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CNN LARRY KING LIVE
Man Wrongly Convicted of Murder Freed After 21 Years Behind Bars
Aired September 9, 2004 - 21:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
KEN MARSH, WRONGLY CONVICTED OF MURDER: I'm innocent, and I wasn't going to settle for anything less.
LARRY KING, HOST (voice-over): Tonight, he was convicted of murdering his girlfriend's two-year-old son, and he spent 21 years behind bars. She believed he was innocent and fought for him the whole time. And finally, last month, that conviction was overturned. And now, they're getting married.
He is Ken Marsh. She is Brenda Buell. And they're here to tell an incredible story, next on LARRY KING LIVE.
(on camera): It's a great pleasure to welcome Ken Marsh and his fiance, Brenda Buell, to LARRY KING LIVE. Later, we'll have attorneys and others commenting on all this, but let's get into the heart of the story.
You two started going together, what, 21 years ago?
MARSH: We started going together about 21 years ago. We've known each other about 27 years.
KING: You were divorced?
MARSH: Yes, when we started dating.
KING: You -- had you been married?
MARSH: Yes, I was married and separated
KING: Do you have any children?
MARSH: Yes, I have two children.
KING: They're grown up now?
MARSH: They're 28 and 24.
KING: And you had three children -- now two, right?
BRENDA BUELL, MARSH'S FIANCE: Two, yes.
KING: All right. What happened in April of 1983? Where were you?
BUELL: I was at work. I worked for a flower vendor, and I was at work that day for the entire day
KING: And Ken, you were home with...
MARSH: Caring for the children, yes -- Jessica and Phillip.
KING: That's a girl and a boy?
KING: Phillip was the older, right?
MARSH: Phillip was the older. He was two-and-a-half, and Jessica was about a year
KING: There's been another girl since?
BUELL: Yes, Melissa
KING: Is that your daughter?
MARSH: No, it's by her first marriage
KING: OK, but were you pregnant, then, with Melissa?
BUELL: Immaculate conception. No, actually I got pregnant with Melissa shortly after Phillip passed away
KING: And so, you went back to your husband for a while?
BUELL: About two weeks.
KING: So, you were watching Phillip?
KING: Where was the girl?
MARSH: She was sitting on the couch next to him.
KING: She was how old?
MARSH: About a year
KING: And he was?
MARSH He was two-and-a-half -- almost two-and-a-half.
KING: What happened?
MARSH: I was sitting there watching them, and they were playing, reading a book. And the book got thrown over the back end of the couch. And I looked over and saw Phillip standing up, looking over the back of the couch with Jessica next to him. And he told me he threw the book over there, he needed to get the book.
So, I went over and pulled the couch out to retrieve the book. And when I looked back there, there was a bunch of debris. We had hanging plants up there and stuff, and some of it had fallen back. So, I told him to sit down, I'll go get the vacuum cleaner from the other room.
And when I went into the other room to get the vacuum cleaner, I heard a crash. And the first thought, I thought that -- you know, I could imagine him sitting there, thinking they'd broken the ashtray that was sitting on the speaker. So, I didn't think too much about it until I went back in the room and saw Phillip laying next to the fireplace
KING: What happened?
MARSH: Well, I assume that he tried to retrieve the book himself and fell off the couch.
KING: And hit his head?
MARSH: On the fireplace hearth, yes.
KING: Did you rush him to the hospital?
MARSH: I didn't rush him to the hospital. I rushed over to him first, and I picked him up. He was breathing really choppy. And I called the -- I went into the bedroom. I noticed his head was kind of mushy, so I picked up a towel and put it behind his head.
And I went to get the phone, and the phone was in the bedroom. So, I went in the bedroom and dialed the operator right away.
KING: There was no 911.
MARSH: Well, there was then 911 then, but I dialed the operator first. I just dialed the operator, and she told me I'd have to call direct to 911. So, I took the phone from the bedroom back out to the living room where Phillip was laying and I dialed 911
KING: And did you go with him to the hospital?
MARSH: No, they wouldn't let me go with him. And besides, I still had Jessica to care for at the house.
KING: Did you call Brenda?
MARSH: Oh, I called Brenda, I called her mom, I called my brother. The first person I called was Brenda after it happened.
KING: When did this begin to look like someone suspected a crime?
BUELL: I can answer that.
KING: Yes. BUELL: The minute I arrived at the hospital. They told me...
KING: Who said what?
BUELL: The doctor -- there was a doctor there who met myself. There was a social work, actually, who led me through the hospital and led me to a corridor where my mother and her boss was. And a doctor immediately came out and told me that my son had been murdered.
KING: Murdered was the word he used?
KING: And did you ask him what he based that on?
BUELL: I said no -- no, I said no way
KING: And why -- what did the doctor say?
BUELL: He said that I needed to separate -- I immediately told him that Phillip was sick and that he'd been sick for almost a year.
KING: What was the matter with him?
BUELL: He had -- they never were able to detect exactly what it was that was wrong with him. He vomited every day. He was losing his hair. He had infectious mononucleosis. They didn't detect that until after he'd died.
They never really told me what he had. He had internal bleeding in January.
KING: Well, why didn't they think because he's sick that it was murder?
BUELL: The same doctors that accused Ken were the same doctors that were supposed to be finding out what was wrong with him
KING: The doctors made the accusation first?
BUELL: Yes, yes.
KING: The police then arrested you?
MARSH: No, I was never arrested for...
