Defense Motion Challenges Constitutionality of Marsh Sentencing

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by Antoinnette Borbon

Daniel Marsh’s defense attorney, Ron Johnson, filed a motion detailing claims of cruel and unusual punishment being imposed on a defendant by the government.

The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights that prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments, including torture. The U.S. Supreme Court has ruled that this amendment’s Cruel and Unusual Punishment Clause also applies to the states through the Fourteenth Amendment. The phrases in this amendment originated in the English Bill of Rights of 1689.

It is defense’s contention that Daniel Marsh may be able to be rehabilitated and that giving out a sentence of 52 years to life would be cruel and unusual, since he was so young at the time of the crimes.

Daniel Marsh has been convicted of lying in wait in the early morning hours of April 14, 2013, then entering through a window into the home of Oliver Northup and Claudia Maupin, where he took the lives of the elderly couple.

Authorities learned of Marsh’s involvement through Marsh’s best friend and ex-girlfriend, after they made a call to police. According to the two, they had knowledge of what Marsh had done for two months.

Deputy District Attorney Amanda Zambor stated in her opening that Marsh’s actions on that night were “calculating, cunning and sadistic.” Deputy District Attorney Mike Cabral stated that Marsh took pleasure in torturing the two victims, “bragging about the crime to friends.”

After the murder phase was over, jurors had to determine Marsh’s sanity during the commission of the crimes. It took jurors a little over two hours to decide that Marsh was sane at the time.

A few jurors were seen to be shedding tears as the clerk read the verdict.

During the four-week trial, several doctors, psychiatrists, psychologists, therapists and counselors took the stand to talk about Marsh’s background and his state of mind for the previous couple of years.

Medical and mental health witnesses, including those designated as experts by the Court, had contradicting theories as to Marsh’s mindset, some stating, “He was playing up his statements for the NGI [not guilty by reason of insanity] defense.”

But other health professionals who testified said that Marsh could very well have been in a “dissociative state during the commission [of the acts].” Even the state’s forensic doctor could not rule out the possibility of a “dissociative state,” opining that the possibility had just not been looked into further.

Marsh had expressed his suicidal and homicidal thoughts for a period of at least two years before the deaths of the elderly couple. But, keeping confidentiality, health professionals did not report it to the police.

Defense attributed much of Marsh’s actions to the SSRIs (selective serotonin reuptake inhibitors) doctors had prescribed. Deputy Public Defender Johnson expressed to jurors during his closing how the system had failed Marsh, and “we also know that his parents were not on top of things.”

After more than a few suicide attempts, Marsh continued to spiral out of control with his thoughts. He expressed to his therapists that he felt “agitated, angry at having thoughts he wanted to go away, that he wanted to feel better,” as the defense stated during the trial.

Some health professional witnesses had little knowledge of the “black box warnings” for the SSRIs, nor the effects of such drugs on a child. Marsh was a Kaiser patient and had been treated by several doctors, therapists and other professionals during the years prior to his arrest and conviction.

A hearing will be held on December 12, 2014, to determine whether or not the sentence is appropriate for Daniel Marsh and does not violate his Eighth and Fourteenth Amendment rights.

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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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15 thoughts on “Defense Motion Challenges Constitutionality of Marsh Sentencing”

  1. Davis Progressive

    this is not a throwaway motion.  i doubt that yolo will take it up, but it eventually could get heard at a higher court.  the state has already removed life without parole as a possibility.  a 52 year sentence minimum would place marsh at just about 70 by the time the determinative portion of the sentence ends.  is that high a base, in effect, a life without parole?  it could well be.

  2. DavisBurns

    While we all know Marsh committed these crimes and needs to be locked up, we have screwed up the justice system because we have such a limited definition of insanity.  We changed the law via proposition in response to the Twinkie defense used as a cause of diminished responsibility in the murder of Harvey Milk.  Just as we undid some of the harm caused by the three strikes proposition, we need to restore diminished responsibility.  And we need to stop governing by proposition because it invariable leads to unintended consequences like this which leads to more propositions to fix it. Had the jurors been allowed to find Marsh not guilty due to  insanity, I believe they would have.  We don’t actually know Marsh’s diagnosis nor did we know it during the trial.  It seems plausible that he can be treated and he shouldn’t face 50 years in prison.

