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Judge says murder case in child death can proceed

Mar 8, 2012 - By Martin Reed, Staff Writer

A judge ruled that prosecutors do not need to provide more information to the defense team concerning allegations that a Riverton man killed a baby in August.

Lander's 9th District Judge Norman E. Young said the Fremont County Attorney's Office has met its burden in revealing the allegations' details against Jonathan David Marshall, 22.

Defense attorney Kate McKay requested the additional information, called a bill of particulars, because "we want the general allegations to be more specific," she said during a hearing in District Court.

"I feel like we're defending on a lot of rather nebulous fronts," McKay said March 1.

Deputy county attorney Patrick LeBrun opposed the motion, saying Marshall was the only one at the time caring for the infant 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. "Nobody else was in that room with him."

Marshall faces a charge of first-degree murder in the July 28 death of 7-month-old Eli C'Bearing, of the Wind River Indian Reservation. He had been supervising the infant at the Riverton home of Patricia Davis, Marshall's mother, who was also acting as the baby's foster parent.

At about 10:45 p.m. on July 26, medical personnel responded to a report that a 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.

Marshall's jury trial is set for March 19 in Lander, but the date will be postponed. He has pleaded not guilty in the case. He remains in jail on a $250,000 bond.

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.

LeBrun said the state is dismissing other charges of felony child abuse and misdemeanor child endangering.

During the motion hearing that was attended by family members of Marshall and the infant, McKay argued to separate the marijuana use charge from the rest of the case.

"I think that is just an obvious showing of prejudice," McKay said. "This is an illegal act that otherwise has no relevance to murder and child abuse charges."

She questioned what effect Marshall smoking marijuana had on killing the baby.

Deputy county attorney Kathy Kavanagh said the marijuana charge is part of the prosecution's case against Marshall "because it was essentially one single, same transaction."

"The defendant through his own admissions indicated while he was the sole caretaker of that child he got high," Kavanagh said.

Statements made by Marshall included the baby fell and hit his forehead, she said. Also, he told authorities the infant may have suffered the skull fracture by hitting his head on a door as he carried the baby out of a room after the infant had stopped breathing, she said.

"The evidence that the defendant ingested marijuana, got high, is not only course of conduct, but it's evidence the defendant doing that may have affected the defendant's ability to make decisions. It may have impaired his judgment," she said.

"It's relevant information that is contemporaneous to what occurred to this victim that the jury should hear," she said. "We cannot argue he is a bad man because he got high."

Young said he would take the matter under advisement and issue a decision later.

"I'm having trouble seeing ... why evidence of use of marijuana might not be very relevant," he said.

Kavanagh compared the issue to alcohol use.

"If the defendant had admitted he had been drinking all day and was drunk, that would be highly relevant in this case," she said.

"I've thought of it myself," Young said about the parallel.

The judge suggested to McKay that she could allow her client to plead guilty to the marijuana charge before trial.

McKay's request to prohibit use of the term "shaken-baby syndrome" in describing what happened to the child was successful.

She said the "actual cause of death in this case was blunt force trauma," not shaken baby syndrome, which she called a controversial term in the medical community.

"I think using that term prejudices Mr. Marshall," McKay said.

Kavanagh said the prosecution would not use that term, but the word "shaken" may be used during the trial.

"I want to make it clear that in one if not both autopsy reports ... there is clear evidence of whiplash," she said. "And there is no question in my mind ... that the doctor may use the term shaken. I think based on the autopsy results it is inevitable."

McKay asked if her client, who has been in jail since August, could speak to his family members, which includes his mother and sister. Kavanagh opposed the request.

"They are material witnesses on a baby murder case," Kavanagh said, adding that Marshall's mother "was one of the last people to see this child alive."

Young prohibited Marshall from talking to his family.

"This is a first-degree felony murder case, and his mother and his sister, from every indication I have, are material witnesses," he said.

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