BUELL: The police turned it over as an accident.
MARSH: As an accident. They did their investigation -- the crime scene did an investigation, turned it over to the D.A. as an accident. And the D.A. decided to prosecute the case anyway, regardless of what the investigators had to say.
BUELL: The doctors. MARSH: Why? I think it was because of the overzealousness of child abuse cases at that time. There was a lot of publicity about child abuse at that time. It was a pretty heated topic of conversation and of concern at that time. And I got caught up...
KING: You're saying the police refused to take this action -- investigator refused...
KING: ... but the D.A...
MARSH: The D.A.
KING: ... based on the opinion of the doctors...
MARSH: The doctors.
KING: ... at the hospital chose to...
MARSH: Decided to prosecute the case, yes.
KING: ... to prosecute the case.
Did the police testify that they didn't think?
MARSH: No, they didn't.
KING: Why not?
MARSH: I don't even believe that they knew that the D.A. testified. They didn't call them. The investigators found out through the newspaper that I was being prosecuted for this crime.
KING: No policeman was called?
MARSH: No policeman was called to testify on my behalf at all, no.
KING: Just doctors?
MARSH: Just doctors, and very few of them on my behalf.
KING: Who testified -- did you testify on your own behalf?
MARSH: Yes, I did.
KING: Did others testify for you?
MARSH: I had -- yes, many character witnesses, yes.
KING: Did you testify, Brenda?
BUELL: Absolutely, and so did my mother and my sister.
KING: Well, there's an obvious question: What was the motive? MARSH: You tell us. There was no motive.
BUELL: A beautiful little boy that was very sick. I don't know.
KING: Were you close to him?
MARSH: Yes, very close. I knew Phillip before he was born. I mean, I remember when she was pregnant with him.
BUELL: We lived next door to each other.
KING: Had you had accusations of abuse in the past?
MARSH: No, none, never. Not even with my own children or any time in the past.
KING: So, why -- I'm befuddled.
BUELL: So are we.
KING: Was it based purely on the physical evidence?
KING: Now, is that according to them...
BUELL: Well, according...
KING: ... had to be thrown to the floor?
MARSH: The physical evidence the doctors saw, that's what it's based on.
BUELL: They said that you could not die from a short fall.
MARSH: From a short fall.
BUELL: That children didn't die from short falls.
KING: Hold it. Like something just jumped in my eye. I couldn't see what I was saying.
The doctors thought that he was -- I'm totally lost. The doctors thought he was -- he was killed by you?
MARSH: They thought he was abused by me, yes.
KING: Right. The police thought not?
MARSH: Thought not, yes.
KING: Now, I just want to get this clear. So, the D.A. decides to listen to the prosecutors.
KING: Did he allow you to make a pitch to him, the D.A.?
MARSH: I don't remember even speaking with the D.A.
KING: Did he ever talk to you?
BUELL: Well, I talked to him every day. I had him on a -- pretty much a paging system when this first happened.
KING: Did he tell you why they came to that conclusion?
BUELL: No. He said that the doctors said that there's no way Phillip could have died from a short fall.
KING: OK. The doctors gave us a statement. We contacted the hospital, and here's what they said. "All physicians involved with this case used every possible means, treatment, and technology available at the time to treat this injured boy and try to save his life. We're distressed to any suggestions to the contrary. It should also be noted that the doctors at Children's did not convict Mr. Marsh."
Naturally, how could they convict? They're not a trial of fact.
"That the conviction occurred in a trial, before a jury of Mr. Marsh's peers. Our medical personnel were asked to give their professional trained opinions on the likely cause of death. After painstaking and sober examination of all evidence using the best knowledge and techniques available at the time, these physicians formulated the opinions and testimony recorded at trial, based on the facts. We believe the physicians' testimony at trial were well supported by the medical evidence, and that the jury's decision speaks for itself."
Why do you think you were convicted?
MARSH: I was convicted because it was an easy out for them. I think they were covering their own butts by convicting me.
KING: You think they screwed up at the hospital?
MARSH: I know they screwed up at the hospital.
KING: You think they could have saved his life?
MARSH: Not only at the hospital, prior to the hospital, they screwed up with Phillip's medical conditions from the very beginning. They...
KING: What hospital was this? What hospital?
BUELL: Kaiser Hospital was caring for my son. And in January, before he died -- a few months before he died, he was bleeding internally when my sister was watching him. And they said that he had a ruptured spleen, and then it turned around that he had no ruptured spleen. And they don't know where he was bleeding or...
KING: You think the hospital was covering its own ineptitude?
MARSH: Well, to a degree, yes.
KING: Were you a scapegoat?
MARSH: I just think I was caught up in the overzealousness of child abuse at that time, yes.
KING: Were you hurt by the fact that, when you testified, it was brought up that you had a prior record?
MARSH: I'm sure that played a little bit into convicting me, yes.
KING: What was the record?
MARSH: It was a second-degree armed robbery.
KING: Did you serve time for it?
MARSH: I did 120 days county time and three years formal probation, yes.
KING: And you two stuck together through all these years?
BUELL: No, I actually was married in between this time.
KING: Did you keep in touch?
BUELL: I always let him know I'd never give up. I'd never stop fighting to bring him home.
KING: And after that marriage ended, you got back in touch?
BUELL: Actually, we've always been in touch.
MARSH: We haven't been in touch. I mean, until I got out of prison, the whole time I was in prison, I never Brenda or never touched her. The 21 years...
