AN EMAIL FROM A READER:

It's good to see that some effort is being made in the States and elsewhere to provide a measure of justice to men falsely accused of rape. The laws pertaining to this offense are porous and overly broad, tailor-made for finger-pointing by malicious females. The rules of evidence are nearly non-existent and should be reinstated. The use of DNA analysis has been the greatest advance in providing legal protection to men spuriously accused.

Next, laws need to promulgated allowing DNA testing of all infants involved in paternity suits. This will allow many an accused to keep his money in his wallet and make women more careful. Steps in the right direction.

It's also encouraging to read that some men wrongfully accused of major crimes (rape, murder) are not only being released through the efforts of outfits like Unlocking Innocence and Innocence Project, etc, but also are being granted hefty compensation payouts. This not only goes some way in easing the aftermath of their ordeals, but in time will, I believe, put pressure on law-enforcement agencies to be more professional in their investigations. When the state begins to lose appreciable money, it begins to pay attention to the behaviour of its minions. Better police-work should be the result...





NOT GUILTY BUT NOT INNOCENT EITHER?

"Innocent until proven guilty" means nothing in California. Overturning basic legal principles is a snack if it will save the government money



Ken Marsh spent more than two decades in state prison, all the while insisting he should not have been there because he was an innocent man. Now, 15 months after he walked out of Richard J. Donovan Correctional Facility on a starlit August night, Marsh will have to prove it. In the latest turn in Marsh's long-running legal saga, he and his lawyers are in Sacramento today for an unusual hearing in which they will seek to show that Marsh was wrongly convicted of killing toddler Phillip Buell in April 1983.

Much is at stake. The hearing, which will feature testimony from Marsh, Phillip's mother Brenda - who is now married to Marsh - and medical experts, is being held under a little-known section of the Penal Code that awards those wrongly convicted $100 for each day they spend in prison. Marsh spent more than 7,500 days in custody. At $100 per day, he stands to receive $756,000. That is the largest wrongful-conviction claim ever received by the state Victim Compensation Fund, said board spokeswoman Fran Clader. The fund makes recommendations on whether to grant a claim. The money comes from the state's general fund and must be approved by the Legislature.

This year, Marsh filed a claim with the fund, which - as it does for the handful of similar claims it receives each year - referred the matter to the state attorney general for review. That office has recommended against payment, concluding that the evidence does not establish Marsh's innocence.

Now living in Rancho Pe¤asquitos, Marsh, 50, said he is frustrated and upset. "I never thought I would have to go to court again on this in my life," he said. "I thought I was exonerated and free."

The hearing will revisit the events from 22 years ago and include new testimony from medical experts who have reviewed the case for Marsh and were instrumental in his campaign for freedom. It will also be a window into an unusual proceeding: an innocence trial that Marsh's lawyer said is key for his client. "We think it's important to establish in this forum Ken's innocence," said Donny Cox, who is also representing Marsh in a civil suit against San Diego County. "And it's important for Ken to tell his story."

Marsh's case has always been controversial. Police initially ruled the death an accident. But prosecutors, backed by doctors from Children's Hospital, where Phillip was taken and later died, contended that the child's injuries could not have come from a fall. They concluded it must have come from a beating.

At his trial and through an arduous path in appeals courts, Marsh insisted he did not harm the child. He said he was in another room of the College Area home he shared with Brenda when he heard a crash come from the living room where he had momentarily left Phillip and Phillip's sister. No one else was in the house. He said he found the boy unconscious on the floor in front of a brick fireplace hearth, tried to revive him and called for help. The jury convicted him of second-degree murder and he was sentenced to 15 years to life in prison. Appeals of his conviction failed, but three years ago, new lawyers for Marsh assembled medical experts who reviewed the case and concluded that Phillip's death was caused by an undiagnosed bleeding disorder that turned the fall off a couch into a fatal accident.

Last year, District Attorney Bonnie Dumanis agreed to have an independent forensic pathologist from Florida review the case. The pathologist, Dr. Sam Gulino, concluded that while the injuries may have come from a beating, he was "unable to conclude beyond a reasonable doubt or to a reasonable degree of medical certainty" that Phillip died from abuse. With that finding, Dumanis said she would not oppose Marsh's release, and later concluded that there was insufficient evidence to retry Marsh.

But the manner in which Marsh was released makes this a more challenging fight. Prosecutors essentially said they could not prove Marsh was guilty - and that is different in the eyes of the law than concluding he is innocent. That is the legal stance embraced by state prosecutors in their opposition. Deputy Attorney General Jim Dutton wrote in a memo on the claim that Marsh had not proved he had no culpability for the crime, as he is required to do. He said there was still evidence supporting the beating theory from medical experts at the time. He said Gulino's conclusions last year "may be enough to lose confidence in the integrity of Mr. Marsh's conviction . . . but it does not assist Mr. Marsh in establishing that he did nothing to inflict the injuries." ....

At the Sacramento hearing, Marsh and his lawyers will have to prove two things in order to get any money. First, they must prove Marsh is innocent by a preponderance of the evidence. While that is a lower standard of proof than used in criminal cases - where evidence of guilt must be beyond a reasonable doubt - Marsh must show that it is probable that he did not kill Phillip. In addition, the lawyers have to show that Marsh did nothing to "contribute to the bringing about" of his arrest or conviction....

More here


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