Eye on the Courts: Troubled by Marsh Confession

Last week, we broke down two troubling aspects of the Daniel Marsh case. The frequent response when we have raised the issue of the confession has been whether we believe that he falsely confessed – in this case, no, we do not. There was enough other evidence to convict Mr. Marsh – which actually makes the way the confession was handled all the more troubling, as it was unnecessary.

It is as though the result is the only thing that matters in a case involving, at that point, a 16-year-old juvenile. Empirically, we know that false confessions happen and we know that they are far more frequent among juveniles. During the suppression hearing, the prosecution made the case that Mr. Marsh was more sophisticated than many other juveniles – nevertheless, he was not an adult.

During that suppression hearing, Andrea Pelochino of the Public Defender’s office argued that Daniel Marsh’s 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.

So the first problem here is that Daniel Marsh was a juvenile. His mother was not allowed to be present. He had no lawyer. There was no one acting in loco parentis here.

The second question is that, while he initially waived his Miranda rights, at what point did he reassert them? When the judge ruled on whether Marsh reasserted Miranda, he noted that, under Miranda v. Arizona, there is no magic word or combination of words that create the renewed right to remain silent after Miranda rights are initially waived.

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; 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.

But the experts we talked to at the time were skeptical of the judge’s ruling on Miranda, noting that courts have to give juveniles the benefit of the doubt, that they may not know their rights or be able to assert them the way an adult would.

Judge Reed ruled, however, that in this case the evidence does not show the defendant having difficulty communicating, and therefore he never invoked his right to remain silent when he asked to go home.

The third problem here is the length of the interrogation. His was only five hours, but for a juvenile to be under that kind of pressure and separated from support mechanisms is a long time. Eventually not able to end the interview, not able to assert his right to remain silent, he broke down.

What is particularly troubling here is the way that the police managed to do this. As Ms. Pelochino would argue at the suppression hearing, 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.

We heard this when the confession was played during the trial.

We see this at play during the confession when Mr. Marsh at times wanted to leave, and at times wanted his attorney or his parents present, but was denied all of those. In a hearing this past spring, Judge Reed allowed the confession, but we can see the problems.

Veteran FBI Special Agent Chris Campion repeatedly told Daniel that he was his healer: “Now, Daniel, this is your time to heal, I am here to heal you, this is your refuge.”

This is a common tactic by interrogators – they create conflict and attempt to back the individual into the corner so that he or she sees the only way out of the situation is to confess.

As we noted last week, “Youth are more naive, trusting, fearful and more easily misled. Investigators can more easily suggest to juveniles that they face harsher consequences if they don’t confess, and much lesser consequences if they do. After hours of interrogation, studies have shown, many youthful suspects will conform their stories to cues from detectives, believing they can then finally go home.”

Police and prosecutors like to use a totality of the circumstances argument, and here we offer one.

Daniel Marsh was a 16-year-old. He was lured to the interrogation room under false pretenses and agreed to waive his Miranda rights, believing he would be interrogated on a knife incident. He was kept in the interrogation room for five hours, denied his mother, an attorney, or the chance to leave.

The veteran FBI Agent Campion then gave him an out and promised to heal him, ultimately inducing him to confess to the crime.

As we have noted, there are a number of false convictions that end at this point. They have the confession and little other evidence. Sometimes the jury weighs the confession so heavily that they ignore exculpatory and contradictory evidence.

In this case, you have physical evidence, and the fact that Mr. Marsh had bragged to his friends about the crime, to bolster the confession, but other than the fact that the confession was videoed, the police abandoned evidence-based practices in how they went about obtaining the confession. Under other circumstances, we would be alarmed more than we are at how this was conducted.

It is clear that many in the community are satisfied at the bottom line that a heinous murderer was caught and convicted and will not be able to kill again. Nevertheless, as we look forward, we should be troubled by the treatment of this 16-year-old.

—David M. Greenwald reporting

About The Author

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.

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50 Comments

  1. Rich RifkinWDE 73

    David, if you think the police did something wrong in their interrogation of Daniel Marsh, you should get a copy of the full videotaped interview and publish it on the Vanguard, so your readers can judge for themselves. AFAIK, the video is public record, now that the case is closed.

      1. Rich RifkinWDE 73

        I have tried to figure out the CPRA exemptions without filing a public records request for the videotaped confession. Perhaps a Vanguard reader can find specific language which would make the videotaped interview exempt from CPR. Here is where to look:

        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=06001-07000&file=6250-6270

        I could not find anything which specifically exempts documents of evidence which has been used in a criminal proceeding. This language says that all witness statements must be fully disclosed, but it limits to whom the evidence needs to be disclosed to:

        6254(F) “State and local law enforcement agencies shall disclose … statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation.”

