Here's some earlier news coverage, from about three years ago.
The first part of the below article (not including the "sidebar" starting with "Sex offenders find themselves in Catch-22...") was also published the same day by the Helena
Independent Record under the title "
Jailhouse rape case has doubters."
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MissoulianQuestions raised over rape convictionBy MIKE DENNISON of the Missoulian State Bureau missoulian.com | Posted: Sunday, May 11, 2008 12:00 am
Cody Marble appeared in Missoula County District Court last month on a parole violation.
Photo by MICHAEL GALLACHER/MissoulianConvicted of a jailhouse rape six years ago, Cody Marble has had to attend sex-offender counseling - but one of his counselors believes Marble may be innocent.
Another sex-offender therapist and psychologist who examined Marble after his 2002 conviction for raping a 13-year-old boy at the Missoula County Juvenile Detention Center says the same, and has made a sworn statement saying he thinks the crime never occurred.
A Detention Center officer who was in the cell area moments after the rape allegedly occurred says she, too, thinks it didn't happen - but was never asked that question at Marble's jury trial.
Marble himself insists on his innocence. But the 23-year-old Missoula man has failed at every attempt to overturn his conviction, and now faces a possible return to Montana State Prison for up to 15 years, for violating terms of his probation.
Is Marble's case that of an innocent man convicted on questionable evidence, in a system and society where accused sex offenders are seen as guilty until proven innocent?
The prosecutor for the case and an assistant attorney general who reviewed it say no, and that Marble's claims of a frame-up and ineffective defense counsel don't wash.
"I'm confident the jury made the right decision," says Dorothy Brownlow, chief deputy attorney for Missoula County.
Brownlow says attorneys from both sides examined the case thoroughly, and that it's hard to see how a 13-year-old victim and four other juveniles who testified about the crime would have all told a similar lie.
Indeed, Marble is hardly a sympathetic figure, having been in and out of jails, juvenile programs and prison since age 14, repeatedly violating probation or parole rules by using marijuana and methamphetamine.
He also ignored defense counsel's advice to accept a deal on the rape charge, to plead guilty in exchange for a three-year deferred sentence, avoiding prison. Instead, he insisted on a trial, was convicted and received a 20-year sentence.
There's also no black-and-white evidence, such as DNA, that could exonerate him. In fact, there was no physical evidence at all of the rape.
A Missoula District Court jury convicted Marble in November 2002, mostly on the testimony of the alleged victim and other juvenile jail inmates. Marble says the other boys made up the crime to get back at him for perceived slights, or to attempt to get more favorable treatment in their own criminal cases.
"There's no one thing that I can say that will make you say, 'I believe you,' " Marble said in a recent interview from the Missoula County Detention Center. "You have to listen to the (counselors) who evaluated me. Look at my criminal past. Come talk to me, look at me."
Several people who've examined Marble or with knowledge of the case say the crime doesn't add up. Their comments either couldn't be or weren't heard by the jury, and District Judge Douglas Harkin has ruled that the sworn statement filed last year by Missoula psychologist Michael Scolatti wouldn't have been allowed as evidence at trial.
The case began six years ago, a few days after Marble, then 17, was released from the Missoula County Juvenile Detention Center. He'd been in the center nearly five months, in a cell pod with seven other boys, waiting to see what penalty he would face for walking away in 2001 from a youth treatment program in Marion.
His father bailed him out of the center on March 12, 2002. Four days later, sheriff's deputies came to the Marbles' home and arrested Cody, saying boys from the cell pod had accused him of raping a 13-year-old inmate in the cell-pod shower area on March 10.
Marble turned down the plea bargain just before the scheduled trial in November. The jury convicted him after a three-day trial. He was sentenced to 20 years in prison, with 15 of those years suspended.
Scolatti, who's been examining and counseling sex offenders for nearly 28 years, evaluated Marble before he was sentenced.
As part of Marble's 2007 petition seeking to overturn his conviction, Scolatti provided a sworn statement saying he doubted anyone would commit such a crime in an open shower area, visible to everyone else in the cell pod and possibly in sight of guards.
"Such exposure would most commonly serve as a strong deterrent from the type of conduct for which (Marble) was convicted," he wrote.
In a recent interview, Scolatti said he also watched a jail videotape of the cells when the crime allegedly occurred. The tape, which did not show the shower area, showed all eights juvenile inmates moving in and out of their cells, including Marble and his alleged victim.
"There wasn't any sort of anxiety or hyperactivity," he said of Marble's demeanor. "It was so nonchalant. You'd have to be the biggest psychopath in the world to act like that or, you didn't do it."
Scolatti said the Marble case is the only time in his 28-year career that he's submitted a sworn statement about someone's likely innocence in a sex-offender case.
Susan Latimer, a detention officer on duty that night and who did a "cell check" shortly after the rape allegedly occurred, also says she thinks the rape never occurred.
"If a sexual assault would have happened, there are cues you pick up on," says Latimer, who previously worked with sexually abused children at a mental health center in Great Falls. "There was nothing. I never picked up anything sexual."