KING: You never visited?
MARSH: The 21 years I was prison, I never saw her. One time at a parole hearing, that was it.
KING: You were sentenced to, what, 15?
MARSH: Fifteen to life.
KING: Well, what happened at parole hearings?
MARSH: Because I don't admit culpability to the crime, I...
KING: A catch-22. BUELL: Well, we attended a parole hearing, and I took letters from my whole family -- my entire family supporting his release. They wouldn't listen.
KING: In other words, if you didn't do a crime, you're supposed to say you did in order to get patrolled?
KING: We'll be right back with more of Ken Marsh and Brenda Buell. We'll be meeting a panel, as well. Don't go away.
KING: Before we get to how this case unraveled and got Ken free, how did you handle being in prison for something you know you didn't do?
MARSH: It was very difficult. What kept me going was Brenda, because I knew...
KING: She said you didn't see her.
MARSH: I didn't see her but I knew she was out here fighting for me the whole time. I knew she'd never give up. Not only to fight for my freedom but to find out what happened to Phillip.
KING: You never gave up?
MARSH: I never gave up. I always had hope. My faith wavered, but I never gave up hope. Never. And she's the one that gave me the strength to do it.
KING: Do you think if you'd said at the parole hearing, I did it, they'd have paroled you?
MARSH: I don't think so because after saying I didn't do it so long, why am I changing my mind? Just to hear a parole date? I think they would see through it. I would have never done this that anyway.
KING: I guess there could be nothing worse than an innocent person in prison.
MARSH: It's pretty bad.
KING: Then there's the old statement on the other side that every person in prison says they're innocent.
KING: What kept you day to day, just knowing someone was working to get you out kept you going 21 years?
MARSH: Yes. You know what, because I knew I'd get out of prison someday. I knew that I would be out of prison someday. I didn't want to die in prison. And I knew that I'd be out of prison one day.
KING: How old were you when you went in?
MARSH: Twenty-eight, and I'll be 50 in January.
KING: When are you getting married?
BUELL: October 30.
KING: What were you doing to get him out? Who were you contacting? What were you trying to do?
BUELL: I contacted every political person I could find from the mayor to the city councilmen, the governors, the president. I've gone to everybody. I went to almost every attorney in San Diego. I went outside San Diego. I had to find doctors outside of San Diego.
KING: Did you have lawyers filing briefs?
BUELL: No, I have one attorney that came forward in '94 to file a written habeas corpus, David Thompson, but he didn't do the research or the investigation that Tracy did and uncover all the truth and the facts on it. It wasn't until Tracy came to my aid. I call her Guardian Angel Tracy.
KING: But the key was a doctor you found, right?
BUELL: Several doctors, actually.
KING: In Florida, right?
BUELL: There's a doctor in Florida. There's Dr. Ophoven, Dr. Reiber, Dr. Leestma, Dr. Thibault -- we have so many to mention, I don't even know if I can remember them all...
KING: And they all did what?
BUELL: Dr. Jerokey (ph) was actually my first ray of forensic sunshine. I called him. He came forward and took the case for free, and he looked at it and told me that he had noticed that as soon as he saw pictures of Phillip's autopsy, that there was something wrong with Phillip. Because there was a bruise everywhere the medical professionals touched him. Every resuscitation point was a bruise so he said that showed he was indicative of some kind of bleeding disorder.
So, from Dr. Jerokey, I was led to Tracy and then we were led, it seems, you know, once I got my faith in God back, actually, is when I was led to a bunch of different angels that all came together out of the kindness of their hearts.
KING: They all filed things with the court?
BUELL: Tracy actually filed everything, but the doctors are the ones who compiled all their opinions and did free autopsies on Phillip. KING: Did you take to it a judge? How did he finally get freed?
BUELL: Tracy finally took it to the superior court. We actually went to the court of appeal first. They looked at it and said it needed to be returned back to the superior court, that Ken had raised, I guess, prima facie or whatever they say that he had proven his case and that they thought it should go back to the superior court. So, we took it back to the superior court and Judge Gill then oversaw Tracy's work.
KING: And here's what the district attorney's office said in part in response to all of this.
We asked the San Diego D.A.'s office for a statement in connection with the Ken Marsh case. We were directed to a September 3 motion and here's what they said.
"The district attorney's office hereby moves the court to dismiss the case against defendant Kenneth Marsh. The district attorney's office is requesting dismissal because our duty is to seek justice, which we take very seriously. It overrides our interest in sustaining a conviction. And because, based on Dr. Sam Gulino's findings, we now believe there is insufficient evidence to meet our heavy burden of proof beyond a reasonable doubt. Although we concede reasonable doubt exists, considerable evidence of the defendant's guilt remains which refutes his claim of factual innocence."
What is the considerable evidence of your guilt?
MARSH: I have no idea. If there was considerable evidence, I'm sure they wouldn't have dismissed the charges. I was factually proven innocent and they know that and that's why they dismissed the charges against me.
What stance do you expect the D.A.'s office to take? They're not going to come flat out and say we made a mistake in Mr. Marsh's case. We screwed up, we're going to let him out of prison. I mean that just opens the door for all kinds of lawsuits.
KING: Different D.A. now?
MARSH: It's a different D.A. now. Bonnie Dumanis, I want to thank her for everything she did to get me out of prison. She worked hard to do that.
KING: Different people at the hospital now?
MARSH: I couldn't tell you that.
