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Accused child killer has long jail wait until trial

Sep 27, 2012 - By Martin Reed, Staff Writer

When the latest trial start date arrives for Jonathan David Marshall in his first-degree murder case alleging he caused a baby's death, the Riverton man will have been in jail for 635 consecutive days.

From his arrest Aug. 4, 2011, to his newest trial date scheduled to start April 29, 2013, his pretrial incarceration will total one year, eight months and 26 days.

"I have every hope that when all the evidence is heard that he will be found not guilty, but regardless, sitting in jail for two years in a pretrial capacity is a hardship on anyone," said defense attorney Thomas Fleener of Laramie.

"It is unfortunate he is sitting in jail in a pretrial capacity as he is, and I wish there was something I could do to change that," Fleener said. "But the most important aspect of his case right now is making sure our witnesses are lined up."

Baby's death

Marshall is awaiting trial on charges related to the July 28, 2011, death of 7-month-old Eli C'Bearing of the Wind River Indian Reservation.

Marshall, who was 22 at the time, had been supervising the infant at the Riverton home of Patricia Davis, the defendant's mother who was also acting as the baby's foster parent.

At about 10:45 p.m. July 26, 2011, medical personnel responded to a report that the baby was not breathing at the home on the 800 block of North 12th Street East, according to charging documents.

Subsequent investigation at Denver Children's Hospital revealed the infant had a skull fracture that extended from the temple area to the rear of the head, a fractured rib, bruising and other injuries, according to court documents.

No death penalty

Marshall has pleaded not guilty in the case. He remains in jail on a $250,000 bond.

Although Marshall faces first-degree murder, the Fremont County Attorney's Office is not seeking the death penalty in the case.

If convicted of first-degree murder, Marshall would be sentenced to life in prison. He also faces felony charges of second-degree murder and child abuse and a single misdemeanor charge of use of marijuana.

Marshall's case has encountered multiple delays because of a switch in defense attorneys and repeated requests for new trial dates.

Court documents showed that Marshall's previously postponed trial dates this year had been set for Jan. 17, March 19 and Sept. 24 in Lander. Fleener said he requested the latest continuance.

"It's for expert witnesses' schedules, and unfortunately when you have expert witnesses, courts and trials are often relying on their schedules rather than court schedules," he said.

"The truth is that I appreciate the court and county attorneys' indulgence on vetting this case in a way that Mr. Marshall can have his necessary witnesses," Fleener said.

Counting on experts

Expert witnesses can provide crucial testimony at trial about what happened that caused the infant's death, which the prosecution could not fully explain earlier this year.

During a court hearing in March when Marshall's previous defense attorney asked for more information about the allegations, deputy county attorney Patrick LeBrun said the defendant was the only one around when the infant suffered a fatal blunt-force trauma head injury.

"I can't tell the court ... what that child's head hit," but autopsy reports show the baby died of blunt-force trauma, LeBrun said at the March 1 hearing in Lander's 9th District Court. "Nobody else was in that room with him."

District Judge Norman E. Young, who is presiding over the case, ordered the new trial date for next year.

"The issue and difficulty with the current trial date of September 24, 2012 is that an expert medical witness deemed critical to the presentation of the defendant's defense is simply not available to testify in person in Lander, Wyoming until March of 2013," Young wrote in his order filed Sept. 4.

Young suggested the possibility of using real-time video technology for the trial.

"Defense counsel advised his preference was to have the expert witness in question, and to have her live testimony at the defendant's trial," he stated in his order.

In light of the significant delay in trial, the judge elicited comment from Marshall at a hearing Aug. 10 in Lander.

"The Court questioned the defendant who indicated he understood he had previously waived his right to a speedy trial but that he wanted this particular expert and agreed with counsel that her live testimony was important," Young wrote.

"The defendant was advised this decision would obviously result in a significant delay of his trial. It also meant he would remain incarcerated for at least an additional six months. The defendant indicated he understood," according to the order.

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