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When friends tossed Chattanooga, Tenn., attorney Robert Crawford Jr.’s cremated remains into the wind on his favorite golf course, the ashes sparkled as the sunlight caught them. Crawford’s sister Teri D. Crawford said there was something angelic about her brother’s ashes glittering in the wind. But the hint of grace the attorney’s friends and family perceived proved to be something else. A year after Robert Crawford’s February 2001 funeral, Walker County officials laid bare a landscape of decaying corpses at the dilapidated Tri-State Crematory near Noble, Ga. In the days that followed, 339 corpses that should have been cremated by Tri-State were salvaged from the crematory grounds. And Teri Crawford discovered that a portion of her brother’s remains preserved in a small urn by his widow was adulterated with bits of metal, rock and silica. The sparkles seen by Crawford’s friends were not his ashes, his sister said in a deposition unsealed last month. Teri Crawford and an estimated 1,500 other survivors are part of a federal class action suit that began this week in Rome, Ga. Opening statements are scheduled to begin this morning before U.S. District Judge Harold L. Murphy. By the time attorneys began selecting a jury this week, the majority of the 56 funeral home companies named in the suit had settled. Court records show that Murphy has approved a total of $15.7 million in settlements with seven funeral homes. By Wednesday, 44 funeral homes had entered into settlement agreements, many of them less than 72 hours before jurors began arriving at the federal courthouse. A series of pretrial rulings as well as the gruesome facts in the case have weighed in favor of settlements by the defendant funeral homes. The most significant ruling was Murphy’s, allowing the case to proceed as a class action that could include as many as 1,500 plaintiffs. The funeral homes have argued in court filings that they, too, are victims of Tri-State Crematory and the family who owned and operated it for 20 years. The funeral homes maintain that they were unaware of and shouldn’t be held responsible for the crematory’s failures. J. Anderson Davis of Rome’s Brinson, Askew, Berry, Seigler, Richardson & Davis, the funeral homes’ lead defense counsel, said Wednesday that the funeral homes assert they had no way of foreseeing that the bodies sent to Tri-State for cremation would be mishandled. More important, he said, the funeral homes should be shielded from liability because they should not be held responsible for the crematory’s criminal activity. Jurors will have to consider whether the funeral homes’ contracts with the families of the deceased obligated them to ensure that the bodies were cremated properly and that the ashes of the dead were returned to their next of kin. The funeral homes and their insurers are the deep-pocket defendants in the case. Tommy Ray Marsh, who operated the crematory until he had a stroke in 1996, died last year. His son T. Ray Brent Marsh, who began operating the crematory when his father was incapacitated, is the most visible defendant, but a judge found him indigent in a related criminal case. The younger Marsh has said nothing so far that would unlock the mystery of why Tri-State for five years failed to cremate hundreds of bodies, and he is expected to say nothing at trial in this case. FREE ON BOND In Walker, Marsh faces 787 criminal charges associated with the Tri-State corpses — 179 counts of abusing a dead body, 122 counts of burial service fraud for failing to perform cremations, 437 counts of theft by taking, two counts of attempted theft by taking and 47 counts of making a false statement in connection with signing death certificates that stated cremations had been performed. Marsh is free on $159,200 bond and is confined to his mother’s home. Cobb County Superior Court Judge James G. Bodiford will preside over his criminal trial, which is scheduled to begin this fall. Bodiford was brought in after Marsh’s criminal defense attorney demanded that Walker’s judges be recused because of the dramatic pretrial publicity. A jury for the criminal case will be selected from another county and sequestered in Chattanooga. Marsh’s criminal defense lawyer, former state Rep. McCracken K. Poston Jr. of Ringgold, Ga., has declined to say exactly what happened at Tri-State and why. But he has hinted at his client’s defense. “Brent Marsh did nothing wrong with these bodies other than not cremate them,” Poston said. “Why did it go wrong? It’s not entirely Brent Marsh’s fault.” The deposition testimony of Walker Sheriff Stephen B. Wilson, who talked to Marsh as law enforcement authorities descended on the crematory in February 2002, offers yet another clue. “I may have said, ‘Brent, what’s going on here?’” Wilson recalled. “And I think his response to it was that his daddy had done it. He was trying to throw it off on his dad of things that his dad had done, and [Marsh's sister] LaShea was standing nearby and