BUELL: I don't think the hospital had anything to do with it.
KING: There are different people there now?
BUELL: Yes, different people.
KING: Did you sue the hospital? BUELL: No.
KING: Ever think about it?
BUELL: When Phillip first died, I had gone to an attorney in San Diego for malpractice, because I felt that it was their fault. And he told me that as long as they held Ken responsible I had no cause for a lawsuit for wrongful death.
KING: You think they could have saved Phillip's life?
BUELL: I do.
KING: What did they do wrong, do you think? You're not a physician but what do you think they did wrong?
BUELL: I just think they didn't investigate his illness. When he was sick, my sister was watching him, he was bleeding internally, he lost half of his blood and they never found out what was wrong with him. He was continually sick, throwing up every day. He was -- everywhere you'd touch him, the child bruise. He fell off a stool and the bruise on his hip was incredible and they wouldn't listen. They just wouldn't listen.
KING: In court, did they try to suggest a motive?
MARSH: No. Just the boyfriend, you know. The boyfriend angle. I was the boyfriend so I'm the one that...
BUELL: He was the last one there.
KING: Why would a boyfriend though want to kill his girlfriend's son?
BUELL: They said that maybe he had a temper, maybe he just snapped. But Phillip was so good. That's what everybody's forgotten along the way, too, is that Phillip was a little boy that meant a lot to all of us. The people who loved Phillip the most are the ones that support Ken and the ones who went to the doctor asking them.
KING: How did you find out you were getting out?
MARSH: Two hours before I got out of prison when is I found out.
KING: Who told you?
MARSH: Actually the prison guards came and got me and took me down to receiving and release and that's where a couple of sheriffs picked me up and told me I was being taken...
KING: Did anyone say anything to you on the way down? Did the guards say anything?
KING: What did you think was happening? MARSH: I thought I was being taken down to county jail because I had a court date for the next day. I had a court date set. I thought I was going for a hearing. I thought I was going to county jail.
KING: So, who actually told you, you're free?
MARSH: Probably the (INAUDIBLE). When I went to R&R at Donovan (ph), the sheriffs in there told me they were taking me to see Brenda. I couldn't believe it. I couldn't believe it.
KING: We'll be back in just a moment. We'll include some of your phone calls and then we'll meet our panel. Don't go away.
(BEGIN VIDEO CLIP)
UNIDENTIFIED REPORTER: For supporters of Kenneth Marsh, the scene had all the makings of an emotional happy ending. Marsh's murder conviction was overturned and he was free after more than two decades in prison.
MARSH: I still can't believe this has really happened. I'm afraid to fall asleep tonight because when I wake up I might still be in a prison cell somewhere.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Buell, Phillip's mother, led the battle to free Marsh. She never believed he could hurt her son.
BUELL: Today's a blessing in disguise. It's a miracle.
UNIDENTIFIED MALE; A miracle created by an Army of supporters, including his lawyers, who say they'll never forget the scene inside the prison.
UNIDENTIFIED FEMALE: You know, he hasn't seen the stars in 21 years. It's very emotional. We all just cried and cried and cried.
(END VIDEO CLIP)
KING; Later, we'll meet the lawyer, Tracy Emblem. We'll also have Nancy Grace the anchor for Court TV a former prosecutor. And at the bottom of the hour, we'll spend some moments with Dr. Cyril Wecht, the coroner of Allegheny County. One of the world's foremost forensic pathologist. And Doug Curlee, the reporter for KUSI TV, who covered the 1983 trial of Ken Marsh.
Right now, let's take a few calls for Ken Marsh and Brenda Buell. They'll be married next month. Norwich, Connecticut.
CALLER: Yes. Hi, Larry.
CALLER: Hi. My husband and I love your show. And my heart goes out to this couple, it really does. It's such a tragic, really tragic story. I really feel for you.
My question is for Ken. Have you ever looked into suing the judicial system, or the government, or the police department? I mean, it must be so frustrating for you. Have you sought any retribution for this really terrible injustice in?
MARSH: Well, that's something that I've talked to my attorneys about. And that's something we're working on right now. We haven't really come up with anything solid yet, but hopefully something will happen in the future, because after 21 years of prison just getting through on the streets, if I'd had nowhere to go, I don't know what I would have done.
KING: Does the state legislature have any form for bringing up -- they usually do in other states.
MARSH: Yes, they have a penal code here that says I'm allowed to -- entitled to $100 a day for every day I spent incarcerated. And that's something that the Innocence Project is working on right now to try and compensate me for it.
KING: The Innocence Project got involved in this, too?
MARSH: Yes they did.
KING: Therefore, it does not shock you that, say, over 100 people convicted of murder in the United States have been found not to have done it.
MARSH: No. That doesn't surprise me at all.
KING: To Tampa, Florida, hello.
KING: Go ahead.
CALLER: Yes, this is -- I want to know if Ken, he has been in there for 21 years, and now he's just suddenly thrust out into society. And it's similar to the last question that he just had. In most jobs, you can work 21 years and have a pension going. And all of a sudden, there he is with nothing. I mean, is there any sort of offer of apology or here you go, you know? What are you going to do?
KING: Has anyone said we're sorry?
MARSH: I don't think anybody's going to say we're sorry. I wish somebody would, but nobody's going to say that. And as far as any kind of compensation. No, I've received nothing so far. I've been out a month.
KING: What has surprised you most of changes in the world since you've been out a month?
MARSH: This is it right here.
