MISSOULA — A state judge wants to hold an evidentiary hearing on whether a man convicted of a juvenile detention hall rape when he was 17 should be granted a new trial.
Retired District Judge Ed McLean held a hearing Friday after Missoula County Attorney Kirsten Pabst and Cody Marble’s attorney Colin Stephens filed a joint motion in September asking for a new trial, the Missoulian reported.
Marble was convicted of raping a 13-year-old boy in 2003.
Pabst has argued the victim and two others recanted their statements and that detention staff said there was not a window of opportunity for the rape to have happened and that they’d overheard other juveniles talking about setting up Marble.
The victim later reneged on the recantation he made to the Montana Innocence Project. Pabst argues he did so because former county attorney Fred Van Valkenburg threatened him with a perjury charge. The victim died of suicide during a standoff with Havre police in 2014.
McLean allowed Van Valkenburg to speak at Friday’s hearing because of the statements Pabst made in an April motion asking the judge to dismiss the case against Marble, now 32.
Van Valkenburg argued Friday the “finality of conviction” should stand and that there was no new evidence to present to the court.
McLean countered that Van Valkenburg must have misread the Supreme Court’s decision, which instructed the lower court to re-examine a decision to deny Marble a new trial using a broader interpretation of evidence that had come to light since his conviction.
Pabst, who was not present for Friday’s hearing, called Van Valkenburg’s participation “highly unusual.”
“It is historically unprecedented for any court in this country to give a retired county attorney standing to take an adversarial position against a current county attorney on a case where there is no dispute between the actual parties,” she said.
Before the end of Friday’s hearing, Van Valkenburg suggested the Montana Attorney General’s office be brought in to provide an adversarial opinion during the evidentiary hearing. McLean rejected that request, saying Pabst was elected by the people to be the county attorney.
Marble, who was released from prison in April, attended Friday’s hearing.
A date for the evidentiary hearing was not immediately set.