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Prosecutor: Facts didn't support conviction in child's death

Aug 13, 2013 - By Eric Blom, Staff Writer

A lack of facts in the 2011 death of an infant boy led to a sentence of 10 years probation and a suspended 10 to 18 years in prison for the man convicted in the incident.

"I believe that John Marshall did not kill Eli C'Bearing on purpose," Fremont County deputy prosecutor Patrick LeBrun said at hearing Thursday in Wyoming's 9th Judicial District Court. "If I believed otherwise, we would not be here talking about involuntary manslaughter."

Jonathan David Marshall was charged with murder and child abuse in the 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 baby at the Riverton home of Patricia Davis, the defendant's mother who was acting as the baby's foster parent.

In April, Marshall pleaded no contest to a count of manslaughter following a plea agreement with prosecutors that said he would serve 10 to 18 years in prison suspended in favor of 10 years of probation.

Wyoming's 9th Judicial District Court Judge Norman E. Young approved the sentence stipulated in the plea agreement at the hearing Thursday and ordered Marshall to pay $1,400 in restitution.

"I've heard a remarkable degree of candor from counsel in the courtroom," Young said. "From the court's perspective (the sentence) is appropriate."

If the defendant violates the conditions of his probation during the 10-year term, he will serve the full prison sentence, minus the 737 days already served.

Details of the death were unclear, and a lack of clarity gave prosecutors trouble in the case.

LeBrun said the case was one of the most difficult cases he had ever worked in terms of facts, indicating the evidence against Marshall was not strong.

At about 10:45 p.m. July 26, 2011, medical personnel received a report that C'Bearing was not breathing at a residence in 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.

The prosecution could not fully explain the charges at earlier hearings. During a court hearing in March 2012 when Marshall's previous defense attorney asked for more information about the allegations, 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 hearing March 1, 2012, in Lander's 9th District Court. "Nobody else was in that room with him."

The case also was difficult for him emotionally, LeBrun said Thursday.

"No case has cross crossed my desk that has caused me more personal heartache," he said.

Still, LeBrun stood by the charges.

"If (Marshall) steps out of line he will be punished harshly," the deputy prosecutor said, referring to the suspended 10 to 18 years in prison.

The defendant's lawyer said he thought he could have won a trial in the case, but he did not want to take the risk.

"I believe in my heart Jonathan Marshall had nothing to do with that baby's death," defense attorney Tom Fleener said.

Two friends of Marshall also spoke. They both recounted how the young man had cared for children in their family.

"He's always been kind," Lisa Konija said. "He was always so wonderful with my children."

Fleener thought the case would go to trial and had an expert witness lined up who would testify the skull fracture that killed the child could have happened months before his death, the defense attorney said.

"I think my odds were 85 percent," he said, referring to the chance of a "not guilty" verdict.

By pleading no contest, Marshall did not have to provide a factual basis for his guilty conviction, and so did not provide his side of the story. Instead, the court accepted the affidavit the state provided as true.

If the defense won a trial, he would have sued, Fleener said, potentially costing Fremont County. And if he had lost, Marshall would have faced 20 years to life in prison.

"Which is why we took a no-contest plea, why the county drove a hard bargain," Fleener said.

He credited prosecutors with being unafraid of public opinion and outside pressure and "taking a fresh look" at the case, which led to the plea agreement.

Fleener asked Young to allow Marshall to report for probation in any county in Wyoming and to permit the defendant's probation to be transferred in the future to Colorado. The attorney said Marshall's family all had relocated to that state.

Young approved the requests.