A Columbia County Circuit Court jury on Wednesday acquitted a Wisconsin Dells man of two counts of sexual assault after a three-day trial.
The jurors deliberated three hours before finding Branden Marsh, 44, not guilty of second-degree sexual assault of an intoxicated victim and not guilty of third-degree sexual assault.
Marsh admitted to having an intimate encounter with his 18-year-old stepdaughter early in the morning of March 3, 2015, but the argument since the young woman reported the incident to Wisconsin Dells police the next day has been the context of the evidence and the consent given.
“I think that Branden’s statement to the police was authentic and true,” said defense attorney Stephen Eisenberg. “I think there were competing statements that could be taken from either side that could be taken as believable. What I’m hoping that the jury did was say ‘we don’t know,’ and when the jury doesn’t know they should put the state to its burden of proof and find you not guilty.”
Over the course of two days of testimony two competing narratives emerged through witnesses called by Assistant District Attorney Crystal Long.
Those witnesses testified about the state of distress the woman was in following the encounter.
Eisenberg called the woman’s two sisters, mother, and uncle to the stand and they testified that the woman has been known as a manipulative, serial liar from the earliest age.
Although Marsh chose not to testify, the jury heard from him in a recording of an interview by police following the incident, in which Long pointed to his clearly admitting to what had happened and knowing what he had done was wrong — as she explained in her closing argument, he had given a hard “no” to several critical questions, not because he knew the detailed legal ramifications of them, but could infer from the officers that he was in trouble and there were right and wrong answers to the questions he was being asked.
“It’s humiliating if you cheat on your spouse and people find out — and that’s when you’re both 40,” Eisenberg said to the jury in his closing arguments. “The evidence shows that he was reasonable on that tape.”
After the woman was taken by friends to Divine Savior Healthcare for a sexual assault examination, and she reported the incident to police, text messages were sent to Marsh from a friend of the woman and a Wisconsin Dells police officer.
One asked Marsh why he did what he did last night, to which Marsh replied that he had strong feelings for her and thought she had enjoyed it and that if she didn’t it wouldn’t happen again. This was followed by suggestions that they meet to discuss it, whereupon Marsh, under the impression he was meeting her, was arrested by police.
“Many people have thought that sexual assault is a crime of power, not so much a crime of sex,” Eisenberg said. “And this doesn’t have any of that.”
Among the family sitting behind Marsh and friends sitting with the alleged victim behind Long, there was also one spectator — the 13th juror, present throughout as an alternate in the event of an emergency, but excused before deliberation.
“Every case is serious, but this has far more consequences than five extra acres or a vehicle or something, so this is an experience that I won’t shortly forget,” said Jason Williamson, 42, of Rio. “Each divided side has an agenda. You really can’t get inside someone’s mind, so you don’t know the true motive behind what is being said. So you have to weigh it with prior situations and there are so many variables in this situation.”
Eisenberg made clear at several points during his opening and closing arguments that he was not asking the jury to find Marsh innocent, but that the matter was specific to the particular accusations with which he was charged. That separation of the moral issues from the legal issues and all the variables of a divided family would be a major hurdle for the juror, Williamson surmised, saying that over the prior two days, he had gone home mentally exhausted by the information he had been given.
When Judge Alan White announced the findings of the jury, there was a deep tearful sigh from among Marsh’s family, as Eisenberg hugged Marsh sitting next to him.
“I do think a lot of extraneous things, because of the family relationship, flowed through that were out before they could be stopped, so it was one of the strangest cases that I’ve ever had, where there are family members totally estranged from other family members, that doesn’t involve money,” said Eisenberg on his way out of the courthouse.
“I’m very happy for Branden, for his mother, for his wife, for his other two stepdaughters. And I will say this, the whole thing is tragic. (She) is a 21-year-old girl and she doesn’t have to go through this, and that isn’t sour grapes, I’m sorry that her life is like this. No child should have to go through this.”