MISSOULA — A state judge on Thursday ordered a man convicted in a 2002 juvenile detention rape case to be released from a private prison in Shelby.
District Judge Ed McLean still hasn’t ruled on a motion by the county attorney asking that the judgment against Cody Marble be dismissed. McLean said Thursday he likely will, but wanted to give the former county attorney a chance to respond to allegations made in the motion.
Kirsten Pabst filed the motion Tuesday, saying the accuser and two other witnesses had recanted their testimony, that detention officers said the rape could not have happened and that the officers heard other kids were trying to set up Marble, who was 17 at the time. In the interest of justice, she said, the judgment should be dismissed.
Marble has consistently denied the charge. He was sentenced to 20 years in prison with 15 suspended. He also has drug possession convictions from 2008 and 2013, according to Department of Corrections records. The five-year sentence for the 2013 case was suspended.
Pabst’s motion suggested that former County Attorney Fred Van Valkenburg caused the accuser to renege on his July 2010 statement to the Montana Innocence Project that he had lied about the rape by threatening to prosecute him for perjury.
“We recognize that there may be people who will always insist that Marble is guilty, including people who are respected and informed members of our community,” Pabst wrote in her motion. “But we cannot allow personal opinions to sway us from our sworn duty to seek justice, not merely convict.”
McLean said in light of the statements, “professional courtesy and common decency” require the court to offer the former prosecutor a chance to comment. He said the statements attributed to Van Valkenburg — that he could file perjury charges — were an accurate reflection of state law.
Van Valkenburg told the Missoulian he may want to file something, but he wanted to gather more information. He has 21 days to file a response with the court.
McLean directed the Department of Corrections to release Marble from the Crossroads Correctional Center for any sentence he is serving due to the rape conviction. Marble also has Crossroads officials said early Thursday they hadn’t received an order from the state regarding Marble.
The Montana Innocence Project “remains hopeful and confident that in the near future Cody Marble will be completely exonerated, and justice will then be done,” MTIP legal director Larry Mansch said in a statement.
The accuser died of suicide two years ago during a standoff with law enforcement officers in Havre.