In a recent interview, Latimer, who lives now in Darby, also told the Lee Newspapers State Bureau she was prepared to express those thoughts on the witness stand - but that nobody asked her.
Latimer was called as a prosecution witness, and testified that she felt "a little tension" in the cell block when she made her check, seeing Marble arguing with a fellow inmate.
Defense lawyer Kathleen Foley cross-examined Latimer for a few minutes, asked almost nothing about the cell check and didn't ask Latimer about her thoughts on the likelihood of the crime or Cody's character.
"Kathleen Foley had a great opportunity, and she releases me (as a witness), and I'm thinking, 'My God, this kid is sunk,' " Latimer said. "She didn't ask me much of anything that I can remember that would have supported Cody."
Latimer said she would have testified that Marble was a respectful kid who was not aggressive and who didn't pick on other kids in the cell pod.
Foley declined to talk to the Lee Newspapers State Bureau about the case. Her law partner, veteran defense lawyer William Boggs of Missoula, says when Foley deposed Latimer three weeks before the trial, Latimer gave no indication she would be a friendly witness.
Latimer said several times during the deposition that she didn't know whether Marble was guilty or innocent and that she didn't have an opinion, Boggs pointed out.
"She was evasive and slippery and uncooperative during the entire deposition," Boggs said. "As a defense lawyer, you see a witness like that, and you keep your distance like you would from a coiled snake."
Latimer says now she felt the defense treated her like the enemy, when in fact she was trying to be objective about the case. During the deposition, she also said she hoped that Marble was innocent, but couldn't be sure what had happened that night at the jail.
Boggs said Foley worked hard on the case and that Marble ignored their advice to take the plea agreement rather than risk a trial where five people, including the alleged 13-year-old victim, were prepared to testify that Marble raped the boy.
The deal offered Marble a three-year deferred sentence, avoiding prison, if he pleaded guilty to rape. He also would have had to register as a sex offender and undergo sex-offender treatment.
Marble and Foley also dispute the circumstances of the plea-agreement rejection.
Foley said in court documents that Marble at first wanted to consider the plea deal, but that his father, Jerry Marble, nixed the idea, saying that "no son of his was going to plead to a faggot offense." Jerry Marble says he recalls telling his son he shouldn't plead guilty if he was innocent.
Cody Marble says he never even considered the deal, and "literally flicked it back across the table at (Foley)."
"I did not commit a crime; I did not intend to plead guilty," he said.
Marble also did not testify in his own defense at the trial. He says now he believes he should have, and that Foley advised him against it.
In her response to Marble's petition claiming ineffective counsel, Foley said she was concerned Marble would testify that neither he nor the alleged victim were even in the shower area, and that she "felt that would be wholly incredible to the jury."
Marble says he knew firsthand of previous attempts by juvenile inmates to make false accusations against inmates they didn't like, as a form of retribution, and believes he was set up by the other inmates.
Keith Williamson, a supervising officer at the Juvenile Detention Center, told other guards he had heard of and suspected a plot by inmates to falsely accuse Marble.
Under questioning by Foley at the trial, Latimer briefly mentioned Williamson's suspicions. But Williamson couldn't testify himself: He died of a heart attack in June 2002, months before the trial.
Foley attempted to ask Latimer more about Williamson's suspicions, but Judge Harkin ruled it was hearsay evidence and stopped the questioning.
The five inmates who testified against Marble, including the 13-year-old boy who said he was raped, denied any conspiracy.
The alleged victim, now 19, is serving a 10-year prison term at Montana State Prison for rape. He pleaded guilty to having sex with an underage girl in 2005.
He did not respond to a written request from the Lee Newspapers State Bureau for an interview.
The juvenile inmate who initially reported the rape to authorities on March 16, six days after it allegedly happened, did not testify at the trial. He was released from jail in the summer of 2002 and disappeared.
The teenager initially told investigators he saw Marble raping the alleged victim in the shower area. But a videotape of the cells showed the accuser had been locked down in his cell during the entire time of the alleged rape, away from the area where the assault was said to occur. He later changed his story to say he'd heard about the rape, rather than saw it.
During the trial, Judge Harkin allowed Foley to put Brownlow, the prosecutor, on the witness stand and question her about how the teenager had initially lied.
Prosecutors also had no physical evidence that a rape occurred. A doctor who examined the 13-year-old accuser six days after the alleged rape found no scars or any signs of physical trauma in or around the boy's anus. He testified at trial that any damage could have healed by that time.
Brownlow says it's not unusual for a rape to be reported days after it happened or to be reported by someone other than the victim.
"I think the way it was reported adds to its credibility," she said in a recent interview. "The victim was in jail together (with his assailant), so he felt that the repercussions for reporting it could have been really significant."
The 13-year-old boy was released from jail the same day as Marble, on March 12. He said nothing about the rape until authorities interviewed him March 16, at a Missoula home for troubled children.