KING: No. What about society's changing, cell phones?
MARSH: Technology has advanced so far. In 21 years, it's come so far. So, technology is kind of a trip right now. I mean, I'm still trying to figure out how to use the remote control to the TV and the microwave.
BUELL: The traffic, he's shocked.
MARSH: The traffic. Everything is so fast. Everything moves so fast. The amount of freeways. It's incredible.
KING: St. Joe, Missouri, hello.
CALLER: Hi. My question is from Brenda. I just wanted to know how are you all dealing with this now that he's out? I mean...
BUELL: Oh, it's incredible. It's like he stepped out of 1983 and into 2004. Things are no different than they were back then. We're still very happy and...
KING: How do your daughters feel?
BUELL: Oh, they're so happy. I'm not crying anymore. My mom finally is finally going, my baby's not crying every day. They're very happy. They're very happy for us.
MARSH: Because the legal aspect of it, it's finally over. And that -- it was taking a toll on her and on Tracy.
KING: Pleasanton, California, hello.
CALLER: Hello. My question is for Ken. I would like to know how old he was when this happened? And also what kind of work was he doing at the time? And what kind of work he's doing now? Thank you.
KING: Thank you.
MARSH: OK. I was 28 at the time. I was a supervisor at the Coca-Cola Bottling Company of San Diego. And had my own house painting business going at the time. And what was the other question?
KING: What are you doing now?
MARSH: Now I'm doing nothing. I'm just kind of readjusting back into society.
But the amazing part is, it doesn't seem like it's been 21 years since I've been in prison.
KING: It doesn't?
MARSH: No. KING: You mean time flew?
MARSH: No. After being out, it doesn't seem like 21 years. The adjustment into society and back into the life has been incredibly easy, except for the technology aspect of it.
KING: Have your children been support sniff.
MARSH: Yes. I just met with them for the first time a couple weeks ago. It was incredible.
BUELL: People don't realize, either, that we lost Amber and Ken at the same time we lost Phillip. I mean, we were all a really close family. We had 4 kids at the time, and three of them got taken away the same day.
KING: We'll take a break. When we come back, we'll check in with Cyril Wecht. Dr. Wecht is the coroner of Allegheny County, Pennsylvania. And a report of Doug Curlee who covered this trial. And then we'll bring in the attorney and Nancy Grace along with Brenda Buell and Ken Marsh. Don't go away.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Ken Marsh didn't mind in the least walking a little ways to get to the celebration awaiting him. He walked just because he could. There was no guard staring over his shoulder, no one telling him what to do, where to go. Just the simple act of walking down the street and into a restaurant is just one of so many things that have been denied him for 21 years.
(END VIDEO CLIP)
KING: Let's reintroduce our guest, Ken Marsh, freed from prison last month after a judge set aside his 1983 conviction for the murder of Brenda Buell's young son.
Brenda is with us. She believed in his innocence from the start. Spearheaded the 21-year fight to win the release. There' getting married next month.
Now, joining us here in L.A. is, Tracy Emblem, the appellate attorney for Ken Marsh and Brenda Buell.
In Atlanta is, Nancy Grace, the anchor for Court TV, the former prosecutor, and author of the forthcoming book, "Objection."
In Pittsburgh, Dr. Cyril Wecht of Allegheny County. He's one of the world's foremost forensic pathologists. His most recent book is "Mortal Evidence: the Forensics Behind Nine Shocking Crimes."
And in San Diego, Doug Curlee, reporter KUSI TV who covered the trial.
What did you think, Doug, at the trial?
DOUG CURLEE, KUSI TV REPORTER: I was bothered a lot by the trial, Larry. To be quite frank, seemed to me that they went at it backwards. You have to remember we were in a lot of hysteria over similar type cases at the time, and there were a couple or three very notable such cases right here in San Diego.
A lot of things bothered me about this. I was bothered by the lack of a police investigation. Whose job is it to determine there's a crime here, didn't hear much of that. I could never understand what possible motive Ken might have had for that. And I was most struck, I think, probably by the fact that the mother of the dead child, Brenda stuck with Ken from minute one of day one. She was -- in his corner all the way through. All those things just -- to me just didn't add up to the picture that the prosecution was presenting.
Dr. Cyril Wecht, did you ever see any of the evidence in the case?
DR. CYRIL WECHT, FORENSIC PATHOLOGIST: Yes, about a year ago, some materials had been sent to me by Tracy Emblem and we had correspondence back and forth. I had been waiting for some additional materials, and for whatever reason, it did not come through. But Tracy...
KING: What do you make of it?
WECHT: I make of it, first of all, I believe justice has been served and the right decision has been made. The hysteria that existed does remain today. It is dissipate, but we still find among my colleagues and more so in the realm of pediatricians at children's hospitals this rush to make accusations, especially when you have someone functioning in local parenting, someone other than the biological parent. And one should be careful about being placed in that position.
From a forensic pathology standpoint, Larry, we know and we've been saying for many years that you can have significant cranial cerebral injuries from short falls. The idea that a child must call for two, three, five stories or a motor vehicle accident with a car moving 50, 60 miles an hour in order to produce this kind of injury to the brain with subdural hemorrhage and so on, this is fallacious.
And Tracy Emblem got in touch with excellent people, some of the very best, Dr. Janice Ophoven, who is a pediatric forensic pathologist, Dr. Jan Leestma, who is the nations foremost forensic neuropathologist, Dr. Reiber, Dr. Gulino. These people did a great job. And I concur with their conclusions and their findings in this case.
