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Declaration by: Brenda Buell, Phillip Buell's Mother
I, BRENDA BUELL WARTER, declare as follows:
1. I am the mother of the victim/decedent, Phillip A. Buell. Phillip died on 4/28/83. In November 1983, the petitioner, Ken Marsh, was convicted of the second degree murder of Phillip who was then 33 mos. old. The petitioner was sentenced to a 15-year to life prison term and is still in prison.
2. I am submitting this declaration in support of the instant petition for writ of habeas corpus. I can competently testify to the following:
3. I have always believed in the petitioner's innocence. My entire family, including Phillip's two sisters, his aunts and uncle, my mother and I all support a complete and impartial review of the petitioner's case.
4. From birth, Phillip was treated by doctors at Kaiser Permanente. I am aware that his Kaiser pediatrician, Dr. Ruth Stern, was a member of the Children's Hospital Child Protection Committee.
5. Phillip suffered a fall in November 1982. After that fall, he was always prone to vomiting. He also complained of frequent stomach pains and headaches. In late December 1982, my sister and I took Phillip to Kaiser because his stomach felt hard. Phillip was seen by Dr. Cashmore who diagnosed my son with constipation and gave him an enema. In January 1983, Phillip turned blue while on the commode. My sister was baby sitting Phillip all day. When I took him to the Kaiser emergency room, I complained that Dr. Cashmore had misdiagnosed Phillip's vomiting and abdomen pain. Phillip was hospitalized for ten days for his abdominal pain.
6. Phillip had three positive mono spot tests, in January, February and March 1983. Phillip's hair was falling out. He bruised easily, had frequent vomiting and stomach aches for several months preceding his death. He was walking funny and his balance was not right. I repeatedly told the Kaiser doctors about these medical symptoms, but they frequently had Phillip see the doctor that was on call. Phillip's pediatrician, Dr. Stern did not always see him but I discussed these symptoms with her. Every time I would see a doctor, I would do a follow up call with Dr. Stern. After Dr. Cashmore accused us of child abuse, the doctors main focus was questionable abuse and not disease. Every time I took Phillip in to be diagnosed, the doctors were more concerned about why I couldn't explain the bruising rather than testing him for it.
7. Prior to the petitioner's preliminary hearing and trial, I met with Attorney Nageotte. I explained that my son had a preexisting undiagnosed bleeding disorder, told him of the symptoms and advised him that I didn't trust the treatment that Phillip received at Kaiser. My mother worked at Kaiser and we were all concerned with Phillip's medical care. At the time the petitioner was prosecuted, my entire family and I were convinced (and still are) that the doctors were covering up medical malpractice. Phillip had been complaining that his stomach and head hurt for weeks. His stomach was always hard. I told the same information to the police. (See Exh 12.)
8. I also met with D.A. Coulter numerous times prior to Ken's trial and told him the same information. At all times I had access to D.A. Coulter and he would return my calls promptly while prosecuting the case.
9. On 4/27/83, from the moment I arrived at Children's Hospital, Dr. Peterson told me that Phillip's death was non-accidental. I remember attending a type of round table meeting with Dr. Chadwick and Dr. Peterson present. I am convinced that the doctors had made up their minds about Phillip's cause of death.
10. I recall that the doctors told me that I had to "separate Phillip's death from his illness," that his previous illness had nothing to do with the way he died. During this meeting they were unable to convince me that Phillip died the way they said. At the time the doctors were telling me this, I did not know that Phillip was given Mannitol or went into Bradycardia. I was not advised of this fact until the end of May 2002 when the petitioner's current counsel, Tracy Emblem, told me about it.
11. When the Children's Hospital doctors told me that they were taking Phillip off the respirator the following day and his autopsy was going to be performed by Dr. Williams, I strongly objected to Dr. Williams performing Phillip's autopsy because he worked for Children's Hospital and I felt he had a conflict of interest.
12. I have always been convinced that the petitioner is innocent. At the time of the accident, petitioner and I were engaged in a quasi-marital relationship. I had known Ken Marsh for several years and at no time did I ever see the petitioner mistreat, verbally abuse or hit my children or his two children. Everyone knows I would never allow anyone to care for my children whom I did not trust completely.
13. In January 1983, when Phillip was hospitalized at Kaiser and needed a blood transfusion, my sister had been baby sitting him all day, not the petitioner. About twenty minutes after I got home from work, I was in the bathroom with Phillip. His lips started turning blue, he became cold and collapsed. I took him straight to the Kaiser emergency room. The Kaiser doctors initially told me that he had a ruptured spleen and gave my son a blood transfusion. But they never found any evidence of a spleen injury at autopsy and they never gave me a medical diagnosis when Phillip continued to be sick after January.