        Perhaps it is true that the Yolo County DA would not be willing to give the Vanguard or any other media outlet a copy of the videotaped* interview with Daniel Marsh, if the law does not require them to do so. However, it cannot hurt to ask.

        *6252(G) makes it clear that public records which are “recordings” are included equally with any other written records for purposes of the CPRA:

        “Writing” means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.

        1. KonaOhana

          Has it occurred to you that the events leading up to the interrogation, the lies the cop who pretended to be a friend to Dan while manipulating him, telling him not to worry  that he would call his mother sho shed know what was going on. This obviously misleading this child to believe still this lyer was his friend. This action in itself had conceived the entire youth of this community to conclude the cops, FBI etc can not be trusted. That their ALL liers. That the ends justify the means. This is a huge community of poor teens, teens,& tons adults more will never trust the cops again.  After the obvious intent to destroy a child’s civil and legal rights has forewarned this generation. Too never ever trust. To always demand an attorney before any discussion any fusions no matter how innocuous it may appear. That cops simply can not be trusted. It was said this same COP pretended for over a year to befriend the boy going to his home visiting him all the while this was just a game to the COP to manipulate control him. . This behavior is like what the Nazi Brown shirts did to undermine their democracy in the 1930’s in a lead up to their fascist take over.  The ends do not justify the means , ever when dealing with children or a society .  whatever is said in any interrogation is subject to a great deal of misleading intentional actions thus making this recording inadmissible in many states in our country. Especially with regard to the timing of the rights being read at a time when the discussion was regarding an argument at his school that must have been resolved before any cadet position being awarded. several different events were discussed.

          The real underlying cause was the medications called SSRI’S that by the FDA required WARNING label indicates cause suicide& murder in a large percentage of the unfortunate patients. Unfortunate especially when this warning was never mentioned to Mr Marsh or anyone in his family per Dr Merikangas testimony. This entire hugely unfortunate situation could have been prevented had any of his many doctors read the others notes or file. Or through do diligence warned everyone about the possibility of these horrific contraindications. If they had the research young Dan did to try and figure out what was happening to him would never been necessary. This search to understand was presented in the typical misleading comments by the DA as a blood lust. When it seems clear to me it was his hope to discover what no one at Kaiser had warned him of the answer to the progressive descent into madness.

           

    1. KidsInk

      Defense is appealing.  Dan needs better defense than   Ron Johnson provided, he was far too lax while the prosecution was thorough, looked organized  and  more energetic in it’s efforts to convict.   There were also two on the prosecution team and only one on the overworked defense team.  Why is that?

      Why it even got to trial after his constitutional rights were violated shows how little regard the Yolo courts must have for the  Constitutional rights of citizens, rather than their own desires for personal”safety” , machismo successes and quickly closed cases.    I was shocked at the verdict!

      Several problem people mysteriously disappeared from Davis  last year  right after these deaths. Some of them knew the Marshes and could have easily left behind this souvenier jacket they assumed belonged to Dan.  I have seen so many Davis police foul ups it’s rather laughable that they would be taken seriously, now.  Everyone know’s they can pull one over on the local police, and not just residents.

      The slant towards guilt for this young man was obvious, but that is the usuual conservative  and manipulative slant for most Davis  news.   They clearly wanted the public to see things their way more than they wanted to seek the truth or protect this teenager from the vindictive revenge oriented tactics of the  hell  bent prosecution and the victims family.  They, in my opinion were inappropriately gleeful  too soon after the death of “loved ones”  they chose to live states away from.   Was it because they had not only fooled the police, but the prosecution team and a jury with such brutality?  Wasn’t it said that it seemed a “deeply personal” crime”?    Why would this young man have deeply personal feelings about these people?  By the time he got to court he had been locked up for a year. He was afraid, and at that point, probably would say anything, admit to anything at the promise of  release, true or false  He was not allowed to speak in his own defense, this “would be adult”,  and  why not?  I myself saw one of the court  bailiffs take a paper off the desk of the judge while the judge was in recess, without asking anyone and throw it in the trash.

      All of the prosecutions remarks were geared towards  a psychotic killer  approach “the souvenier” remark was throw into that context.  If  it was a gift from someone else was never mentioned.  Perhaps he fears for his own life now if he tells us what her knows before the real predator is caught.  The doctors stated that Dan was not psychotic, but depressed.  These acts were the acts of an insane person, not a sane person.  A “sane” person would have though through the possible consequences of his actions.  Insane people,  like alcoholics in denial often don’t think their actions are crazy.

      If you have never spent any more than three days in a penal institution,  you have no idea the harshness of it or how it could effect someone so young.  In my opinion, yolo courts are oversensationalizing things.  There is so much white collar crime and fraud in Davis, they do it like breathing in and out.  Northrups “good friend ” Jenkins spent a great deal of time at the G street pub, drinking and prosthetizing about what a monster this child was. Thes e articulate adults are just better at defending  and rationalizing  thier own monstrosities.  You know what they  say about alcholics “when their lips are moving , they’re lying.”

