Markese Clark

Markese Clark has now been imprisoned for 8 years for a crime he did not commit.

Ericka and Donald had three children, two daughters and King. In the summer of 2012, the girls were eight (Joy) and five-years-old. King, who was born on December 29, 2010, was almost two years old. With respect to King, Ericka had a normal pregnancy and delivery, and his checkups, the last of which was in July 2012, were normal.

However, in July 2012, King fell down 15 or 16 concrete or tiled stairs, resulting in a head injury. Emergency room doctors examined and released him that same day. Although Ericka remembered the one fall, Joy remembered King falling down stairs a second time, which also prompted a trip to the emergency room. Ericka, however, said that while King got other bumps on his forehead from falling or running into something, this all happened before July 2012.

Around August 2012, Ericka and Donald separated. Soon thereafter, in September 2012, Ericka resumed a relationship with Clark, whom she had dated in the past. Clark and his two children—three and one-year old girls—moved into a two-bedroom apartment in Long Beach with Ericka and her three children. Ericka worked as a personal banker for Wells Fargo, while Clark cared for the children and worked on his music at home. Caring for five children at times frustrated and overwhelmed Clark. Once, a neighbor heard King “crying, crying, crying,” and Clark yelling. As to discipline, Ericka and Clark agreed he would not spank Ericka’s children to avoid problems with Donald. Ericka never saw Clark hit her children, and he never told her he had done so. Even so, Clark complained that Ericka and Donald babied King, who Clark called a “crybaby.” King never warmed to Clark. And, after Donald left, King lost his “spunk” and was sad. Ericka attributed this to King missing his father, to whom he was close, and she considered taking King to a psychologist.

In mid-October 2012, Ericka and Clark moved to a four-bedroom house in Lancaster, where Ericka continued to work for Wells Fargo and Clark continued to stay at home caring for the children, although King’s sisters were in school during the day. On January 2, 2013, Ericka worked all day. When Ericka got home that night at 8:45 p.m., King was already asleep. Thinking it was too early for King to go to bed, Ericka woke him. When she put him down, he wasn't able to hold his balance. Although King ate slowly, at “not his normal pace,” he otherwise seemed fine. The next morning, January 3, 2013, Ericka went to work. The children remained at home with Clark. At 11:00 a.m., Clark called Ericka and said that King had fallen and was being rushed to the hospital. When a responding paramedic arrived, King was not breathing, and his heart was not beating. The paramedics took King to Antelope Valley Hospital, but he was later transported

to Kaiser. Doctors drilled burr holes into his head to drain fluid that had accumulated on his

brain. When King's neurologic function didn't improve, he was removed from life support on

January 17. Two days later, he died.

At the time of his death, King weighed 25 pounds and was 39 inches tall. Soon after King died, eight-year-old Joy gave a recorded statement on January 21, 2013 about what happened to her baby brother. She said that Clark had been throwing King “in the air and pulling him down and they fell back, and then he picked him up and went to go put him in the shower.” “[H]e put him down,” “[h]e fall back, and he was crying, he just fell back, fell out.” A few minutes later, Clark said King hit his head in the bathtub. Joy also reported that Clark would “pop[ ] King on the behind and send King upstairs when he got mad at King. Also, Clark “makes King hit his head.” Clark would take King into a bedroom and Joy could hear “head bumps” every time Clark “whoop[ed]” King, who cried.

At trial, Joy, who was now 11 years old, testified she never saw Clark spank King, but Clark did “pop him in the head sometimes. He popped him in the behind and his head.” On the day King went to the hospital, Clark was playing with the kids in the carpeted living room. When Clark threw King into the air, King vomited onto Clark’s shirt. Clark took King upstairs to bathe him. Clark came back downstairs, crying and saying, “ ‘King’s not breathing.’” Two experts testified for the prosecution: Dr. Jason Tovar and Dr. Carol Berkowitz. Deputy Medical Examiner Jason Tovar autopsied King. Dr. Tovar testified that King had no external injuries, including bruising. He also reviewed King's medical records, the coroner’s investigator report, a post autopsy ophthalmologist report, and a post autopsy neuropathology report.

Dr. Tovar’s internal examination of King’s head revealed contusions on the scalp’s undersurface in the frontal regions toward the forehead and across the top of the head and hemorrhage on the back of the head on the bone. More specifically, King had hemorrhages in the subcutaneous, subgaleal, and subdural regions of his brain. The subcutaneous hemorrhage was diffuse (spread out) and located to the left side of his head just above the ear and into the back, indicating unnatural trauma. King also had diffuse subgaleal hemorrhage to the back of his head, on the left side of his scalp over a fairly large area. Acceleration and deceleration can cause bleeding into the retinas. Dr. Tovar also sent King’s brain to a neuropathologist, who found no indication of “natural disease process.” Ultimately, Dr. Tovar determined that non-accidental blunt head trauma caused King's death and that the mode of death was homicide.

On cross-examination, Dr. Tovar agreed that veins on the brain that had once bled and then healed could “[p]otentially” be more susceptible to reinjury, depending on “when we are talking about, what time interval, and the amount of the injury.” If a child fell down stairs, causing the veins on his brain to bleed, that location could be more susceptible to reinjury. Dr. Tovar had only become aware of King’s prior falls and emergency room visit after he had formed his opinion about cause of death. Dr. Tovar did not have King’s medical history prior to January 3, 2013. However, he suggested that his microscopic review of King’s dura showed no prior injury. Dr. Tovar then opined that none of the hemorrhages could have resulted from an injury occurring five months before January 3, 2013. Finally, he suggested that King’s fall down cement steps could have caused or contributed to the subdural hemorrhage.

Dr. Carol Berkowitz is board-certified in pediatric emergency medicine and in child abuse pediatrics. Dr. Berkowitz noted that King’s condition when paramedics arrived—fixed and dilated pupils, lack of a pulse, and cold to the touch—suggested that “this event had gone on for a bit of time.” She explained that an initial CT scan of King’s head showed no abnormalities such as subdural bleeding. However, when doctors were able to get King’s heart beating, another CT scan showed the hemorrhages. Also, when King was admitted, he had petechiae—tiny hemorrhages present in the back of the eye. Dr. Berkowitz diagnosed shaken baby syndrome. Shaken baby syndrome occurs when the brain is subjected to “whiplash, like acceleration, deceleration,” and it “swooshes back and forth within the skull.” Retinal hemorrhages are also associated with shaken baby syndrome.

On cross-examination, Dr. Berkowitz admitted she had only recently learned of King’s earlier fall down stairs. However, it was her understanding that the emergency department did not order imaging studies, which indicated there was no evidence of intracranial injury. Clark testified at trial and denied hitting or shaking King on January 3, 2013. On January 3, 2013, Clark was playing with the kids in the living room. He tossed King into the air three times, catching him as he came down. The last time, King fell back when Clark put him down and landed straight on his back and on his head. Clark picked him up, and King threw up, dirtying himself and Clark’s shirt. Clark took King to the bathroom, where he stripped him, put him into the tub, and washed him with cold water. Clark did not see King hit his head in the tub. After washing King, Clark took him upstairs and dressed him. That was when Clark noticed King was unresponsive. He ran downstairs with King and called 911, telling the operator that King “had hit his head.” He did not know about King's prior fall down the stairs. A jury found Clark guilty of assault on a child causing death, which is commonly known as child assault homicide. The jury found Clark not guilty of murder but guilty of the lesser offense of involuntary manslaughter. On October 21, 2016, the trial court sentenced Clark to 25 years to life.