14. I recognize Exhibits 42 and 45, my letters advising the court of Phillip's pre-existing medical problems. Shortly after the trial, my daughter Jessika was jumping on the couch. My mother told her to sit. She said to my mother, 'Grandma, Phillip jump, and jump, and jump, and go boom. I called the police immediately. I recall that Detective Ron Newman came to the house and took a statement from me. He told me that she was too young to testify and give a statement, that the courts may think that I coerced her to make the statement and it was not real proof. I asked the detective about hypnosis. He told me it would not be admissible in court. That is as far as it went. But, I remember the detective took notes. My mother is giving her declaration in this case.
15. I contacted the petitioners appellate attorney, Robinson Harley, Jr. in 1984, and again in 1994, and explained the same scenario to him.
16. Right after the petitioner was convicted of murdering Phillip, we contacted the ACLU. They said they could not help. I continued to try to locate an attorney to look at the medical record evidence. I have always known that Phillip was very ill when he died and was not murdered. I could not find anyone to help us. I also contacted Attorney Walter Christiansen because I felt that there was malpractice in Phillip's medical care before his death. Attorney Christiansen told me that there was nothing he could do because the petitioner had been convicted of Phillip's murder.
17. Sometime in 1992, I learned about the San Diego County Grand Jury's investigation into several of the Children's Hospital child abuse cases that resulted in erroneous prosecutions. I again began contacting several attorneys to see if someone would investigate the petitioner's case. I contacted attorney Laurel Nelson. I do not recall why she could not help us. In 1993 or early 1994, I also contacted local attorney Michael McGlinn who declined to help. I also contacted Attorney Sharon Petracino who is a Public Defender in Orange County, California. Attorney Petracino referred me to Mario Conte and Carl Rupp with the U.S. Federal Defenders Office in San Diego. Attorney Conte gave me some of Dr. Chadwick's former testimony but he said that he could not help us.
18. In 1994, I also contacted local attorneys Kerry Steigerwalt and William Nimo. I recall that Attorney Nimo told me that they couldn't get involved because of a conflict, they were acquainted with Attorney Nageotte, the petitioner's trial counsel.
19. During this same period, I also contacted Rev. Jim McCloskey, David Thompson, Charles Sevilla, Milton Silverman, John Stewart (Orange County) and several other attorneys asking for their pro bono help. I also contacted the ACLU a second time and Amnesty International. These organizations could not help us due to limited resources.
20. In early 1994, I contacted Dr. Jiraki in Detroit Michigan whom I found while watching Court TV. Dr. Jiraki was a forensic pathologist employed with the Detroit Medical Examiners Office. When I explained Phillip's medical history, he agreed to review Phillip's medical records forensically pro bono.
21. Finally, in April 1994, I again begged local attorney David Thompson to take the case pro bono because I was successful in locating Dr. Jiraki. I recognize Exhibit 47, my letter to Attorney Thompson dated April 1, 1994. Attorney Thompson told me that this was his first habeas petition. When he agreed to review the petitioner's case, Attorney Thompson was very busy defending a homicide case in San Francisco. He also told me that he had two other similar cases backed up and he did not have a lot of time to work on the petitioner's case but he promised to help.
22. In February 1995, I contacted the District Attorney's Office asking them to reopen the petitioner's case. I recognize Exhibit 49 as my 2/1/95, letter to the District Attorney's Office and a copy of the District Attorney's letter dated 2/21/95, that was sent to me in response to my letter.
23. On 3/31/95, Attorney Thompson, who agreed to draft the habeas petition, also contacted the District Attorney's Office to ask them to reopen the case. I recognize Exhibit 50 as a copy of Attorney Thompson's letter that he also sent to me.
24. When Attorney Thompson received no response from the District Attorney's Office, he filed the habeas petition. Neither I nor the petitioner knew that the petitioner's attorney-client files had been turned over to Deputy District Attorney Josephine Kiernan during this proceeding. I was the only one given permission to have the files from petitioner. I called D.D.A. Jay Coulter several times. What amazed me was that during prosecution in 1983, I had open communication with him but during the same period neither D.D.A. Coulter of D.D.A. Kiernan would talk to me.
25. After the petitioner's case was denied, I recontacted attorney Charles Sevilla to see if he would look at the petitioner's case pro bono. He told me again that he could not help us.
26. I again wrote to the San Diego District Attorney's Office begging them to review the petitioner's case in an unbiased manner. I recognize Exhibit 55 as a copy of my letter.
27. At the time I wrote this letter, I did not know that the District Attorney had prosecuted the petitioner in an irregular manner. I was also unaware that the Children's Hospital pathologist, Dr. Williams, who performed my son's autopsy, was not qualified or that he had performed an incompetent autopsy. I was unaware that he had lied about his forensic qualifications at trial. I also did not know that Phillip had a reaction to the Mannitol transfusion. Additionally, I was unaware of the San Diego County Board of Supervisors report or the National Medical Examiners Association (N.A.M.E.) 1985 review of the Coroner's Office. Had I known this information, I would have immediately brought it to everyone's attention.