    1. Barack Palin

      And we need to stop governing by proposition because it invariable leads to unintended consequences like this which leads to more propositions to fix it.

      So I guess you’re against Prop 47.

  3. KonaOhana

    It’s my opinion from what I’ve read about the testimony that the doctors at Kaiser were so overwhelmingly incompetent that the fact none of them read the others reports or comments in his record none of them  talked over Daniel’s case his comments feelings. They absolutely failed him.

    The jury gave no serious contemplation as to the mental effects and causation by these drugs.  The two court appointed shrinks were sho badly informed and incompetent to make a diagnosis of what state of mind Daniel was in at the time of the murders. Their interview with him was done over a year after the event. A year after Davis doctors in the jail had removed him from the drugs. So they were interviewing Daniel after he had over a year to withdrew from the SSRI’S and have his mind heal. Through medical tests the jail doctors discovered he had serious food allergies that caused serious mental& physical effects that these court shrinks didn’t take into consideration.  It seems that they came into this case with preconceived beliefs and conclusions. Any interviews as to Daniel’s mental condition should have been done at the time he was first arrested for these doctors that have such minimal training. They admitted they know nothing about SSRI’S or the effects these drugs cause everyone that takes them. That is the worst possible honest. Evacuation of anyone. Especially an interview that was to have a lifetime effect on Daniel’s life.

    The Prosecuting attorneys had no interest in the truth. They were and are still interested in revenge and winning nothing to do with what Mr Chip Northrup the victims legal careers focus was to protect the young that like Daniel were  being abused by the system and thus mentally ill.  I have no intent to minimize his death but I do believe his lifetime effect had been ignored. That’s not fair.

    The laws were changed to minimize protection for mental illness. The children are being put on trial as adults  which is absurd beyond ridiculous. Daniel’s trial should have been in the juvenile court. The confession was in my opinion was obtained illegally by the mentors use by LYING,  swearing to Dan his mother would be called. He was a boy trusting his mentors, friends as they grilled a child for five hours until his emotions broke. A child on drugs that ACT like Lsd, psilocybin etc they’re all serotonin based drugs. They create a nightmare while awake state that the child is not aware they’re in living a dream a nightmare.

    I’d suggest put the cops that grilled Dan on Lsd for two years and see how they ACT. While the doctors continue to tell you it’s normal. The irrational crazy constant unrelenting thought of suicide them become of murder. Where ultimately those thoughts can no longer be controlled and see how the cops and doctors do. See if they are sane.

    1. sisterhood

      “The children are being put on trial as adults  which is absurd beyond ridiculous. Daniel’s trial should have been in the juvenile court.”

      I agree.

       

  4. KonaOhana

    The courts have been dealing with thousands of trials like Daniel’s . That are forcing the laws attorneys judges to take an honest vie of these SSRI’S and the effects of murder, and murder/suicide across the world. Many books have been written exposing the truthful nature of how horrifying these drugs are. The effects & result of actions caused by the  drugs are the same. Over and over. The actions by the patients are typical. The methods are the same.

    A great book to read by Dr Ann Blake Tracy is ; Prozac Panacea or Pandora. It was write in the late 70’s updated since to be a physicians reference you warn and awaken doctors to the obvious horrifying assault being launched into the patients especially the children. Everyone under 25 yrs old that takes these drugs has a negative effect. A liver enzyme condition that exists in 1/3 of the population makesone far more susceptible to the absolute worse reactions caused by these drugs.  Big Pharma mainly Eli Lilly has spent hundreds of millions to cover up these horrors.  Pres. JFK stores their production but after his death it began again. Finally just recently the black box WARNING was required. That’s the last step to pulling a drug from the market. I can’t imagine how many millions of deaths it will take, the ruined lives before the FDA, Congress, doctors finally say enough. We will kill no more children. Cause no more suffering of innocent deaths murders, suicides for profit.  That we will prosecute the makers, the doctors they are the guilty. They’ve known since 1960 these drugs are to dangerous, they gave know rewarding value.

