SAN DIEGO --- Whether a Rancho Penasquitos man freed from prison after a judge set aside his murder conviction actually is innocent or is responsible for the 1983 death of his then-girlfriend's nearly 3-year-old son is an issue that can be argued to a jury at a civil trial, a federal judge has ruled.

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U.S. District Court Judge William Q. Hayes denied last week a request from Kenneth Morgan Marsh's attorneys for a court order declaring that Marsh already had proven his innocence and that it could not be disputed at the trial of his $50 million lawsuit against the county, Rady Children's Hospital and others.

Attorneys for the county and children's hospital had argued that they should be allowed to argue to the jury that Philip Buell's death was not an accident as part of their defense against the allegations in Marsh's lawsuit, including malicious prosecution and conspiracy to wrongfully have him prosecuted.

Attorneys for the county and the hospital called the ruling "significant" and said they plan to present evidence to the jury that Philip's death was intentional.

Marsh's attorney, Donnie Cox, said he is confident the civil trial will be the third time Marsh has presented evidence that proves he is innocent and that having to do it again is "a waste of our time, a waste of the court's time and a waste of the jury's time."

No trial date has been scheduled. A pretrial conference is scheduled for Dec. 3.

Marsh was convicted in November 1983 of second-degree murder and was sentenced to 15 years to life in state prison for the April 27, 1983, death of Philip, the son of Marsh's girlfriend at the time, Brenda Buell Warter.

Warter said she believed Marsh was innocent and married him after his release from prison in 2004.

After multiple failed appeals, Marsh's attorneys raised issues that prompted the San Diego County district attorney's office to hire a Florida pathologist to review the case in 2004. Prosecutors decided the pathologist's review raised a reasonable doubt about whether Marsh killed the boy.

A Superior Court judge on Aug. 10, 2004, set aside Marsh's conviction, and he was released from prison later that night after having served 21 years behind bars. The district attorney's office later decided not to retry Marsh and asked a judge to dismiss the case against him.

State law allows freed prison inmates to submit claims for up to $100 for each day they spent in prison for a crime that did not occur or that they did not commit. Marsh spent 7,569 days in prison.

Chief Deputy County Counsel Deborah McCarthy, who represents the county, said the question of Marsh's innocence will be one of the key issues in the trial.

"We fully intend to put on evidence that Philip was murdered," McCarthy said.

Cox, who represents Marsh, said the attorney general's office, the government claims board, the state Legislature and the governor have decided that Marsh is innocent. State lawmakers had to pass legislation that required the governor's signature to authorize the state to pay Marsh the $756,900 for the time he spent in custody.

"We are disappointed that we have to continue to refute these totally and completely discredited theories from the defendants that Ken is responsible for Philip's death," Cox said. "This will be the third time that Ken has shown that the evidence available for everyone to see indicates that he's innocent."

In January, the state's Victim Compensation and Government Claims Board adopted the report of its hearing officer, who wrote that Marsh had proved by a preponderance of the evidence that he was not guilty of murder and should be paid $756,900. The hearing officer also concluded that Philip had an undiagnosed blood disorder and that a doctor administered the drug Mannitol to him, both of which contributed to his death.

Marsh alleges in his lawsuit that doctors for the county and Children's Hospital and a coroner's investigator conspired to have him prosecuted for murder to "cover up" alleged medical malpractice that contributed to Philip's death. Attorneys for the county, the investigator, the doctors and Children's Hospital adamantly deny those allegations.

In an 11-page written decision filed Jan. 18, Hayes wrote the government claims board's finding that Marsh had proved his innocence at that hearing does not preclude attorneys for the defendants in Marsh's lawsuit from arguing that he was responsible for Philip's death.

Hayes wrote that the claims board hearing was not adversarial, that the defendants in Marsh's lawsuit did not have the opportunity to argue their position in that hearing, and that the state attorney general's office did not represent their interests in that hearing.

- Contact staff writer Scott Marshall at (760) 631-6623 or smarshall@nctimes.com.

Previous articles:

Freed RP man's innocence may be disputed at trial

Judge rules freed inmate can proceed with lawsuit

Attorney: Governor signs bill to pay freed Rancho Penasquitos man $756,900

Assembly OK's paying freed RP man

Freed Rancho Penasquitos man clears another hurdle to getting $756,000 claim

State board OKs $756K for freed Rancho Penasquitos man

Freed Rancho Penasquitos man alleges doctor contributed to toddler's death

State prosecutors say state should pay freed Rancho Penasquitos man

County appears ready to fight $50 million claim from man freed after 21 years in prison

DA drops case against freed inmate

Man freed from prison faces possible retrial

Family, friends celebrate ex-inmate's release from prison