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Judge Denies Motion to Suppress Marsh Confession

Marsh-Danielby David Greenwald and Antoinnette Borbon

Yolo County Judge David Reed denied a motion by the defense to suppress 16-year-old Daniel Marsh’s confession to Davis Police on June 17, 2013, with regard to the double homicide in South Davis in the spring of 2013, following about an hour evidentiary hearing and reviewing video and audio recordings of the five-hour-long interrogation by Davis Police officers and FBI Special Agent Christopher Campion.

The courts, following Miranda, have ruled that in order for self-incriminating statements to be admissible, suspects must “voluntarily, knowingly and intelligently waive these rights before they confess.”  Moreover, Miranda shifts the burden of proof to the prosecutors.

Following an evidentiary hearing with testimony from police personnel including Trease Peterson, a Youth Intervention Specialist, Officer Eddie Ellsworth, a police officer who works as the School Resource Officer at Davis High, and FBI Special Agent Campion, the defense argued that, despite the apparent intelligence and sophistication of the young Daniel Marsh, the interrogation began under false pretenses and Mr. Marsh made repeated requests to go home.

The defense argued that these represented evidence that the prosecution failed to meet the standard that the confession was voluntary and that Mr. Marsh, despite being read his Miranda rights, intelligently waived those rights.

The prosecution laid out the case that Mr. Marsh was not a typical 16-year-old.  Michele Sharitz, who is a Police Services Specialist, a civilian position, testified that she runs a youth program and a cadet training program for 13- to 17-year-olds, which Mr. Marsh participated in as a 13-year-old.

She testified that he showed maturity and sophistication at that time beyond his years.  “Daniel stood out in a positive way,” she testified and later added that Daniel “was one of the people who stood out most in the 2010 class.”

Under cross-examination from Deputy Public Defender Andrea Pelochino, who assisted in this matter due to her expertise in juvenile matters, Ms. Sharitz acknowledged that there was no training in the program on interrogation of suspects, victims’ rights or Miranda rights.  Moreover, they were taught to follow the chain of command and taught about insubordination as a cause for discipline.

The testimony of Eddie Ellsworth illustrated the chain of events on the day of June 17, 2013.  Officer Ellsworth first met Mr. Marsh in the police youth academy and had had periodic encounters with him off and on during his duties as School Resource officer.

In September of 2012, he transported Mr. Marsh to the hospital during a 5150 evaluation.  He testified that, at the time, Mr. Marsh was coherent, he understood the questions and was compliant.

Officer Ellsworth testified that he had a cordial relationship with Daniel Marsh and had worked to earn his trust.

There had been a recent incident, prior to the June 17 interview, in which Mr. Marsh had a knife on campus and his mother had requested that Officer Ellsworth attend a meeting on the campus as a support person on Daniel Marsh’s behalf.

The morning of June 17, Officer Ellsworth described that there was going to be a major operation; they cancelled the Youth Academy, and he received an “ops order” in which he saw a picture of Daniel Marsh as the suspect in the double homicide in South Davis.

It was Officer Ellsworth who contacted Mr. Marsh at a residence on East Eighth Street – they wanted to contact Mr. Marsh and bring him in for questioning in a low-key manner.

Daniel Marsh, believing he was going to talk about the knife incident, was taken to the police station, where he spoke to Trease Peterson, who testified that she talked to him for approximately 30 minutes about the Youth Diversion program.

It was at that point when Officer Ellsworth took him into the interrogation room with Detective Ariel Pineda.

He was not placed under arrest.  Officer Ellsworth said that he asked him if he had weapons and observed that Mr. Marsh patted himself down – but he never himself made contact with Mr. Marsh.

It was in the interrogation room that Detective Pineda would advise Mr. Marsh of his Miranda rights, and eventually informed him that he was a suspect in the homicide investigation.

Special Agent Campion, a 25-year FBI Special Agent in the Sacramento Field office, testified that he was in on the five-hour interrogation of Mr. Marsh.  He had never met the defendant previously.