28. At the end of January 1996, I contacted attorney Tracy Emblem to see if she would look at Attorney Thompson's habeas petition to determine whether an appeal could be filed. Attorney Emblem agreed to give us her opinion regarding a possible appeal.
29. I recall that Attorney Emblem began an initial review of the prior habeas petition and immediately asked to see the petitioner's attorney-client files. I had to get these files from Attorney Nageotte who requested a written release from the petitioner.
30. I obtained the petitioner's attorney-client trial files from Attorney Nageotte's office a few additional documents (habeas file documents) from Attorney Thompson's office and returned a complete copy of Mr. Nageotte's files to him.
31. Attorney Emblem also asked me to help locate a forensic pathologist who was experienced in reviewing child death cases. Around March 1996, I found Dr. Gregory Reiber in Northern California who agreed to review the evidence evaluated in the prior proceeding. Dr. Reiber's initial opinion was that Phillip died from an accidental fall.
32. I recall that Attorney Emblem told me that Attorney Nageotte had refused to cooperate with her and that she was having difficulty getting any information from the District Attorney's Office and the San Diego Police Department. In August-September 1996, Attorney Emblem told me that she lacked the resources to represent the petitioner in a case of this magnitude. Attorney Emblem also told me that the petitioner's case would require a very thorough investigation and that nothing should be filed until the petitioner's case was fully investigated from a legal and forensic standpoint.
33. I then contacted the following: Tom Warwick, Bart Sheela, Ronald Brown (Santa Ana) the Constitutional Judicial Committee; Marlene Panke, Ed Torrance, Carol Fish (Van Nuys); Mr. Weise (Public Defender - Van Nuys), Fritzie Galliani (Pasadena), Amnesty International, Charles Linder, Jack Early, William D. Burns, Bob Grimes, John Stewart, Laurel Nelson (again) and Vince Bugliosi (three times), Elizabeth Barranco, Alejandro Metuk and Gerry Spence. No one would help us.
34. I also contacted Millie Durovich and told her about the petitioner's case. She referred me to Bill Boyland of the San Diego Public Defenders Office. Around August-September 1996, the Public Defenders Office agreed to take a look at the petitioner's case. Attorney Emblem withdrew from representing the petitioner and turned over all of the attorney-client files to the Public Defenders Office. I personally delivered the petitioner's files to the Public Defenders Office.
35. The Public Defenders Office kept the petitioner's entire files for almost a year. Since I was concerned that nothing was being done to investigate and review the petitioner's case, in July 1997, I began again in earnest trying to locate another attorney to investigate the petitioner's case.
36. I contacted attorney Johnny Cochran who gave me the name of another attorney, Stuart Hanlon. In July 1997, I contacted Attorney Hanlon who was working on another high profile case. In August 1997, due to a disagreement and distrust in the same appointed counsel system that wrongly convicted the petitioner, the Public Defenders Office returned the petitioner's files to me. They had done very little work on the case. At the time, I was hoping that Attorney Hanlon would review the boxes of material and agree to represent the petitioner.
37. On 1/29/98, Attorney Hanlon declined to represent the petitioner because of the extensive amount of pro bono work involved. I recognize Exhibit 65 as a copy of the letter Attorney Hanlon sent to me.
38. Between 1997 and 2000, I also contacted various government officials and agencies, including Governor Wilson, Governor Davis, Susan Golding, Brian Bilbray, Sen. Jim Battin, and Deputy Attorney General Gary Schons. I still could not get help from anyone to establish the petitioner's factual innocence.
39. In August 2000, I contacted the California Innocence Project at California
Western School of Law in San Diego. The project kept petitioner's files for more than one year. In April 2001, I was told that the project did not have enough experience to work up a case of this magnitude but that they might be able to represent the petitioner at his future parole hearings.
40. In late June 2001, I again contacted Attorney Tracy Emblem and begged her to take another look at the petitioner's case, advising her that I could find no one willing to invest the time to investigate the medical records. Attorney Emblem agreed to do so but explained that she needed the cooperation of the petitioner's trial counsel, Attorney Frank Nageotte, who had refused a witnessed interview in 1996. She asked that I contact Attorney Nageotte and get his cooperation before she would agree to come back on the case again, which I did.
41. When Attorney Emblem agreed to work-up the case, she told me she was having surgery in mid August 2001 and would be recovering from her surgery for at least six weeks. She also told me that she could not apply herself on the petitioner's case until she had completed her work on other appellate cases with court deadlines.
