ER - Motion filed to find acquitted child endangerment defendant factually innocent

Motion filed to find acquitted child endangerment defendant factually innocent
by Kara Machado, 6/12/2007

Humboldt County Deputy Public Defender Angela Fitzsimons was in court Tuesday on behalf of Sean Marsh.

Fitzsimons has filed a motion requesting a finding of factual innocence.

If granted, the motion would find Marsh “factually innocent” of the charges he was acquitted of in February following a jury trial.

In addition, if a judge found Marsh factually innocent, there could be a finding of good cause for the sealing and ultimate destruction of the records in his case.

On Tuesday, Fitzsimons’ motion was brought before Humboldt County Superior Court Judge Timothy Cissna.

Cissna made a tentative decision to deny the motion for such reasons as: Although the Humboldt County District Attorney’s Office did not prove to a jury that Marsh was guilty, the motion must show that he could determine factually, “100 percent,” that Marsh was innocent.

On Feb. 6, after a little less than half an hour, a jury found Marsh not guilty of misdemeanor child endangerment likely to produce great bodily harm or death and the resisting/obstructing/delaying of Ferndale Police Chief Lonnie Lawson in the performance of his duties.

The case against Marsh stemmed from a May 31, 2006, incident that occurred near the intersection of Main and Brown streets in Ferndale.

Cissna gave a bit of an overview of the case Tuesday: that Lawson testified he saw a young child — Marsh’s then 2-year-old son — and Marsh and that Marsh was “allowing his young child to step into the street at a relatively busy intersection.”

“(And) that could be found, by some people, to be child endangerment, child neglect,” Cissna said.

During Marsh’s trial, Lawson maintained Marsh was negligent in allegedly allowing his toddler to go 18 inches into the intersection at Main and Brown streets on May 31, 2006, and alleged that Marsh delayed his investigation into the incident when Marsh allegedly failed to comply with Lawson’s orders.

Marsh maintained his child only got to the curb of the intersection, that he did stop for Lawson and that he was open to Lawson’s questions until Lawson allegedly became “confrontational” with him.

Cissna allowed Fitzsimons more time to work on her motion and to have it filed no later than July 10.

The Humboldt County District Attorney’s Office — represented by Deputy DA Randy Mailman — must file its response by July 24, Cissna ordered.

Cissna scheduled a ruling on the motion for Aug. 2.

Fitzsimons declined to comment on the matter.

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