He observed that Mr. Marsh had understood the questions before him.  He followed the questions well and at times, he said, he jumped ahead of the questions.

He said he showed sophistication for his age and was a very intelligent young man.  He also testified that he used a story of a palm reader to illustrate that he would not be judgmental of Mr. Marsh; he said that that gave him a soft place to land and would allow him to confess to someone who would not judge him harshly.

In her arguments, Ms. Pelochino argued that the court needed to suppress all statements given after Mr. Marsh stated, “I need help.”  She said that the prosecution had failed to show that these statements were voluntary in all circumstances.

In particular, she argued that his youth, inexperience and mental health challenges made him uniquely susceptible to the suggestions of law enforcement and a veteran FBI special agent.

Ms. Pelochino cited research on juvenile susceptibility versus that of adults to confess or possibly falsely confess under pressure.  She argued that his apparent sophistication does not matter.

She argued that his past experiences with law enforcement made him more and not less vulnerable.  He had developed a level of trust for Officer Ellsworth, who used that trust to lure Mr. Marsh to the police station under a false guise that he would be dealing with a wholly different matter.  He told him that he would call his mother as a way for Mr. Marsh to relax, but did not do so.

Moreover, his experience in the youth academy made him more susceptible to outside pressure to submit to authority.  Despite his sophistication, she argued that Mr. Marsh had no training on the rights of the accused.

She argued that the prosecution improperly ignores that the police and FBI agent carefully crafted a theme to capitalize on Mr. Marsh’s youth, inexperience and mental health infirmities.  The FBI agent lured him into a false sense of security, offering to “help” Mr. Marsh and to “heal” him.

She argued that he made repeated requests to go home, which were akin to a newly-asserted right to remain silent after the conditions of the interview changed.  It was only after the investigators ignored Mr. Marsh’s repeated requests that he confessed after being played a phone conversation between two of his friends.

In his counter, Deputy DA Michael Cabral argued that this was “not a close call.”  He said that the standard here is the totality of the circumstances, as to whether the confession was given “voluntarily, knowingly and intelligently.”

Mr. Cabral argued that, while there was the ruse of diversion, Mr. Marsh was informed of both his Miranda rights and also the change of circumstances.  He was told that they knew he had knowledge of a double homicide.

Mr. Cabral argued that Mr. Marsh was not unsophisticated and that he showed uncommon understanding and sophistication for a 16-year-old.

He said that, contrary to arguments from the defense, Mr. Marsh challenged the officers at times.  Moreover, he noted that Marsh was not isolated or incommunicado during the five-hour interview.  He had his phone with him, was offered a chance to use it, and he even received a call during the middle of the interrogation.

Mr. Cabral argued that there is no evidence that the infirmities impacted him.  He argued that Mr. Marsh responded to police questions by stating that these were rumors and to “let me go home first to think about things.”

Mr. Marsh had said he realized he had a choice to make right before he confessed.  He said, “I’m f- either way,” and knowingly and voluntarily made the decision at that point to tell the whole story.

Following arguments, Judge Reed took about a half hour recess and then made a full accounting of the facts presented and the legal arguments.

He acknowledged that the burden was on the prosecution to show the totality of circumstances pointed to a voluntary confession by a legal standard of preponderance of the evidence.

Judge Reed evaluated the maturity, education level, mental condition of the suspect, the use of a ruse, the length, the leniency, and the asserted right to remain silent.

He noted that the defendant was 16 years old, well-spoken and intelligent.  The judge said that Mr. Marsh had a calm demeanor and appeared to have no distress until he confessed, and even then he remained calm.

Judge Reed ruled that all of this does not support the conclusion that the confession was involuntary.

Judge Reed noted that, under Miranda, there is no magic word or combination of words that create the renewed right to remain silent after Miranda rights are initially named.

He then evaluated whether the repeated requests to go home were the invocation of the right to remain silent.  He evaluated the circumstances in which his requests were at first ignored and then eventually he was told that he could not go home, that he was going to be arrested and detained at the juvenile detention facility.