KING: Who financed this for you, Tracy?
TRACY EMBLEM, ATTORNEY FOR KEN MARSH/BRENDA BUELL: Basically we got these doctors to come on the case pro bono. When they looked at the case, they were so appalled, that they said that they would help.
KING: How did you get the case?
EMBLEM: A grand juror brought the case to me and asked me to look at it.
KING: A grand juror who had been involved initially?
EMBLEM: In other case in San Diego.
KING: Did you believe in the case right away?
EMBLEM: To put in this kind of pro bono work, I looked at it skeptical at first, because I was going to investigate it completely. But One thing that really -- really struck me was that the police officer, the head of the homicide team, said he always thought that Ken was factually innocent and that they convicted an innocent man.
KING: Nancy Grace, when can you see a prosecutor, say, not listening to the police, but listening to the doctor?
NANCY GRACE, COURT TV ANCHOR: In is a case just like this, Larry. I think a lot of the of evidence has not been discussed tonight. And I'm very happy that Miss Brenda Buell has found happiness and peace, God knows she deserved it after losing her boy the way she did. But I'd like to point out what the actual injuries to this little baby were.
He had a blow to the head on the left side of the head behind the right ear, on the top of the head, in the back of the head, and at the bottom of the chin. Now, Larry, the theory that the defendant, Mr. Marsh, has put forward is that the child fell off a sofa on to the fireplace.
It is very clearly written by the California Appeals Court who did not reverse this case, who affirmed the jury conviction, that there was no indentation from the bricks on the child's face or on the head. And I tell you Larry, a fall from a sofa, how can you possibly get a blow, a blow, a blow, a blow, and a blow from one fall? I don't see it.
KING: Are all these doctors wrong?
GRACE: When you say all these doctors, I would like to remind everyone...
KING: I mean, the doctors that were used in getting the case changed?
GRACE: Dr. Gulino, the doctor that helped her, I would like to point out, firmly disbelieved that this baby had any blood disorder. The disorder that they keep talking about that came from mononucleosis. And I would like to point out also that six doctors swore under oath, including the child's treating pediatrician, that this was no accident.
KING: Tracy, you want to comment? EMBLEM: Yes, I certainly do. Dr. Wecht will talk about it, but what happened is that these pediatricians are not forensically trained, and Dr. Wecht is one of the foremost forensic pathologists in the nation.
KING: He is.
EMBLEM: And he will tell you that you're just a pediatrician. You don't have that training to able to determine trauma sites, resuscitation sites to impact sites. What she's talking about, even the doctor that came in for the prosecution, he said that that -- that Phillip as injuries were consistent with the fall and all of my national experts said the same thing.
These were all consistent with the fall. These pediatricians did not know about forensic injuries at all, and they all testified about impact sites, even Dr. Gulino, the prosecution's expert that came forward and said that this autopsy that occurred, there was a lot of evidence that was lacking in the autopsy. Because what happened is that Children's hospital Brought their own doctor who was not a forensic pathologist in to do the autopsy. They had a policy going in San Diego at the time.
KING: Doug, what did the police say to you?
CURLEE: The police, quite frankly, told me the same thing you've already heard. The police officers I talked to said, I don't think the evidence supports this conviction. We don't think -- this guy just didn't do this. This kid fell. And these are professional investigators, with all due respect to, Nancy. There are any number of ways those bruises could have come about.
GRACE: They were not bruises. They were not bruises.
CURLEE: I thought perhaps the boy was a hemophiliac.
GRACE: They were not bruises, sir, they were blows to the head, according to the doctors' reports and the California Appellate Court finding.
And I would also like to point out that in the district attorney's papers, that let this man go, it says it's noteworthy that while the defendant, Mr. Marsh, lived with this little boy, he suffered numerous traumatic injuries, intra-abdominal bleeding a broken hand, a large lump on his head, nose, lip, bruises. All this happened after Mr. Marsh moved in with the boy.
KING: We weren't there but Brenda was -- Brenda.
BUELL: Absolutely. First, I'd like to mention she has no idea who was with my child those days those injuries happened.
KING: No, she doesn't.
BUELL: And my sister was with him on two of those days, I was with him on another and my mother was with him on another. KING: Could have been you. Could have been your mother.
BUELL: So, there was only four injury days we were talking about, and Ken was not with him. The injuries and blows to the head she was talking about was resuscitation. There was one blow to the side of his head and one to the back. One hitting the fireplace, another hitting the back of the fireplace.
KING: Dr. Wecht, how would you respond to, Nancy?
WECHT: I have the autopsy report right here. There is no abdominal trauma of any kind.
GRACE: That was previous, Dr. Wecht. Previous to the four blows to the head. This took place in the months preceding the four blows to the head that ended in the child's death. It would not be on the autopsy report.
WECHT: And Nancy, with all due respect, your gut experience, when it comes to evaluating these kinds of scapular injuries and subdural hematomas, et cetera, I think that we should all defer to the forensic neuropathologist and the forensic...
GRACE: The ones that testified at trial, you mean, that resulted in conviction?
WECHT: No, let me reiterate something that Tracy Emblem has said, but this gets to the heart of the case. The pathologist who did this autopsy was not a trained forensic pathologist at all. The autopsy was permitted to be done at Children's Hospital. The policy at that time that existed in San Diego County, which was not a good one.