       

  2. Barack Palin

    “It is clear that many in the community are satisfied at the bottom line that a heinous murderer was caught and convicted and will not be able to kill again.”

    It’s sad that only “many” and not “all” are satisfied with the bottom line.

      1. Barack Palin

        Suboptimal in your view, not the court’s. It possibly kept someone else from being bludgeoned by a baseball bat, I would hope you were satisfied that the cop’s process got him off the streets before that possibly occurred.

        1. Barack Palin

          Clarification: I meant to say “I would hope you were satisfied “with” the cop’s process “that” got him off the streets before that possibly occurred.

          1. Davis Progressive

            i think the concern behind this article isn’t daniel marsh per se, but the next kid who falls into this circumstances and what if the police were wrong and got an innocent kid to confess? at the time, they only had the evidence from his friends – what if his friends were messing with them, he confessed and was incarcerated? far fetched? read some of the cases in the wrongful conviction archives. the police ended up not needing the confession to make their case.

    1. Elizabeth Bowler

      Simply put, not everyone believes that the ends justify the means. For example, the use of torture as an interrogation technique is not something that I approve of, even though many argue that torture can yield valuable information at times. Similarly, I do not believe that deception should be used in the interrogation of juveniles, even though, at times it can also yield valuable information. In both cases, the chance of obtaining false information is very high, not to mention the fact that the use of these techniques is offensive, at least to some of us.

  3. South of Davis

    BP wrote:

    > It’s sad that only “many” and not “all” are satisfied with the bottom line.

    If the city of Davis hired the OJ Simpson “Dream Team” to represent Marsh and the police never asked him a single question “some” in Davis would “still” not be “satisfied”…

  4. Frankly

    Frankly (because I am), I think this recurring VG theme on the Daniel Marsh trial is indication of a more general and widespread challenge dealing with victim mentality and Neuroticism.

    From Wikipedia:

    In the most general sense, a victim is anyone who experiences injury, loss, or misfortune as a result of some event or series of events.[1] This experience, however, is insufficient for the emergence of a sense of victimhood. It has been suggested that individuals define themselves as a victim if they believe that:
    – they were harmed;
    – they were not responsible for the occurrence of the harmful act;
    – they were under no obligation to prevent the harm;
    – the harm constituted an injustice in that it violated their rights (if inflicted by a person) and/or in that they possessed qualities (e.g., strength or goodness of character) making them persons whom that harm did not befit they deserve sympathy.

    The desire of sympathy is crucial in that the mere experience of a harmful event is not enough for the emergence of the sense of being a victim. In order to have this sense there is the need to perceive the harm as undeserved, unjust and immoral, an act that could not be prevented by the victim. The need to obtain empathy can then emerge.

    Part of this is understandable given Daniel Marsh’s young age… and our human tendency to want to protect children and seek answers for the inexplicable.

    But there is a very clear and simple perspective here related to the shortness of human life, and the societal need to prevent one from taking it away from another. Murder is the most heinous of human acts and we should have zero tolerance for it. The fact that we would have zero tolerance for certain speech, but develop empathy for a convicted murderer, is not only absurd… but it is a sign that we are ignoring our primary social need to prevent murder. Because a murderer executed or locked up for the rest of his life is an absolute prevention of that person’s future potential to murder again.

  5. theotherside

    I’m good with it. A murderer, and sociopath, was convicted and will not see the light of day under freedom again. The law was followed, as Judge Reed confirmed during suppression hearing. I do take exception that you say the Marsh asked for a lawyer and was denied. I’d like to see that portion of the interview. Because had that happened, Miranda would have been violated and the confession would have been suppressed. I am sure Judge Reed is up to speed with that case law.

    Let’s not forget who the victims are in his case. The two dead people, their families, and that community. Marsh sneaked in and stabbed them dozens of times in their sleep, placed items inside their orifices, then bragged about it during his interview. Throw that key away.

      1. theotherside

        No, I am good with this one. These are case by case issues and the law was followed here. We can all find that one extraordinary case to prove our own points…I’m just not in a Googling mood at the moment.

        1. Davis Progressive

          see that’s the problem – the same techniques that allow you to get a confession in marsh, mean you get a false one with the kids from the central park five. you have to have consistent rules.

          1. Frankly

            We have consistent rules, but we have varying methods because people are doing the interrogating and people are being interrogated, and last I checked, people are different.

          2. theotherside

            And the next kid will get a suppression hearing…case by case following the same rules and case law.