Judge Reed ruled that this request was ambiguous or equivocal.  In evaluating the totality of the circumstances, he ruled that in this case the evidence does not show the defendant having difficulty communicating, and therefore he never invoked his right to remain silent.

He was not coerced and the judge ruled that Daniel Marsh “voluntarily, knowingly and intelligently waived his right to remain silent.”

Therefore, the motion to suppress his statements were denied.

Judge Reed granted a defense motion to continue the trial until April 14, with a Status Conference set for March 21.

—David M. Greenwald reporting

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About David Greenwald

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

32 comments

  1. Good choice, albeit late, to change the banner photo for this story. I respectfully request you do the same on the page itself. The original picture posted, in my opinion, is inflammatory.

    • Nothing has been changed.

      • This morning, the lead-in photo was the same as the article’s. Still recommend, and encourage a different image for the article. Perhaps one of the many images captured during the court process. I would consider that decent.

        • As far as I know, I always set up the photos this way. You have to get permission to take photos in the court, and I have requested permission. Also, I wanted a photo closer to what he would have looked like in the interrogation.

          • Understood… sounds more like an “artistic” decision, rather than a “reporter” dealing with a minor.

  2. I am unclear on what constitutes the exercise of one’s Miranda rights.
    Does one actually have to state “I will not talk with you without a lawyer present” or does some lesser expression of desire not to talk also count. Would we expect an adult without legal training to know exactly what they had to say let alone a 16 year old no matter how “mature” he may have appeared in a non legal setting ?
    It would seem to me that statements such as requests to go home and “let me go home first to think about things” would seem to be clear expressions of the desire to not talk at that time.
    When the judge sites a “preponderance of the evidence” how is time frame taken into account. Of course, if someone is held against their expressed wishes in an interrogation setting is it not likely that they will eventually make a statement that can be used as incriminating ? How is detention in an interrogation setting in and of itself not after some point in time “coercion” ?

    • Someone much more knowing than I, will probably fully answer your question, but I think the ‘magic words are on the line of “I will not talk further until I’m represented by counsel”.

      • And I think you prove the point here – you expect a kid under those conditions to know to state those exact words? Case law says no. But there was no way a judge in this county and in this case would have ordered the confession suppressed.

        • I don’t expect a child to know the ‘magic words’. I hope you are not implying that I suggested he should, as that would be incorrect, at best.

          • I apologize if I misinterpreted your comment

          • Could be me looking at the precise meaning of words… You said ‘you expect a kid…’. Had you said “society should not expect a kid”, I would not have felt a need to clarify. I have met this boy a few times, and know one of his parents fairly well. I grieve for the situation and all involved, including the victims, their family and friends, and the accused, and his family and friends. There will be no winners in this, no matter what the outcome of a trial. The situation is tragic, and I reiterate, please (pretty please?) change the image on this page.

    • That’s a real question here when you have a juvenile. I remember back in 2006 when the question came up with regards to Halema Buzayan asking for an attorney, I was told by experts that the burden is higher for authorities to make sure with juveniles because of lack of education/ sophistication. Daniel Marsh may have been an intelligent kid, but he’s not an adult in that spot.

    • MEDS: “I am unclear on what constitutes the exercise of one’s Miranda rights.”

      The police have to do two things: first, they have to advise the suspect that he has the right to remain silent and that if he says anything to them, that can be used against him; and second, they have to advise the suspect that he has the right to an attorney to advise him.

      MEDS: “Does one actually have to state, ‘I will not talk with you without a lawyer present’ or does some lesser expression of desire not to talk also count.”

      I am not sure. However, I have watched more than 100 episodes of The First 48 (a program which shows real cops investigating murders in various cities across the U.S.), and in every one they have shown the interrogation process. With most experienced criminals–that is, suspects who have previous felony convictions–the interview ends very fast. They will usually try to say they are innocent, you have the wrong man or I have no knowledge of the case, but quickly thereafter they say, “I want my lawyer.” I have also heard interviews end when the cop reads the suspect his Miranda rights and then asks, “Do you choose to answer my questions?” and the suspect responds, “No.”