The people who testified, I'm not suggesting some kind of malevolent conspiracy here on the part of these half dozen physicians at Children's Hospital. But the fact is that they all testified based upon no forensic experience, whatever.
This kind of mass hysteria has been going on for a long time. Dr. John Plunkett, another pathologist -- forensic pathologist involved in this case reviewing for Tracy Emblem, has a photographic documentation, a video of a child, was just fortuitously was taken, that fell from a distance of two, three feet while playing up there in Minnesota and shows how the cranial cerebral injuries occurred with such a short fall.
GRACE: That's not even this case.
KING: Let me get a -- let me get a -- let me get a break. And Ken, was a motive ever brought up to you?
KING: We'll take a break and be back with more. We'll keep our entire panel assembled. Don't go away.
KING: Let's take care of some loose ends here. Doug, was Ken Marsh a good witness on his own behalf.
CURLEE: I think Ken was an OK witness on his own behalf, Larry. I think a lot of Ken's testimony, quite frankly -- in my view, at least -- was colored by the fact that he just -- I don't think he really yet realized what was about to happen to him, quite frankly. I think he was still kind of stunned and shocked about this.
He was as good as he could be under the circumstances, but you have to remember what the -- you know, and I think this is something Nancy needs to take into account, too. You know, you're being tried in a community where there's a hysteria of these things going on anyway. We had several other cases around that same general time frame...
GRACE: You mentioned three.
CURLEE: ... that lately -- that later were overturned. Dale Akiki case comes immediately to mind -- another one I covered. Turned out that many of the allegations from the people at the various hospitals simply were not true. They were not forensic (INAUDIBLE). Dale Akiki's case, he was not physically capable of doing any of the things he was accused of, yet they tried and convicted him
KING: Why were no witnesses put up on Ken's behalf? No experts.
EMBLEM: Well, one of the problems was that the attorney that represented him, this was his first murder child abuse case.
KING: Was he a...
EMBLEM: No, he was a criminal attorney. This was a court appointed attorney. But he had -- this was his first case. And so, he went to doctors, but he went to Children's Hospital in Los Angeles to two doctors. And he thought he was getting a forensic pathologist, and he went to a hospital pathologist.
KING: What were the injuries?
EMBLEM: The injuries were mainly on...
KING: Were they as Nancy described them?
EMBLEM: No, they weren't. She's talking about resuscitation sites. And resuscitation sites, if you're not a forensic -- well, where they put the pressure monitor in the child's head, they call that an impact site. And Dr. Wecht would tell you that that is a resuscitation site, just as the Dr. Greg Reiber from UC Davis did and my neuropathologist did.
Then there was -- oh, a bruise under the chin where they opened his mouth to put an intubation tube in. But see, there was two dime- sized bruises behind his ears, and that's where they had a cervical collar. Dr. Reiber, the forensic pathologist, explained that. They're fully explainable.
One of the sites that they called an impact site, the prosecutor's own forensic pathologist, Dr. Gulino, said that that is a direct hemorrhage, and so did my forensic pathologist and my neuropathologist.
KING: Why did they dismiss out of hand? Why didn't they have a new evidentiary hearing?
EMBLEM: Because we brought strong enough evidence. I brought in experts that are used in other prosecutions and actually testified for the prosecution in other cases.
Dr. Reiber testifies for the prosecution out of Sacramento. He's not going to say that this is an accidental death.
KING: Nancy, why can't you allow for the possibility that some errors were made here? The mother totally believes, and has believed for 21 years, it's her son that got killed. Why not some compassion here?
GRACE: I have plenty of compassion. I have compassion for the little boy that died. And I am not saying out of hand that I disbelieve this story. I'm simply telling you the side that no one seems to want to hear tonight.
I don't want to rain on everybody's parade, but the reality is that these doctors, six of them, including the treating pediatrician, said this is no accident. And also, the reason the defense attorney didn't bring on any doctors, you can claim he was inexperienced. He was not. He went and searched, and he could not find a single doctor that would support their theory.
And let me just point out, according to the California Appeals Court, they said that the trauma -- all these traumas, all around the head, that she's claiming as a resuscitation bruise -- was accompanied by the force equivalent to a high-speed automobile crash. That's what the California Appeals Court.
Now, if you guys don't want to believe that, that's OK with me.
KING: No, I'm asking you, Nancy, as you said, you don't have an opinion one way or the other. It sounds like you do. That's all I'm saying is it sounds like you do.
And number two...
GRACE: I'm telling you the other side of the story.
MARSH: Larry? Larry?
KING: Are you influenced at all by the statements by Dr. Wecht and the other doctors who gave it another look? Are you influenced by the feelings of the mother? In other words, does the only thing that influence you, the initial evidence? GRACE: The only thing that influences me, Larry, in this case and every case is the cold, hard evidence. Yes, my heart goes out to Brenda and for anyone in prison for 21 years. Yes, I believe experts can have differing opinions.
But from what I see, these inflictions of trauma on this child were intense. And also, the reality is that all of these other injuries only started when the defendant moved into the home.
KING: But she's already answered that already. He wasn't home at the time of the injury. You weren't there. I wasn't there. So, let's admit one thing, Nancy: We don't know.
GRACE: There were 12 injuries. There were 12.
Well, of course, Larry. Of course I don't know. I mean, is that a big victory? I wasn't there, of course I don't know what happened, but there were 12 injuries to this child after he moved in.
KING: Are you ever open to the possibility that Ken Marsh didn't do this?
