Contributing Factors
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 his teens and early adulthood.
The arrest
Cody spent five months at an in-patient drug treatment program when he was 17-years-old. Four days after he was released, Cody was arrested and charged with raping 13-year-old Robert Thomas in the showers at the facility.
After rejecting the State’s offer to plead guilty in exchange for probation, Cody went to trial in Missoula County District Court in November 2002.
The trial
Robert testified that Cody raped him, and two other teens in the treatment facility testified they saw the rape occur. Scott Kruse, the teen 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 Cody guilty on November 22, 2002, after a three-day trial. He was sentenced to 20 years, with all but the first five suspended. Cody was released on parole in January 2005.
Evidence of innocence
Over the years, evidence of Cody’s innocence began to mount, including a program employee testifying that they did not believe the rape occurred, to evidence that the teens who implicated Cody were not located where they claimed to be in the program facility at the time of the alleged rape. Criminal psychologists who treated Cody also did not believe he raped anyone and doubted that he had the capacity to commit a violent act. Internal security logs from the facility also showed that the window of opportunity for such a crime was virtually non-existent. Finally, Cody heard rumors that Robert, who was later convicted of rape and serving a prison sentence, was telling people at the facility that Cody was innocent.
MTIP takes the case
The Montana Innocence Project took the case in 2009. Several interviews with Robert revealed that he falsely implicated Cody. After being convicted of a sex crime himself, Robert said he felt compelled to recant because he understood the reality of being a convicted rapist. Another witness from Cody’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 Robert be interviewed under oath. At the deposition, Robert said Cody did not rape him. However, Robert 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.
Robert 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’s Office filed a motion to dismiss the case based on the discovery that Robert only recanted his recantation because former-Missoula County Attorney Fred Van Valkenburg threatened to charge him with perjury if he contradicted his original testimony.
The County Attorney’s Office filed a 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.” They found that the “conviction lacks integrity and in the interests of doing justice, it must be dismissed.”
The case is finally dismissed
On January 3, 2017, Judge Ed McLean vacated the conviction.
In January 2019, Cody filed a civil claim against Missoula County and law enforcement officers seeking damages for his wrongful conviction. In September 2021, he dropped this case and instead filed to receive compensation from the state under a law that went into effect earlier that year—a law he was instrumental in getting passed thanks to his testimony sharing his story.
MTIP Legal Director, Caiti Carpenter, on false testimony, incentives witnesses, and recanted recantations in Cody Marble’s case:
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