This weekend the Davis Enterprise put out an article on the Marsh trial which highlighted the difficult and challenging nature of such a case. As Davis Police Lt. Glenn Glasgow told the paper, it was a double homicide “with no suspect whatsoever.”
As the article describes it, the break came out of nowhere – a phone call from a friend of Daniel Marsh with details of the crime that had not been publicly released. Then a second call.
That led to a plan to bring Daniel Marsh to the police station where a “a five-hour interview led by FBI Special Agent Chris Campion” led to a confession. Deputy DA Amanda Zambor told the paper, “Really, there was nothing to associate him with this crime — not a hair, not a fingerprint.”
The comment by Ms. Zambor dovetails with what former Deputy DA Michael Cabral, the lead prosecutor on the case, has said – without the confession, the police and prosecutors had little to go on.
The interesting question is, without a confession, would they have had enough to convict Mr. Marsh? That question goes from the theoretical to a very real scenario when we analyze the confession itself.
Back in February of 2014, Judge David Reed denied a defense motion to suppress 16-year-old Daniel Marsh’s confession to Davis Police on June 17, 2013. 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.
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.
Mr. 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.
The judge then evaluated whether the repeated requests to go home were the invocation of the right to remain silent. He evaluated the circumstances in which Marsh’s requests were at first ignored – then eventually Marsh 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 Marsh’s 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 argued 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 or have his parents present, but was denied both 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.
Research finds, “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.
We have always believed that ultimately this confession would go to the appellate courts during an appeal. The question then becomes how likely is it that an appellate court would throw out the confession and, if they do, would the prosecutors still have enough to convict Mr. Marsh?
Those are key questions, but it is clear that throwing out the confession would make it far more difficult to convict Mr. Marsh of the murders.
—David M. Greenwald reporting