San Diego Union Tribune
Inmate is free after 21 years in prison

An emotional Marsh greeted by family after conviction set aside

UNION-TRIBUNE STAFF WRITERS

August 11, 2004


AUTUMN CRUZ / Union-Tribune
Kenneth Marsh embraced Brenda Buell Warter on the steps of the San Diego Hall of Justice yesterday after his release. Marsh was convicted in 1983 of killing the son of Warter, his girlfriend at the time.
Smiling broadly through his tears, Kenneth Marsh tasted freedom last night for the first time in 21 years.

"I can't believe this is finally happening," the former inmate said. He had just walked out the front door of the downtown courthouse and into the arms of his family and friends and the mother of the toddler he was accused of beating to death.

"I'm afraid to fall asleep tonight for fear I will wake up and still be in a prison cell somewhere."

Noting he could have left prison years ago by simply admitting guilt, Marsh said: "I am innocent and I wasn't going to settle for anything less. I just thank (District Attorney) Bonnie Dumanis for doing the right thing."

Late yesterday afternoon, Marsh, 49, learned he would be freed after an order was signed by Superior Court Judge David Gill clearing the way for him to leave Richard J. Donovan State Prison.

In strictly legal terms, Gill granted Marsh's habeas corpus petition which was filed in October 2002 and argued he was innocent. Gill also set aside his conviction, and released him with a promise to appear in court Tuesday.

Dressed in a white pullover shirt and gray pants, Marsh savored his first breaths of freedom and reveled in the affection of his mother, Peggy Brand of Escondido, a brother, sister-in-law and a dozen or more other family members, friends and supporters.

"I'm so relieved this is finally happening," Marsh's mother said as she hugged her son. "I'm shaking so badly right now I can hardly stand it."

Marsh entered state prison in April 1983 after his controversial second-degree murder conviction in the death of 2-year-old Phillip Buell, whom he was caring for when the child's mother was at work.


AUTUMN CRUZ / Union-Tribune
Peggy Brand cried as she talked about her son Kenneth Marsh. She and other family members greeted him upon his release.
Marsh always maintained that Phillip's death was an accident caused when the boy fell off a couch and struck his head on a brick fireplace hearth in the College Area home he and Phillip's mother, Brenda Buell, shared.

Over the years his appeals went nowhere. But this spring, at the urging of attorney Tracy Emblem and lawyers from the California Innocence Project, Dumanis agreed to have an independent expert, Dr. Sam Gulino of Florida, review all of the evidence in the case.

That included findings from defense experts who said advances in the understanding of head trauma and falls since the conviction proved that much of the medical testimony that convicted Marsh in 1983 was inaccurate.

Last week, Gulino said he was unable to conclude beyond a reasonable doubt that the boy had been beaten.

Dumanis announced that her office would not oppose Marsh's petition or his bid for a new trial. She said her office will re-examine the case in light of Gulino's finding for at least 60 days before deciding if they will retry him.

The Tuesday hearing before Gill will be to set a date for a possible new trial. Legal experts consider that unlikely, given the length of time Marsh has spent in prison and Gulino's report.

Marsh said he never let himself believe he would be released from prison until Tracy Emblem came into his life about eight years ago.

"I prayed for it a lot and I hoped, but it never seemed real until Tracy came and said she would stand by me and fight for me and stay as long as it took," said Marsh, as Emblem and her husband, Thor Emblem – an attorney who helped fight the legal battle – stood beaming nearby.

"I tried to never let the legal system beat me down. The system we have is a good, just system; it's just that some people operating it made what happened to me possible," Marsh said solemnly. "I will never forgive some of those people for what they did to me."

Marsh, who said he has yet to begin thinking about what he will do if he remains free, said he took several powerful lessons from more than two decades in prison.

"I learned how strong a family can be," he said in a firm voice. "I learned to never give up hope. And I learned to never take anything for granted."


Mark Sauer: (619) 293-2227; mark.sauer@uniontrib.com

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