Cody Marble spent five months in the County Juvenile Detention Center in Missoula, Montana, completing a youth drug treatment program when he was 17-years-old after being caught with weed. Four days after he was released, Marble was arrested and charged with raping 13-year-old Robert Thomas in the showers at the facility.
After rejecting the prosecution’s offer to plead guilty in exchange for probation, Marble went to trial in Missoula County District Court in November 2002.
Thomas testified that Marble raped him, and two other inmates testified that they saw the rape occur. Scott Kruse, the inmate who initially reported the rape, did not testify because he was in lockdown at the time of the alleged rape and therefore could not have witnessed it.
The jury found Marble guilty, and he was sentenced to 20 years with all but the first five suspended. Marble was released on parole in January 2005.
Following his release, several people expressed their belief in his innocence. In 2008, a guard at the detention center said she did not believe a rape occurred. Sex offender counselors who treated Marble also did not believe he raped anyone. Around this time, Marble heard rumors that Thomas, who was serving time for a rape conviction, was telling people at the facility that Marble was innocent.
MTIP Takes the Case
The Montana Innocence Project took Marble’s case in 2009. Several interviews with Thomas revealed that he falsely implicated Marble. After being convicted of a sex crime himself, Thomas said he felt compelled to recant because he now understood the reality of being a convicted rapist. Another witness from Marble’s trial recanted as well.
In December 2010, MTIP filed a motion for a new trial. Before deciding on the motion, Missoula County District Judge Douglas Harkin ordered that Thomas be interviewed under oath. Thomas recanted his recantation, and Judge Harkin denied the petition. MTIP appealed the ruling.
Thomas committed suicide in April 2014.
In August 2015, the Montana Supreme Court overruled Judge Harkin’s ruling and sent the case back to the Missoula County District Court.
In April 2016, Missoula County Attorney Kirsten Pabst filed a motion to dismiss the case based on the discovery that Thomas only recanted his recantation because then-Missoula County Attorney Fred Van Valkenburg threatened perjury if he contradicted his original testimony.
The case was not dismissed. Instead, Missoula County District Court Judge Ed McLean held a hearing to ask Van Valkenburg, who was the County Attorney when Marble was convicted, his opinion on whether to dismiss Marble’s case. Van Valkenburg testified that he still believed Marble was guilty and that he was merely making an accurate statement of law when he told Thomas he would be charged with perjury for recanting under oath.
The Case is Dismissed
On January 3, 2017, Judge McLean vacated the conviction and ordered a new trial. Pabst filed a motion to dismiss the case three days later, and Judge McLean signed the dismissal order.