    Dr Peter Breggin had fight the FDA, AMA, NIMH, as a psychiatrist for over 30 yrs to stop this insanity.

    If they’d have listened then this car would never have happened. Two wonderful people would still be alive and happy. Daniel would be in school learning to be a doctor and  musician. The two things he said he loved.

    I pray for his sake and the sake of the thousands of other children experiencing waking nightmares and unable to control their minds and actions are saved by the Federal Courts , Supreme Court all realize the laws must be changed to protect children. That they have juvenile courts, mental health treatments. Because locking people up for decades without treatment is beyond cruel. Their minds aren’t finished developing until they’re 25. Before that the understanding of the result of actions is not possible, no matter how many times a lawyer refers to a child as “that man” this or that…..didn’t make a 15 or 17 yrs old an adult it may be comforting to a juror but it’s a lie.   It’s an intentional ruse to mislead to confuse. These issues are what are allowed in adult gains and trial that do nothing to get to the truth. They do as intended they mislead & hide the truth.

    The doctor used by the defense Dr James Merikangas was the only medical doctor that is educated and trained well enough to understand and explain and treat these advanced neurological convoluted mental conditions. The courts doctors admitted they didn’t have a clue. But they quickly moved to cover their butts by claiming other insight as if they were cclairvoyant. Not medical insight but bunches. Should a fifty year sentence or any charge be based on a bunch by those so badly trained, so badly educated with regard to the subject.

    I pray the court sees the new insights that resurrect  thoughtful compassionate law and treatment of our nation’s children. Look to the true cause not rush to judgement.

  5. Tia Will

    Everyone under 25 yrs old that takes these drugs has a negative effect.”

    While I completely agree that the use of SSRIs during adolescence can have serious deleterious effects, it is simply not true that everyone has negative outcomes. My own son was on an SSRI for about six months with significant improvement in a life threatening depression. In my opinion the key is a comprehensive treatment plan and extremely close monitoring, both of which he had.

     

    1. sisterhood

      Hello Tia,

      Your son was fortunate indeed to have a medical Mom who could diligently watch over him and watch over his treatment plan. Many others are less fortunate.

  6. DavisBurns

    It’s my opinion from what I’ve read about the testimony that the doctors at Kaiser were so overwhelmingly incompetent that the fact none of them read the others reports or comments in his record none of them  talked over Daniel’s case his comments feelings. They absolutely failed him.

    I think the Kaiser doctors were up to par.

    My daughter is diagnosed with PDD.NOS which means she is on the autism spectrum, sort of, but not exactly. She is also very intelligent, articulate, shy and dyslexic.  So she is different.  She has a genetic heart condition and an implanted defibrillator.  Twice in the last year her heart has stopped and she has been put in hypothermic therapy and an induced coma.  She is probably also schizoid which isn’t schizophrenia, yet she gets to see a psychiatrist every 3 months for about 40 minutes.  The level of service is so minimal and she has so many other things going on, no one is interested in yet another complication and besides there are no services to treat her.

    With my daughter and so many others who need more services, more attention and a treatment plan, she continues to live an diminished and unhappy life. Doctors treat what is obvious and they follow protocol because 9 times out of ten it works– sort of.  Rarely does the usual response result in a tragedy like Daniel Marsh.  In fact, usually the kid tries to hurt himself and that is the signal for those responsible to pay more attention.

    Because my daughter was in a cardiac unit and had suffered cardia arrest, they put her on a low salt diet because it is protocol.  She has low blood pressure and she needs salt in her diet. They put her on a soft diet because of choking concerns after being intubated. For the same reason, they gave her liquid Tylenol instead of pills.  Then they gave her three very large pills three times a day that were very difficult to swallow. She does not smoke but they repeatedly put nicotine patches on her which we took off.  Believe me, doctors don’t handle unusual complicated cases well and when they do look at records it doesn’t mean they have current or correct  We have faced this problem over and over. My husband who has the same genetic heart condition went to emergency with chest pains. In spite of being informed of his condition, they gave him nitroglycerin which almost killed him. Because that’s what works for most people. Too bad for everyone if you just aren’t like most people.