          3. Davis Progressive

            frankly – we don’t have consistent rules. new jersey passed rules based on recent research to clarify the rules, but california has yet to follow suit.

          4. Davis Progressive

            tos – is that really how you want rights to be enforced based on the whim of the judge and an inconsistent application of vague constitutional rights?

        2. Tia Will

          Then I would like to direct you to the case in the New Yorker this week which relates the tale of a 17 year old held on Riker’s Island for three years
          ( that’s right, years not months) because multiple prosecutorial case delays and his unwillingness to lie and confess to a crime he did not commit although he was offered a “plea deal” a number of times, to see if you are also alright with that.

          No one that I am aware of is saying that the guilt phase of this case was not handled appropriately. That is not the claim although that is the claim many want to keep addressing, perhaps because it is simply easier and more in keeping with their own judicial and law and order stance than would be really looking at some of the obvious problems with our system.

          1. theotherside

            I agree, that sounds like a tragedy if the case…if. There are rules and case law for speedy trial in place. Honestly, a lot of that falls on his defense attorney for letting him sit there that long. Let’s not throw the baby out with the bathwater though.

  6. tj

    It’s up to the courts to set and enforce the limits, and too often they don’t do that, especially when they’ve formerly been prosecutors.

    Law enforcement will always push the legal limits, believing laws don’t apply to them.

    In O.J.’s case, detectives working on the case knew the evidence was bogus, but didn’t rat out their friends, i.e., fellow law enforcement.

    1. Barack Palin

      “In O.J.’s case, detectives working on the case knew the evidence was bogus, but didn’t rat out their friends, i.e., fellow law enforcement.”

      And you know this how?

      Do you think O.J. really was innocent?

      1. South of Davis

        BP wrote:

        > Do you think O.J. really was innocent?

        Many on the far left (that blame members of a single religion for most problems in the world) think he OJ is innocent because it was a “murder suicide”…

          1. Davis Progressive

            i watched the trial. it was embarrassingly sloppy but the evidence was overwhelming for guilt.

          1. Barack Palin

            TBD, LOL

            Since Marcus Allen and Nicole Simpson were rumored to be having an affair maybe O.J. planted Allen’s Super Bowl ring at the killing to make it look like Allen did it.

  7. tj

    One of the detectives involved in the case was a relative of ours, that’s how I got the info.

    If you watched the video of OJ picking up his daughter, it was evident that he was quite impaired after years of football, not able to kill 2 people at once.

    And if you read about Nicole, esp a lengthy article in the New Yorker, and others too, you would find many problems and a certain amount of amateur cunning on Nicole’s part. It’s likely she tried to con the wrong person.

    1. Barack Palin

      “If you watched the video of OJ picking up his daughter, it was evident that he was quite impaired after years of football, not able to kill 2 people at once.”

      So you think O.J. was innocent. LOL, it figures.

          1. tj

            The problem with right wingers is that they can’t absorb new information, that’s why they’re so (proudly) ignorant.

            A little moderation would be a good thing.

  8. DurantFan

    “……;,His (interrogation) was only five hours …. ” Hell, that should have been a “snap” for a messed up and legally ignorant JUVENILE like him to withstand! The guilty verdict for this tragedy is legitimate, but I don’t think the sane verdict is. Neither should have been celebrated as the Enterprise recently did with a front page photograph.

  9. Frankly

    The problem with right wingers is that they can’t absorb new information, that’s why they’re so (proudly) ignorant.

    And I bet you believe that the CIA and FBI and Israel all conspired to bring down the World Trade Centers too. Google all the new information out there that backs this belief. Are we all proudly ignorant of that too?

  10. KonaOhana

    urant Fan , I agree.    After so many years of these children of all ages dying from  taking these drugs SSRI’S causing hundreds of thousands of suicides and murders since they were introduced in the 50’s.  The gov’t has issued yrly totals of both suicides and deaths. The agencies that follow these deaths concluded that the vast majority are the result of these drugs. It’s easier to deny the cause and effect. To live in denial can appear to be comfortable until someone in your family is effected like Robin Williams, Phil Hartman, Columbine, UC Santa Barbara. Some react in days others in years. The serotonin disorder does effect everyone that takes these drugs. Some are drastic fanatical some effects are seemingly subdued until at some point the effect is made obvious thru suicide or murder or any number of several major diseases are being attributed to the consumption. To assume all is well now that this young boy is in jail. It’s to far from reality. When in fact est of 1/3 of patients have serious contraindications and kill others our themselves without warning in some cases others there’s years of earnings the doctors ignore it odd stupidity.  Try learning how to protect your self or families. http://www.ssristories.net. Breggin.com. or http://www.drugawareness.org. search the net or YouTube re SSRI’S & find hundreds of doctors WARNING of the dangers and thousands of citizens WARNING of severe dangers.

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