she pretty well nodded in agreement that it was some of the dark secrets that his dad had done over the years.” If Marsh plans to shift blame to his dead father, that defense likely will not surface until the criminal trial. Poston said that if Marsh is called to testify in the federal suit, he will assert his Fifth Amendment right not to incriminate himself. “Only the Fifth Amendment is our friend,” Poston said. NO EXPLANATION FOUND The thousands of pages of documents filed in the suits offer no explanation as to why Brent Marsh stopped cremating bodies and began stockpiling them in vaults, stacking them like cordwood in a building that housed the crematory, unceremoniously dumping the remains in pits and amid piles of trash, or scattering them like discarded mannequins across the crematory compound. In a deposition, Wilson called the Marshes “a good family, just well-respected, a well-thought of family” who had never been in trouble with the law. Tommy Ray Marsh and his wife, a Walker teacher for 40 years, were involved in local civic and service organizations. Brent Marsh won a football scholarship to the University of Tennessee at Chattanooga upon graduating from LaFayette High School. After returning home, Brent Marsh served on the county’s local Division of Family and Children Services board. The senior Marsh had operated a grave-digging business in Walker for nearly a decade before he built and began operating the crematory in 1982. He ran an unsuccessful campaign for county coroner in 1992. Funeral home operators who visited the crematory during Tommy Ray Marsh’s tenure as operator never found anything amiss, according to court records. But court records claim that Tri-State was never licensed. And neither Tommy Ray Marsh nor his son was licensed as a funeral director. John Massey, an inspector for the Georgia Board of Funeral Services, is quoted in court records as saying he never inspected the crematory because he inspected only licensed funeral establishments. Massey also said that by 1993, it was common knowledge in the funeral industry in north Georgia that Tri-State was unlicensed. Asked whether he ever had felt compelled to take the matter to the funeral board, which licenses and regulates the state’s funeral industry, Massey said, “Personally, I think that everybody was aware that it did not meet the criteria of the law.” But Sheriff Wilson said he was shocked when his office received a call on Feb. 15, 2002, saying that a passerby’s dog had unearthed a human skull. DISCOVERY ‘BEGGED BELIEVABILITY’ Within hours, Wilson and the Walker coroner had asked the Georgia Bureau of Investigation for help. Kris L. Sperry, the GBI’s chief medical examiner, recalled in a deposition that the coroner called him three times that day — first to report he had found a skull, then to tell him, “We’re finding bodies and body parts,” and finally to say, “You’re not going to believe this. We need you up here now.” Sperry didn’t arrive until after dark. By the light of flashlights and the moon, Sperry found the body of an elderly woman in a cardboard burn box sitting in the back of a white van backed up to the crematory entrance. Inside the aluminum building that housed the crematory, Sperry stepped over corpses that spilled onto the concrete floor and threatened to block the door, he recalled in a deposition unsealed in February. Others were lying inside the crematory and stashed in its anteroom. “The bodies as we found them were basically in the state they probably had arrived in,” Sperry said. “Some were unclothed, some had clothes, some were in caskets or boxes or body bags, and others were not.” Human hand and foot bones were found nearby. Flashlights illuminated a rib cage amid a pile of debris and more skulls in the chest-high brush. As they surveyed the macabre scene, Sperry recalled that one of the deputies turned to him and asked, “Doc, what do you want us to do?” “It begged believability,” Sperry said in his deposition. “It was just something that transcended anything I, and I think pretty much everyone else there, had ever seen. And then understanding it in the context of the crematorium, and that these were individuals who were supposed to be cremated but yet they were piled up in this way … some where, obviously, rats and other small animals had chewed on them. Just looking at all of this, it was, it’s still, it was very difficult to find words to describe it.” A BETRAYAL OF TRUST The grisly details, as they trickled out, horrified the families of the dead. Their lawyers later would recognize the emotional impact of such a bizarre and gruesome case. Court filings indicate how they likely will explain the case to a jury. “The class members trusted the funeral home defendants to provide peace and certainty in laying to rest the remains of their loved ones,” plaintiffs’ liaison counsel Robert H. Smalley III, of McCamy, Phillips, Tuggle and Fordham in Dalton, Ga., wrote in a brief. “Instead, the class members face the horrible truth that the funeral homes