    They follow protocol because most of the time that’s the best thing to do and that’s what was done with Marsh.

    My daughter was in the Davis school system with two intelligent involved parents who spent loads of money on private therapy and eventually a private school.  I am pretty sure Daniel got as good or better attention, coordination and consultation than most kids.  I am not saying it was good enough, just it was standard operating procedure or better.  Why, I am hoping to get my daughter signed up with Kaiser because I think they might do a better job than her current doctors.

    On another note, Robert Northup wrote an article in the Enterprise today about mental illness and violence. Robert reminds us that a very small percentage of people with jmental illness are violent and it is far more common for people who fail to take their medication to be violent.

    And I agree Chip fought for compassion.  He was the only person who ever  volunteered to spend time with my very difficult son.

  7. Antoinnette

    All good points, but something you are all forgetting here. One of Daniel’s main doctors at Kaiser had not seen him in a one year period. How is that being closely monitored? Nor did she even have any idea who was actually taking the prescriptions she continued to refill, per parents phone in’s.

    Yes, I agree, some may have monitored him, but others did not. It has been my knowledge, and experience that when anyone is on medicine, the levels are monitored via blood draws and they are called in to be checked out by their doctor on a consistent level. If someone can help me understand how Daniel was taken good care of, yet left to himself for a period of one year, while on the strong drugs, then I may be enlightened and is this routine protocol? Or even ethical?

    I have never heard of such?

    This a sad case, as any that involves a young child, however, not placing blame, Daniel did confess and he will have to suffer punishment. Prayerfully, it will be something that will enable him to continue to recover.

    I fail to see what some call, “swift justice,” when the justice came after the fact; the fact that their loved one was drowned, shot, raped, tortured and murdered. Swift justice should come the moment authorities learn of a situation, not after the loss. I do not see these tragedies as accidental, but a conclusion to a criminal pattern, mental health pattern that was inevitable to happen by all the proceeding actions of the defendant/defendants behavior prior to the horrific crimes.

    But, of course, we have no control over another’s mind/actions, especially when it involves the mentally ill.

    Just my thoughts…

     

     

     

  8. Tia Will

    Antoinnette

    A couple of points with regard to your post.  There are classes of drugs that can be monitored by blood levels and others that cannot be monitored this way. SSRIs are a class that are not monitored in the blood, but rather by the demonstrated effect that they are having. Changes in mood associated with SSRIs occur slowly over time. We do not expect to see any improvement at all for at least two weeks in people taking SSRIs. Because of the potential problems involved in their use, I do not prescribe them to adolescents. This is not because I do not believe that they are never useful nor safe for this group, but because I do not have the experience or time to devote the follow up that I think is warranted for this group. When I do prescribe for adults, I do a careful review of the benefits they may see, the timeline over which the changes are likely to occur, and review the potential side effects including thoughts of harming themselves or others that may occur and what to do if this should happen. I cannot imagine, especially if parents are medically unsophisticated, unengaged, distracted by other medical problems what it would be like to try to monitor drug effects in a child or adolescent.

    As a society, we tend to point fingers and place blame whenever there is a bad outcome. This creates two problems for us. The first is that it perpetuates a tendency to over simplify and attempt to place the blame on one or a few individuals. This is problematic because it does nothing to address the systemic problems that are almost always contributory. In the case of health care, we often have the situation of too few providers trying to care for too many patients. There are many ways that this underlying problem could be approached, but none are even considered if we blame the problem on “a few bad doctors” and leave the underlying problems unaddressed.

    The second problem is that we are by nature very sensationalistic. Our minds gravitate towards the tragedies that make it to the headlines. What we do not see are the much less dramatic, but also much more common success stories such as that of my son. What you will not see make the headlines is the story : “Davis teen’s life saved by combination of inpatient psychiatric care, appropriate medication, and weekly outpatient follow up for one year.”