42. Around mid-November 2001, Attorney Emblem began reviewing the petitioner's record. Until Attorney Emblem recently worked up the case, to my knowledge, no one had bothered to review and summarize the preliminary and trial testimony, index trial counsel's files, summarize the medical information or conduct an investigation into the many aspects of the petitioner's case.
43. Around November, Attorney Emblem advised me that she discovered that the coroner's report had a date on the bottom of it that indicated that it was prepared after the District Attorney had filed charges against the petitioner. She advised me that the only death certificate in the petitioner's file said "pending" and asked me to get a copy of my son's "final" death certificate from the County Recorders Office, which I did. Exhibit 68 is a copy of the certified two-page death certificate.
44. On 2/6/02, I spoke with Dr. Boyd Stephens, the San Francisco Medical Examiner, by telephone. We talked about Phillip's pre-existing medical symptoms and his autopsy where Dr. Williams destroyed evidence without testing it. He told me that he thought there could be a connection with Phillip's bleeding disorder and his death. Dr. Stephens stated that he had helped to investigate and improve the way autopsies were performed in San Diego and that he was involved in changing protocol at the Coroner's Office. In my telephone conversation with Dr. Stephens, I gave him some of Dr. Williams's Curriculum Vitae background from Exhibit 70. Dr. Stephens said he knew of Dr. Williams and that my son's autopsy should have been performed by a forensic pathologist, not Dr. Williams. He advised me that my son's illness should be further investigated and suggested that I try and locate a hematologist with a molecular biology background.
45. On 2/26/02, Attorney Emblem and I met with attorneys from the California Innocence Project to show them the evidence that Attorney Emblem discovered in her investigation of the petitioner's case. The California Innocence Project agreed to assist Ms. Emblem in filing this petition.
46. From February 2002 to September 2002, I have been attempting to review and get copies of Phillip's Kaiser Medical charts and records. It has taken me months because Kaiser claimed they could not locate them. I had to call Kaiser's risk management department before I finally got a call around 7/10/02, advising me that they had located one of Phillip's charts. Exhibit 96 are true copies of Phillip's Kaiser medical records. I have also asked Kaiser repeatedly to locate the two original spleen scans, but to date, Kaiser claims they cannot locate them. Although one Kaiser medical record states that there was a February EB Virus study pending, I have never seen this record nor was I advised of the EB Virus test result.
47. On 5/30/02, I contacted Children's Hospital to get permission to review my son's hospital records. I was called back about a month later and told that I could not look at Phillip's hospital records unless I retained an attorney and got a court order allowing me access to them. I thereafter had to retain Attorney Roberta Thyfault to contact the Children's Hospital's risk management department. On 7/31/02, the hospital let me look at and copy some, but not all of Phillip's medical records, advising my attorney that some of the records had been removed because they were "confidential." Exhibit 97 are true copies of the Phillip's Children's Hospital records that I obtained from the hospital.
48. From around December 2001 to the present, I have been making public record requests to the County of San Diego. I believe that County records exist relevant to the coroner's autopsy and investigation into my son's death and Dr. Williams's forensic qualifications that are microfiched or otherwise archived. In July 2001, I had to have my attorney contact County Counsel to help me request these public records. They have provided me with very few records and each request they stonewalled me making the investigation more difficult.
49. On 7/31/02, I went to the juvenile court and requested copies of the court record in dependency proceeding, Petition No. 129953. After Phillip died, the Department of Social Services investigated my fitness as a mother. In the record, I learned that Dr. Williams had another meeting on 5/19/02 with Dr. Stern and Dr. Chadwick, the same day the autopsy report was issued. Exhibit 98 is a true excerpt from the juvenile court record. To my knowledge, Attorney Nageotte and Attorney Thompson never obtained the juvenile court or CPS records. When I got the juvenile records, I discovered the existence of a written report on 5/27/83 prepared by Dr. Lohner that I have never seen.
50 . When Attorney Thompson was reviewing the petitioner's case in 1993-1995, I had very few discussions with him about it because he was always very busy and could not be reached. He did not tell me that the Coroner's Office had been under investigation in 1985 for performing incompetent autopsies or that the petitioner was prosecuted for a short fall similar to his Phinney case.
51. Exhibit 100 is the Federal Drug Administration information that was sent to me on Mannitol.
52. From February 2002 to September 2002, I sent out numerous E-mail queries trying to locate a hematologist. In September 2002, I was finally successful in finding a hematologist, Dr. Michael Innis, who agreed to review Phillip's medical records pro bono. After 20 years of excruciating heartache, I finally have an answer for all those undiagnosed doctor visits that could have saved my baby's life but they didn't listen when he was alive.
53. I am very disturbed over the injustice I feel that occurred in this case, not only for the petitioner, but for my entire family. For twenty years we have been troubled over Ken Marsh's imprisonment. I am personally asking this court to review this case.
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: BRENDA BUELL WARTER
