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Cost of Wrongful Incarceration

$436,514 (in 2015 dollars)

Contributing Factors

Photo of Cody Marble
Cody Marble (Photo from The Missoulian)

Incentivized witnesses, false testimony, and recanted recantations were all present in the seemingly never-ending nightmare Montana Innocence Project freed client Cody Marble experienced during the prime years of his life.

 The Arrest 

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. Four days after he was released, Marble was arrested and charged with raping 13-year-old Robert Thomas in the showers at the facility. The alleged rape was said to have occurred on March 10, just two days before Marble’s release date. After rejecting the state’s offer to plead guilty in exchange for probation, Marble went to trial in Missoula County District Court in November 2002. 

The Trial 

Thomas testified that Marble raped him, and two other inmates testified they saw the rape occur. Scott Kruse, the inmate who initially reported the rape, did not testify because it was revealed that he was in lockdown at the time of the alleged rape, making it impossible for him to have witnessed it.  

The jury found Marble guilty on November 22, 2002 after a three-day trial. He was sentenced to 20 years with all but the first five suspended. Marble was released on parole in January 2005. Over the next decade, Marble was sent back to prison four times for using or possessing drugs. Marble maintained that he suffered from substance use disorder, but he was adamant about his innocence pertaining to the rape charge.  

Evidence of Innocence

Over time, evidence supporting Marble’s innocence began to accumulate. In 2008, a guard at the detention center said she did not believe a rape occurred. Additionally, it became known that the inmates who claimed to have witnessed the event were not actually near the area at the time they said it happened. Criminal psychologists who treated Marble also did not believe he raped anyone and doubted that he had the capacity to commit such a violent act. Internal security logs, additionally, showed that the window of opportunity for such a crime was virtually non-existent. Finally, 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 the 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.  

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Robert Thomas’s initial recantation. He later signed a more detailed statement.

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. At the deposition, Thomas confirmed that Marble did not rape him. However, Thomas testified at a hearing in October 2012 that he had been raped and had falsely recanted.

In November 2013, Judge Harkin denied the motion. MTIP appealed the ruling.  

Thomas died by suicide in April 2014 in Havre, Montana during a standoff with police.  

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 to charge him with perjury if he contradicted his original testimony.  

Cody Marble in front of the Missoula County Courthouse
Cody Marble in front of the Missoula County Courthouse (Photo from The Missoulian)

Pabst said she filed the motion to dismiss following “an extensive review of thousands of pages of documents, spanning 14 years, including initial investigative reports and depositions, trial transcripts, appeal records, post-conviction litigation documents, and recent witness interviews.” 

Pabst ultimately declared that “after weighty consideration, I have concluded that Marble’s conviction lacks integrity and in the interests of doing justice, it must be dismissed.”

The case was not dismissed. Instead, Missoula County District County 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 for perjury for recanting under oath. 

The Case is Finally 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.  

Cody Marble testifying in favor of exoneree compensation in Montana
Cody Marble testifying in favor of exoneree compensation in Montana

In January 2019, Marble filed a civil claim against Missoula County and law-enforcement officers seeking damages for his wrongful conviction.  

Since his release, Marble has been instrumental in MTIP’s policy work to change Montana’s law to include monetary compensation for exonerees.

MTIP Legal Director, Caiti Carpenter, on false testimony, incentives witnesses, and recanted recantations in Marbles case: