in a highly irregular manner. A Children's Hospital "contract" pathologist who was not a forensic pathologist, performed the Phinney autopsy. Several of the same doctors that are involved in petitioner's case testified in the Phinney case. Like petitioner's case, the Phinney case involved a seizure and short fall and a long delay in a homicide finding by the Coroner's Office.
44. Thereafter, I went to the Superior Court records index and conducted a search of the Children's Hospital doctors. I discovered that Dr. Ott, the neurologist who testified at petitioner's trial had already been sued for malpractice in three cases, Weems v. Ott (Malpractice), San Diego Court Case 469606, filed 5/6/81; Calderon v. Ott (Malpractice), San Diego Court Case 505114, filed 6/21/83; and Pompilio v. Ott (Wrongful Death), San Diego Court Case 509595, filed 9/22/83 by the time he testified at petitioner's trial. Exhibit 35 is a copy from the Superior Court records index.
45. I further discovered that after 1983, Dr. Ott has had other malpractice cases filed against him: Richardson v. Ott (Wrongful Death), San Diego Court Case 526748, filed 8/27/84; McCormick v. Ott (Negligence), San Diego Court Case 565213, filed 5/27/86; Spear v. Ott (Malpractice), San Diego Court Case 589417, filed 8/20/87; Vogt v. Ott (Malpractice), San Diego Court Case 587507, filed 7/10/87; Grimes v. Ott (Malpractice), San Diego Court Case 597024, filed 3/22/88; Kravitz v. Ott (Personal Injury), San Diego Court Case 615882, filed 9/5/89; Nichols v. Ott (Malpractice), San Diego Court Case 622860, filed 4/9/90; and Fernandez v. Ott (Malpractice), San Diego Court Case 691344, filed 8/9/95. Exhibit 80 is a copy from the Superior Court records index.
46. On 6/20/95 Dr. Ott provided a declaration in Case No. HC 13707 claiming "the child's brain swelled because substantial force was applied to his head from multiple blunt source impact points." His credentials were never investigated by petitioner's trial or habeas counsel.
47. Exhibit 41 is an excerpt from the microfiched record of jury instructions in People v. Marsh.
48. Near the end of January 2002, I went to the San Diego County Board of Supervisors to see if I could locate any information in the microfiche records pertaining to the Coroner's Office's autopsies during the 1981-1985 period. I found Exhibits 81 and 82 on microfiche. I did not know this information existed in 1996 during the few months I had petitioner's case files. Had I known, I would have forwarded this information to petitioner and Ms. Warter.
49. In March or April 2002, I also began trying to locate articles written by Dr. Chadwick. Exhibit 71 is a copy of a letter to the Editor from Dr. Chadwick and Dr. Williams published in the 5/92 Journal of Trauma. Exhibit 93 is an article written by Dr. Chadwick and published in 11/97 in Child Maltreatment. I also went to the UCSD library to research autopsy textbook practice guidelines. Exhibit 92 is an excerpt from the Current Methods of Autopsy Practice published in 1979 reflecting routine autopsy practice in 1983.
50. From 11/12/01, I have been diligently investigating this case. As an additional reason excusing delay from the time I began work on petitioner's case in November, 2001, we have had to locate pro bono medical experts to review Phillip's autopsy and hematology symptoms in Phillip's medical records.
51. On 2/26/02, after finding articles and public records, Ms. Warter and I met with the California Innocence Project staff to present some of this evidence to them. An additional reason for further delay in filing this petition is because I have requested a second review of all evidence and pleadings before filing this case.
52. On 3/22/02, I spoke with Dr. Katsuyama who is a board certified forensic pathologist. Dr. Katsuyama advised me that he contracted with the County of San Diego to perform coroner's autopsies from 1973 until 1989. Dr. Katsuyama explained that he was working under an "oral" contract and usually did autopsies five days a week. He also told me that he did not attend meetings with the Child Abuse Council in determining a cause of death.
53. On 5/22/02 I again spoke with Dr. Katsuyama who agreed to execute a declaration for this case. He estimated that the coroner assigned him between 500 to 700 autopsies per year. Early on he was assigned child death autopsies on an as needed basis.