they trusted shipped their loved ones’ remains to Tri-State — an unlicensed, untrained and unsupervised collection of sheds in rural Georgia, which demonstrated unspeakable disrespect for the dead. “These trusted funeral homes consigned remains to Tri-State without even minimal investigation into Tri-State’s competency or practices, and without any supervision or monitoring of Tri-State’s activities. … The class members expected, paid for, were promised and deserved more,” Smalley wrote. THE BURDEN OF DEFENSE LAWYERS Besides the gruesome details, a series of pretrial rulings by Murphy, including a decision to certify a class, have added to the burden of defense lawyers. Funeral home attorneys had sought to try each case individually — in part because so many plaintiffs had no evidence that the cremains returned to them were not those of their relatives. The funeral homes also had sought to impose a statute of limitations and restrict claims to those associated with bodies delivered to the crematory since 1997. Instead, Murphy certified the case as a class action and extended it to include the next of kin of anyone whose body was delivered to Tri-State from 1988 to 2002. Murphy also established a subclass of next of kin of decedents “whose uncremated or otherwise desecrated remains” were recovered on the Tri-State compound. He also agreed to allow expert testimony, gleaned during depositions taken over the past two years, that reflected the funeral industry’s awareness of previous cases where crematories had mishandled remains and the knowledge among funeral directors in Georgia that Tri-State was unlicensed. And, although the funeral homes contend that Georgia did not require crematories to be licensed while Tri-State was in operation, Murphy refused to prohibit plaintiffs’ attorneys from referring to Tri-State as “the unlicensed crematory.” VOICES OF VICTIMS In an order he handed down Friday, Murphy also refused to exclude testimony from families of the dead regarding the emotional distress they suffered as news broke of the GBI’s grim discovery at Tri-State. He decided that testimony from witnesses and documentary evidence, including photographs of human remains, could be presented to the jury. That likely would expose the jury to the testimony of more than 100 plaintiffs. Class member Christine Lindley is one of them. Both her sister and son were taken to Tri-State for cremation. Her sister’s remains were found in a field at Tri-State, but Lindley never learned whether her son’s body was cremated. “He could be there in one of those burial sites that they haven’t even uncovered yet,” she testified in an affidavit. “Those are my night terrors. That is what I have to live with. I have one lost and one found. And it is a hell of a lot harder to have one lost and not know where my son is.” Or the jury might hear from Amy Stanton, who does not know if her father’s body, delivered to Tri-State, was cremated properly. In a deposition, she said, “I’m not sure we’ll ever be able to bring closure to the situation, not knowing for sure. It’s not supposed to be like this.” The pending criminal charges against Brent Marsh, and his decision to assert his Fifth Amendment rights, also could hurt the defense of his funeral home co-defendants. In a deposition, Marsh asserted his Fifth Amendment right more than 185 times, according to court records. In Georgia, a civil jury is permitted to draw an adverse inference against a defendant who exercises his Fifth Amendment privilege. THE PLAINTIFFS’ MAIN PROBLEM The plaintiffs’ main task at trial will be convincing a jury that the families of everyone sent to Tri-State for cremation — including those whose bodies never were recovered or identified on the grounds — have a legitimate damages claim. They also must convince jurors that the funeral homes are responsible for the crematory’s actions, even without direct evidence that a body was mishandled. Some will never know if their loved ones’ remains actually were cremated and returned to them. The remains of Floridian Naomi Webb’s daughter should have been cremated in 2001. That year, a number of other bodies delivered to the crematory were dumped in open pits on the property. The body of Webb’s daughter was never found at Tri-State. But her mother insists that she never will know whether the ashes returned to her by Tri-State, which the family scattered in the Gulf of Mexico, were really her daughter’s remains. Plaintiffs’ counsel Smalley isn’t taking anything for granted. “No outcome at trial is without risks,” he wrote after settling with two funeral homes last week. He noted the complexity of a case that must consider what responsibility the funeral homes had to guard against the unlikely possibility that a crematory operator would throw away bodies, as well as the difficulty in placing a value on the families’ grief and revulsion. “The outcome of this case at trial,” he wrote, “can only be characterized as uncertain.”

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