      What happens most often, though, is that the suspects think they can somehow outsmart the cops on their own. They have no idea that the homicide detectives have a lot of evidence (physical and testimonial) which ties them to the crime, and that all the cops are really looking for is a confession or an explanation of motive. (Occasionally, the suspect will admit everything up front, saying the killing was self-defense or an accident.)

      MEDS: “Would we expect an adult without legal training to know exactly what they had to say let alone a 16 year old no matter how ‘mature’ he may have appeared in a non legal setting?”

      If the person (adult or juvenile) is intelligent, I would say yes. Of course, most people charged with violent crimes are not smart. And the prosecutors take advantage of that.

      One more thing of note I have learned from The First 48: there seem to be some states where, any time a juvenile is charged with a serious felony like murder, his parent(s) or guardian must be with him in the interrogation room. I’ve seen that in cases in Florida and Tennessee. The First 48 has never had any cases from California, so I don’t know what the law is here in that regard. But this case suggests we don’t have that same requirement.

      • RR: “Occasionally, the suspect will admit everything up front, saying the killing was self-defense or an accident.”

        I recall an interesting case from Cincinnati where this happened. A 9-1-1 call led the police to an intersection, where a car was stranded with the driver slumped over the steering wheel, shot dead. The police investigated for weeks and eventually figured out (based mostly on eyewitness testimony) who had shot the dead guy. When they brought in the suspect for questioning, he said it was self-defense: that he had been walking along the street, minding his own business, when a car pulled up and a bunch of guys in a car started shooting at him. He said they missed, he pulled out his handgun and fired two shots. He was not sure if he hit anyone. All he knew was after he shot his gun, he took off on foot and no one fired at him again.

        It ultimately turned out that all the physical evidence supported his story. Also, it turned out he hit one other guy in the car beside the driver. That guy went to the hospital that day; and he later blabbed to a couple of people about what had happened.

        In the end, the “suspect” who shot the driver dead was allowed to walk free. And the guy in the back seat who was shot and then fled was charged with felony murder, because his friend was killed while they were committing attempted murder.

      • Rifs

        “If the person (adult or juvenile) is intelligent, I would say yes.”

        I do not see this as a matter of intelligence. I see it is a matter of having acquired a very particular bit of knowledge of how our system works and how to use it to one’s own advantage. One might counter with the idea that the police are obligated to inform the suspect of his/her rights. My objection to this is that the officers are also allowed to lie to a suspect if they feel that their lying will yield desired information. So how is an accused to sort out just what they are being presented with is true and which are lies ? And given this uncertainty, how can we reasonably know, especially when they are being lied to, just what action is in their best interest ?

  3. I’m sure we’ll get many posts from the usual Davis liberal crowd saying he was coerced or somehow the process was unfair but the judge made the right call.

    • I don’t agree at all. This was a 16 year old, he was questioned for a long time, requested to leave, and no one checked to see if he wanted to talk to his parents or an attorney as they proceeded. I’m working to get an expert to comment on this in a follow up, but there is emerging research on the susceptibility of juveniles to interrogation tactics. The judges reasoning is actually directly contracted by new research.

    • GI

      My post was purely to elicit information about what the minimal trigger is to determine that an individual has exercised their Miranda rights and therefore cannot be questioned further without legal representation. Since you have made the assertion that the judge “made the right call ” perhaps you have the legal knowledge to answer my question about what the necessary wording is by the person being interrogated that will stop the interrogation based on Miranda rights.

  4. Picture: I like the photo because for me it shows he had some problems – wasn’t up to cutting his hair and doing what most other kids were doing. He’s been quoted by friends as saying he was “on the dark side”, indicating most probably that he was bothered by voices and strange thoughts and probably trouble sleeping.

    Judgment: the judgment portion of his brain would normally not finish developing until he’s about 25 years old, based on MRI research studies. With health and nutrition and stress and sleep issues, it would take a few years longer for his brain to mature. That is, he has/had the decision making ability of a child. (Successful teens are pretty much simply modeling their parents behavior, following their parents directions.)