    These are very complicated issues. My experience in medicine is that people are not comfortable with the unknown. American’s tend to want our problems taken care of now, we want definitive cure, not management and improvement, and we typically want it in the form of a pill. Medicine in general, and psychiatry in particular, are areas in which we frequently do not know the best route forward. We have some options that we can try, each of which will have its own pros and cons. Most people get better,  but in challenging cases, we are frequently left with using our limited knowledge and limited therapeutic options to the best of our abilities with the knowledge that the outcomes will not all be as good as my son’s but will rarely be as tragic as the Marsh case.

     

     

    1. sisterhood

      Tia, I feel compelled to share this anecdote with you. One of my relatives is going through a difficult divorce after being married for over twenty years. Naturally, she has her high and low moments, while sorting it all out. Last summer we took a vacation on the beach with her son and his new girlfriend, who is trying to get enough hours to get her LCSW. After speaking with the divorcee for a few minutes, she told her that modern medicine is doing wonders for people like her, with mood swings, and she advised the woman to ask her doctor to prescribe prozac or another type rx. I was flabbergasted. The young twenty something woman had no life experiences or training to come up with such a serious bit of advice. (As far as I know, from quizzing her afterwards.) She reminded me of school teachers who used to throw around the words “ritalin” and “adderill”.  If an older M.D. such as yourself had given that advice to my relative, I would have respected your opinion. But that young woman had no business making that remark to my relative. I think she needs talk therapy and friendship. Not drugs.

      Of course Daniel Marsh’s situation was different. But the point is, even today, schools are training therapists to look for the easy, cheaper solutions.

        1. Tia Will

          sisterhood

          I agree that all the behavior approaches that you have listed are essential to a physically and mentally healthy state of being. However, sometimes they are simply not enough. I have seem many individuals who  have come to me only after all of these modalities have failed them. Sometimes in my field the answer may be alleviating hot flashes which can be related to such profound sleep deprivation that the woman is extremely debilitated in her ability to function during the day. This is no joke and can be very dangerous as when women fall asleep behind the wheel or cannot perform their usual job functions due to sleep deprivation. In these cases hormone replacement therapy or SSRIs may be career and/or life saving.

          With regard to your anecdote, I am concerned about an SSRI being her only bit of advise. For that matter I do not believe that any advice other than to discuss the situation with a doctor is appropriate in casual conversation. However, if it had been presented only as a subject to discuss with her doctor and not presented as something that should be demanded, I do not see much harm. I would recommend that women discuss all their options, behavioral and medical with their doctor. Depression and difficulties related to aging and /or changing life circumstances are highly individual and there is no one size fits all.

           

           

        2. Antoinnette

          Yes, sisterhood, I feel the same.  But I will add, “Prayer, ” it helps too.  Never been a fan of any anti-depressants unless absolutely necessary. Just my belief, not asking for anyone to agree.

          Tia, I don’t believe you read the part of my comment that said, “not placing blame.” I totally understand your point and respect your knowledge as a doctor. My comments are geared toward the actual testimony. What was stated as factual during trial out of the mouth of one of the doctors. Again, a one year period, Daniel was left to his own, who answers for that? Daniel?

          Does it have anything to do with what he did? We don’t know…there were several factors that caused his behavior. (per testimony)

          I too, got lucky with my son, as I have told before of his experiences with seizure medicine and other traumas. But, we were on top of things, Daniel did not get that, also a fact during trial as far as we know? (information was limited)

          Too, I don’t believe in “generalizations,” we are all individually different. I also do not believe that all of us, “sensationalize,” things. I love hearing a good ending. Unfortunately, these trials rarely have one…lol.

          It is nice to hear about people overcoming illness or hardship, it’s always an encouragement for me.

          I don’t know much about Kaiser doctors but I am sure there are some good ones.

          My family and I have been under UCD Physicians. I felt it was necessary after my son had his craniotomy. Dr Bogen, his surgeon, saved his life and their Nuero department has always been fantastic.

          I am very grateful. But again, it takes both parents and doctors to stay on top of the game.

          Tia, no doubt in my mind you are a very concerned and attentive doctor. 🙂

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