54. Thereafter, on 6/21/02 I called Dr. Katsuyama to see if he would execute a declaration. He told me that he did not want to get involved, that he had talked with D.D.A. Woody Clark and D.D.A. Chuck Nichol who told him that he does not have to say anything to me, that I could get my information from "public records." Dr. Katsuyama also advised me that if he was subpoenaed he would testify that he does not recall anything even though he worked for the Coroner's Office from 1973 to 1989.
55. On 5/22/02, I wrote to Dr. Gilles advising him that I would need to interview him with my investigator present since he was a defense consultant and he provided a declaration for the D.A. in Case No. HC 13701. On 5/30/02, Dr. Gilles called me and told me that he only spent one hour reviewing the case, that he billed at $300.00 per hour. He told me his review consisted of looking at the autopsy photos and autopsy report and giving an opinion. He told me that he did not review the slides of Phillip's brain microscopically. I advised him that I still needed to interview him with my investigator present. A few days later, on 6/3/02, I received a telephone call from Attorney Laura Mclennan, who represents Children's Hospital Los Angeles. She advised me that she was also representing Dr. Gilles and that I could not interview him or contact him further.
56. In a letter dated 5/16/02 that I mailed and sent by facsimile to D.A. Kiernan and to D.A. Paul Pfingst, I advised them that the victim's family all supported reexamining the evidence in petitioner's case. I asked the D.A.'s Office to allow access to its files. My letter was completely ignored. I never even received a courtesy response to it.
57. Prior habeas counsel Attorney Thompson filed the 1995 habeas petition alleging a bleeding disorder without consulting a hematologist. The additional delay in filing this petition is that I have had to locate a board certified hematologist on a pro bono basis to review Phillip's Kaiser medical records and resolve the issue of his pre-existing coagulapathy. In September 2002, Ms. Warter located Dr. Michael Innis who agreed to consult with me and review Phillip's medical records.
58. Exhibit 20 are true copies from trial counsel's original files that I have in my possession.
59. Exhibit 53 is a true copy of Dr. Landing's Declaration in Superior Court Case No. HC 13701, an attached excerpt from his C.V. and attached testimony of David Chadwick which I showed to Attorney Nageotte during my interview with him.
60. Exhibit 83 is a true copy of the probation report.
61. Exhibit 84 is a true copy from an excerpt from the petitioner's sentencing hearing on 3/2/84.
62. Exhibits 86, 88, 89 and 91 are true copies of excerpts from the petitioner's reported parole hearings that he provided me.
63. Exhibit 90 is a true copy of a 5/27/99 psychological evaluation by Dr. Terrini, a state prison psychologist.
64. I have represented other clients in cases involving medical record review and I have also shown the Children/Alvarado Hospital discovery records in trial counsel's files (1983 records) to a medical records consultant. I have been advised that there are records which should have been maintained by the hospitals under state regulations that were not produced such as blood transfusion records, Mannitol transfusion records, physician orders, medication records, and Phillip's death summary, just to name a few missing records. It is my opinion that some of the medical records from Children's Hospital have gone "missing.".
65. I have completely reviewed trial counsel's files (1983 Kaiser records). Although I find reference to a second E.B. Virus study pending, there is no result. I have reviewed the medical record copies provided by Kaiser in July 2002. The E.B. Virus study result is not in this record either. It is my opinion that we have not seen the complete medical records from Kaiser.
66. In May 2002, I discovered that Phillip's "pending" death certificate has an International Death Classification Code of 9608. I investigated the Codes and the 9608 classification in 1983 (as it still does) refers to poisoning by other specified antibiotics.
67. On 10/9/02 I went to the San Diego Medical Examiner's Office with Ms. Warter and her attorney to view a CPRA request. In response, the County produced very few records contending they do not exist and are not otherwise archived. Exhibit 120 are true copies of toxicology request forms provided by the County in response to Ms. Warter's CPRA request.
68. I requested that Ms. Warter get clear copies of her son's Kaiser medical records for this court proceeding. Page 615 A is a copy of Phillip's Kaiser record from trial counsel's file that was not in copies produced by Kaiser but was in trial counsel's files.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed at Escondido, California on October, 2002.
By: TRACY L. EMBLEM