    Confession: Amongst other problems, the way the interview was structured, with an FBI agent included, it’s clear they were intent on forcing him to make a confession.

    Juvenile Court: Have I missed an article on this? Has there been a hearing on whether this should be in juvenile court?

    The obvious course of action is to sentence Marsh in juvenile court and order mental health treatment.
    But with folks like Bob Dunning clamoring for vengeance and signaling to the court that Marsh should be put away forever, this court is not a neutral location to hear the case.

  5. Why is it okay to put up his picture and talk about this minor by name but not the Peterson child? This seems inconsistent.

    • David Greenwald

      Murder versus volleyball scandal?

      • As it relates to young Mr Marsh, is it murder, or accusation of murder, from your perspective? Think ig I was the defense attorney, I’d ask every potential juror if they had read your blog, or the Emptyprize on this matter. If the answer was “yes”, I’d ask the judge to have the potential juror excused, for cause.

        • David Greenwald

          I understand your point, but my point is this: I think the Judge was wrong here and that the rights of minor were run over by police whose actions were rubber stamped by a judge for political rather than legal reasons and that should be the topic of conversation here, not which photo I used.

          • The judge got it right. Is anybody arguing that the confession was untrue or only that it shouldn’t be admitted. They read him his rights and his confession led to physical evidence. No judge is going to throw all that out on the notion that they did something wrong.

            As for volleyball versus murder. Does the magnitude of the situation make it different. If that is the case where is the line? I find it ironic that we have this double standard. When it was Halimah Byzyan the Enterprise posted all sorts of stuff about her on its website. Now when its a school board member’s kid whose performance is a legitimate issue because of its relevance in piecing together the coaches state of mind everyone is all about protecting the child. All I’m asking for is consistency.

          • David Greenwald

            We haven’t heard the defense yet, so we have no idea what they are going to argue. Whether it is true or untrue, it has the potential to lead to a false confession.

          • What am I missing… I thought the defense was trying to exclude the ” confession”… how have we not heard from the defense?

          • My point is that the decision has a 50/50 chance of being turned over on appeal, if the family can afford that, should it be necessary. You say you think the judge was wrong, yet you posit a very negatively charged photo in the article. Which i it? Are you trying to influence folks that he’s guilty, showing the “incompetence” of the Yolo County Court, or just emulating William Randolph Hearst to get the most readership, hits, comments?

          • BTW, do you have a sled labelled “rosebud”?

    • In the volleyball issue, the ‘adults’ (yeah, right) were the protaganists. It is trivial. In the judicial process in the other matter, it is serious, tragic, and difficult for at least two families. My only concern is that the most negative image I have ever seen of thechild, is the one that leads off this story. David’s call, but I still question it.

  6. Today’s Bee quotes Maupin’s daughter after the hearing: Victoria Hurd said family and friends were “ecstatic about today’s (Friday’s) decision” and “restores faith in humanity in the midst of this depravity.”

    She’s missing some humanity herself. Apparently she knows nothing about neurological disabilities.

    This case isn’t so much a prosecution as it is the abuse of a disabled child.

    Photo: The local newspaper had a picture initially in which Marsh appeared overwhelmed, depressed, bewildered. It said a lot.

    • Not simple… a couple is dead. Two people dead. The couple were not responsible for their death.
      All the families involved need to grieve.
      Not sure where “justice” is, but I’m pretty sure at least two families have been seriously hurt, and that may well continue.
      I think we need to have this play out with a minimum of “Monday morning quarter-backing”

  7. anonymous pundit

    Reed got it wrong. That was his intent, in an effort to help the prosecution. The prosecution should be able to prove the case without a “confession” and without the “assistance “of the accused. That is the basis of our criminal system. It is corrupt for a judge to assist the prosecution or to rationalize how it is acceptable for someone to give testimony against themselves; particularly, in the case of a minor with apparent mental health issues. In this case, the accused is getting railroaded, rather than the help he needs. This case should be removed from Yolo County, to assure an impartial process.
    And, all of the judgicial candidates should be asked how they would have ruled.

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