GRACE: Of course.
KING: Thank you.
KING: We'll take a break, and we'll be back with some more moments. It just might be interesting to hear it once in a while.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: Marsh thanked his San Diego lawyers, Thor and Tracy Emblem, who spent countless hours working the case free of charge. He also praised District Attorney Bonnie Dumanis, who reviewed the case personally and set aside the conviction.
But Marsh saved his most glowing words for Brenda, who stood by his side today, just as she has for the past two decades.
MARSH: Riding up with her in the car, going back to our house, I felt like I never left her. I felt like it hadn't been 21 years since I'd seen her. It was like just yesterday.
(END VIDEO CLIP)
KING: By the way, there's a Web site connected with this called freekenmarsh.com. Obviously, a successful Web site. Dr. Wecht wanted to add something? I wanted to ask Nancy something -- Dr. Wecht.
WECHT: Yes, Larry. I wanted to point out this child survived for just about 24 hours, 23 1/2 hours. When you have a head injury, and you have manipulation by the neurosurgeons, the anesthesiologists, the resuscitation experts, et cetera, in the subcutaneous tissues, the loose fat beneath the scalp and the skin of the face, blood will diffuse very readily. And when you implant anything in this case to determine the intracerebral pressure and things like that...
WECHT: Meaning that the appearance of the child at autopsy, in terms of the distribution of the discoloration is not a true representation of what existed when the child first came in. It also does not reflect true trauma.
KING: All right.
WECHT: And the other thing, to show you the inexperience of the pathologists, they referred to lacerations of the neck, they were incise wounds which are inflicted by the shards of glass which fits in perfectly and consistently with Ken Marsh's story.
KING: Nancy, is it possible that the appeals court was reading the evidence only offered by pathologist who didn't know the full score? In other words, what does the appeals court have to go on when they're looking at it?
GRACE: I see what you're saying. The appeals court had only the evidence at trial. And then the additional evidence that may have been put in at a motion for a new trial. However, at the trial, there were not just the pathologists. And I understand what Dr. Wecht is saying. And I agree with Dr. Wecht. However, the doctors that first saw the child, not 24 hours later at the autopsy, but that first saw the child, there are six doctors in all, they told the mother immediately, this child has been beaten in the head. He was murdered.
KING: And you -- Brenda, you do say that, right?
BUELL: Yes, they told me immediately.
KING: They did tell he was murdered, right?
BUELL: Yes. But the first doctor that saw my son did not see those injuries that she's speaking of. Dr. Strauss did not document any of those injuries she's speaking of, excluding the back of the head injury.
KING: How do you account, Nancy, for the conflict between the police an the doctors.
GRACE: Yes. And I've seen that before. I account to it by the fact that if I saw someone lying in the street after an accident, I would not be able to tell what was under their scalp until a doctor actually looks at X-rays, until there's an autopsy performed. You can't look at the body and tell.
And I find Mr. Marsh to be very believable. He seems to be credible. I would think that he would make a good witness. But the reality is, physical evidence is very strong.
KING: Would you admit that, Tracy? They had to have something here.
EMBLEM: No, I wouldn't. I think that if this had gone to a forensic pathologist, that he would not have been charged with murder. I believe that he was charged with murder, because the pediatricians believed that it was murder. But they are not forensic pathologists.
This is critical in charging people with murder to take it to an outside agency, an independent forensic pathologist that is trained to determine trauma from non-trauma.
KING: Doug, what's the community saying, if the community can speak as one voice?
CURLEE: As a general rule, Larry, I think they seem to support Ken. A lot of the people who remember the case back then, although it's very dim in a lot of people's memories, but a lot of the people that I've talked to said, you know, I always kind of wondered about that case. The thing that bothers me, I think, more than anything else, is the lack of a coordination between police and the physicians.
Again, the non-forensic pathologist and the doctors at Children's Hospital who walked right out and told Brenda that this child has been murdered. Now, wait a minute.
There are people who make a very good living and are very, very talented at investigating crimes. Didn't see that in this case, and I think that bothered every one of us who covered the trial at the time. Let's hear from the cops. We never really did. That bothered me a lot.
BUELL: She was just stating how you don't make these opinions until you get all the information. Yet Children's Hospital made that opinion when I walked through the door before they ever gathered all that information.
KING: Think we'll ever know the whole story, Nancy?
GRACE: No. I don't think we'll ever know the whole story.
KING: As to the cause of death.
But at least, Ken, you've got a chance to make a life for yourself.
MARSH: Yes, I do. And I do believe that Brenda actually did find out what happened to Phillip. That was the most important thing.
BUELL: Thank God for Tracy Emblem.
EMBLEM: The Web site. Go to the Web site
KING: Thank you all very much. Ken Marsh, Brenda Buell, Tracy Emblem, Nancy Grace, Dr. Cyril Wecht and Doug Curlee. I'll be back in a minute to tell you about tomorrow night. Don't go away.
(COMMERCIAL BREAK) KING: Tomorrow night, Tim McGraw will be with us. He's probably the hottest name in country music today. His album is No.1.
And then Saturday night, a very special show dealing with the anniversary of 9/11.
By the way, my wife Shawn is going to sing the National Anthem at the Redskin opener on Sunday night. And it will be telecast live when they bring you the game between the Redskins and the Tampa Bay Buccaneers.
So, I hope you'll tune in for that, Aaron Brown, as you relax on a Sunday afternoon as the NFL season gets underway.
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