Marble began serving his prison sentence in 2003 and was released in June 2007, having served the five unsuspended years of his 20-year sentence. As a condition of release during his suspended sentence, Marble arranged for sex-offender treatment sessions with Missoula counselor Roger Dowty.
Dowty, who has the largest sex-offender treatment practice in western Montana, says 10 percent to 15 percent of sexual offenders deny their crime, and that he's treated many of them. But with Marble, the denial strikes Dowty as genuine.
"If I were to place a bet, my bet would be that he's not guilty," Dowty says. "I would place a large amount of money on that."
Dowty says Marble could be a casualty of what Dowty calls "representative vigilante-ism," his term for Montana's harsh public attitude toward sex offenders.
That attitude is reflected by a criminal-justice system that aggressively prosecutes accused sex offenders, sometimes regardless of whether the case is strong, and punishes them severely if they choose to go to trial and lose, he says.
"There's nothing worse than being labeled as a sex offender in America," Dowty says. "The whole concept of being innocent until proven guilty is gone. Where you have something like that going on, where you cannot exercise the right to be innocent without just a huge penalty, that's a sign of a big problem."
Marble worked as a maintenance man for a property management firm until October 2007, when he tested positive for methamphetamine use and was briefly detained. He was arrested again a few days later, when police entered a Missoula hotel room where they said they found Marble, another man, some methamphetamine and drug paraphernalia.
Marble is awaiting sentencing for violating his probation for drug use, but is fighting the drug-possession charge.
As Marble sat in the Missoula County jail this winter and spring, waiting to appear in court on the probation violations, Judge Harkin twice ruled against the man's petition seeking to overturn his conviction. The petition accused Foley of "ineffective counsel" and prosecutors of various misconduct, but Harkin rejected Marble's arguments.
Marble has asked Harkin to reconsider the latest ruling.
While Marble was dissatisfied with his defense lawyers, he has much harsher words for prosecutors and law enforcement officers, whom he says made little attempt to scrutinize his accusers or find the truth of the case.
"They want a conviction whether you're guilty or not," he says. "They will lie, cheat and steal to do it. I would have read through the (initial police) reports and, if they looked as absurd as they do, I wouldn't have filed charges."
Brownlow obviously doesn't agree, saying the evidence against Marble was strong.
"I feel very strongly that (we) were careful to make sure we had as much information as we could, and that we had a good, solid case," she said.
Marble and his father, Jerry, say they intend to keep fighting the case, although their legal options are narrow and they don't have an attorney. Cody Marble says he has some hope he can prevail, but isn't optimistic.
"I trusted the system and was pretty naive," Marble says. "I had no reason to think that the system would fail me."
Sex offenders find themselves in Catch-22 if they deny guiltHELENA - For convicted sex offenders who deny they did anything wrong, completing the full treatment program at Montana State Prison is impossible - and, therefore, parole is out of the question.
That's because most sex offenders are required to complete the treatment before they can be considered for parole. And if you deny your crime, you can't complete the treatment.
"Those guys kind of get stuck," says Blair Hopkins, clinical services administrator at the State Prison in Deer Lodge. "They need to be able to admit to some type of sexual inappropriate behavior. For someone who just flat-out denies everything, they really can't complete (the second phase)."
Hopkins and other counselors estimate that 15 percent to 25 percent of those convicted of sex offenses are "deniers," who say they didn't commit the crime.
A small fraction of those might actually be innocent, counselors say.
But that makes no difference in how they're treated under the treatment program or parole rules, Hopkins says: "We have to assume that if they've been convicted of the offense, they've done it. If I said, 'I believe you,' then I'll have 300 guys at my door saying that."
Montana's prison system has a relatively high amount of sex offenders, which includes people convicted of rape, sexual assault, incest, prostitution, child molestation or indecent exposure.
Hopkins looked at 20 states in late 2006, and found that for most, 12 percent to 16 percent of their inmates are sex offenders.
In Montana, it's 25 percent, and one-third of the men incarcerated at the State Prison - 500 people - are sex offenders.
That means long waiting lists for treatment programs. About 250 sex offenders in prison are on the lists now, and the wait for Phase II treatment can be up to two years.
Each year, about 65 sex offenders leave prison without treatment, because they either refused it or their sentence expired before they could complete it.
Most sex-offender therapists in Montana say it makes more sense, and would be no less safe for the public, to send fewer sex offenders to prison and more directly to treatment outside the prison, while on probation.
"I thought it was too lenient when I started (28 years ago)," says veteran psychologist Michael Scolatti of Missoula, who has treated hundreds of sex offenders. "Now, we're enacting laws that don't allow us to show some discretion."
Roger Dowty, another Missoula sex-offender therapist, says he also tries to find ways to treat even those who deny their crimes.
Recent studies have shown that "deniers" are no greater risk to re-offend than those who admit to their crimes, counselors say.
Statistics from the state Corrections Department show that those who don't get any treatment are a greater risk. A 2007 report by the state said only 2 percent of sex offenders who complete treatment return to prison for a new sex crime, while among those who don't complete treatment, the rate is 25 percent.
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