Montana Innocence Project freed client Cody Marble became the first person to file for exoneree compensation under House Bill 92 last September. This law was meant to assist exonerees in rebuilding their lives after experiencing unimaginable injustices, but as Cody puts it, those tasked with carrying out the law “have done everything possible to defy every legislative intent.”
Cody’s wrongful conviction
At age 17, Cody completed an in-patient drug treatment program. Just four days after his program release, Cody was arrested for an alleged rape at the treatment center and was wrongfully convicted of the crime in 2002. Evidence of Cody’s innocence began to mount, including a program employee testifying that they did not believe the crime had occurred, to evidence that the youth who had implicated Cody were not located where they claimed to be in the program facility at the time of the alleged crime, invalidating their eyewitness accounts.
MTIP obtained multiple witness recantations. After a lengthy back-and-forth with the courts, Cody’s wrongful conviction was finally overturned in January 2017.
HB 92
HB 92 was the culminating result of more than three years of careful study and thoughtful deliberation by the Law and Justice Interim Committee and was passed in the 2021 legislative session with the help of testimony from Cody and other innocence advocates. Before HB 92, Montana only offered college tuition assistance to exonerees and was one of the only states not to provide monetary compensation. HB 92 requires the payment of $60,000 for each year of wrongful incarceration and $25,000 for each year of wrongful supervision to exonerees who complete the compensation claim process. While the process is underway, the law mandates the Department of Corrections (DOC) to provide a $5,000 transition assistance grant and monthly rental vouchers for the pendency of the proceeding.
In the final days of the legislative session, Gov. Greg Gianforte issued an amendatory veto; the legislature had to adopt his proposed changes to the bill, or he would veto it. One of the notable changes is that a person who claims compensation under HB 92 is prohibited from holding bad actors accountable by making civil rights claims against the state or local government through a federal lawsuit. The original bill included an offset provision, allowing for exonerees to pursue both routes and return state compensation if they were successful in their suit and the federal award exceeded the amount of state compensation received.
Cody’s experience with HB 92
In January 2019, Cody filed a civil claim against Missoula County and law-enforcement officers seeking damages for his wrongful conviction. Due to the changes from the amendatory veto, Cody was forced to decide between the two. The civil rights claim, if successful, would have likely produced a much larger award than the state compensation law provides.
“It’s a big trade-off for me because it’s going to be way less money if I get any at all,” Cody said. “But it’s supposed to be an easier process, I guess; although, I haven’t noticed that. They’ve defied me every inch of the way. I guess I don’t even want to know what the other way would look like. … As far as this [the compensation claim] goes, it’s more of just an issue of whether I’m innocent or not. To me, that seems simpler than arguing all these technical immunities.”
In addition to his perception that the compensation claim route would be easier, Cody viewed the transition assistance grant and the rental vouchers as appealing aspects of HB 92. Cody should have received the $5,000 grant immediately upon filing, but the DOC refused to pay it because the law states it should be issued within 30 days of release from prison, and Cody was released in 2016. The 30-day rule was not intended for DOC to deny people released before the creation of the law but rather to ensure people receive their grants timely. Following an article about Cody not receiving the grant, DOC issued the payment.
“All of a sudden, they just knew how to write a check,” Cody said.
The same news story, reported by Mike Dennison, revealed the DOC had also not provided Cody with the rental vouchers. HB 92 requires rental assistance for the pendency of the compensation application proceeding. Following the article, the DOC issued Cody three months of rent based on a rule meant for people being let out on parole who are denied pre-release.
“They just ignored it for months,” Cody said. “They wouldn’t call my attorney back. Then when the news picked it up, they just helped themselves to decide that applied to this three-month parolee thing. I would still have to be an offender and a parolee for their interpretation to even work.”
The transition assistance and rental vouchers are an essential part of the law because exonerees face an uphill battle upon release from wrongful incarceration. They have lost years of their lives for crimes they did not commit – years they could have spent building careers and community. Cody currently lives in Conrad, Montana, where he said seemingly all 2,500 people know about his wrongful conviction.
“You can never get rid of the accusation,” Cody said. “There are always people that in the back of their mind, your name is associated with a rape. You don’t want to be a wrongfully convicted rapist, and you don’t want to be a vindicated rapist. You don’t want to be any kind of a rapist. I don’t even know how to get away from that other than change my name someday.”
Because being in Conrad poses a severe strain on his mental health, Cody tries to find work elsewhere. He is sometimes able to work for a couple of friends who live in Kalispell and Great Falls doing drywalling and framing, but it is not steady work. Without the rental voucher, he struggles to make ends meet.
“I just work and try to scrape up rent money because they don’t follow the law or do what they’re supposed to,” Cody said.
But to Cody, the worst part of the compensation claim process is seeing his name beside the word “guilty” again.
“That was pretty hard on me,” Cody said. “I felt pretty vindicated when I got them to write down that I wasn’t. … The whole thing just makes me sick to my stomach.”
The original bill did not require exonerees to prove their innocence again, but through the 2021 legislative session, a provision was added requiring claimants to undergo a trial for the crime they were wrongfully convicted of. This is extremely painful for someone who spent years fighting for their innocence and is still trying to escape the stigma of the false accusation.
“I think it’s pretty ridiculous how first they can say I’m guilty, then they can say I’m innocent, and now they’re allowed to switch their hats back and go back to arguing that I’m guilty again,” Cody said. “Isn’t there something that binds people to their previous legal positions so you can’t keep switching hats and wasting time and money like this?”
If Cody could change one thing about the process, it would be the required trial.
“I thought I was already vindicated and cleared, but I guess only if I don’t want compensated,” Cody said.
His trial is set for June 2023. He does not have a sense of how the trial will work, considering the person who made the false accusation has passed away, and the others who testified against him have recanted.
“It seems like sooner or later, they’re going to figure out what Missoula did that they don’t have a case,” Cody said. “There’s a reason Missoula didn’t go back to trial.”
Going forward
The Montana Innocence Project will continue to follow Cody’s compensation journey. MTIP will also continue to update the Law and Justice Interim Committee and advocate for the law’s renewal and improvement in the 2023 session.