Alleged rape in Missoula County Juvenile Detention Facility

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As a result of all this coverage, Cody Marble's case begins to inspire some more attention. From John S. Adams' blog, primarily focused on Montana State politics:

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THE LOWDOWN
NEWS AND NOTES FROM THE MONTANA STATE CAPITAL

FRIDAY, DECEMBER 17, 2010
Alleged rape victim recants; prosecutor seems disinterested

I was re-reading Mike Dennison's piece on the Missoula man who fought for eight years to overturn is rape conviction and I was absolutely stunned by the prosecutor's quote in the story.

First a little background...

Cody Marble, 26, was convicted in 2002 of raping a 13-year-old fellow inmate at the Missoula County Juvenile Detention Facility and sentenced to 20 years in prison. Marble adamantly denied the charges from the beginning and has insisted all along that he was set up by his fellow inmates.

Now, according to Dennison's article, the alleged victim said the rape never happened and that Marble was indeed framed by fellow inmates (emphasis are mine):

"In a statement filed Tuesday with Marble's petition, the alleged victim, now 22,

says he was not raped by Marble and that he was told by other teenagers held in the detention center to make up the story to frame Marble for the crime.

"I testified falsely against Cody Marble at the trial," he said in his statement. "I thought by then that the story had gone too far and I could not go back. I never thought he would be found guilty or go to prison. ... My hope now is to set the record straight."[/list]

That a HUGE twist in this case.

The alleged victim, and the only real witness other than Marble, says he wasn't raped and that he lied in court because he "though that the story had gone too far." It's pretty easy for me to imagine that a 13-year-old might be afraid to tell the truth after a lie had gone that far.

But here's the part of the story that left my jaw on the kitchen table (again, emphasis mine):

Marble's petition, filed in state District Court in Missoula, asks the court to hold a hearing on the new evidence and either set aside Marble's conviction or schedule a new trial.

Missoula County Attorney Fred Van Valkenburg, who had seen the petition only briefly Tuesday afternoon, said it's surprising to see a victim recanting testimony eight years later.

"It's just one more thing that Cody Marble is trying to do to avoid responsibility for his case," Van Valkenburg said. "We're just going to have to deal with it."[/list]

Faced with a signed statement from the alleged victim saying the rape never actually occurred, and that Marble has indeed been telling the truth—that he was framed by fellow inmates—Van Valkenburg dismisses the new evidence and says Marble "is trying to avoid responsibility."

Responsibility for what? Being in jail at the wrong time with the wrong inmates? For being convicted of a rape that even the victim now says never happened?

I'm absolutely dumbfounded by VanValkenburg's statement.

The Montana Innocence Project obtained the victim's statement last summer. Jessie McQuillan, executive director of the Innocence Project, had this to say:

"Our investigation yielded information that supports his innocence and raised more questions, and we turned that over (to Marble's attorney)," said Jessie McQuillan, executive director of the Montana Innocence Project. "The centerpiece of the petition is that the alleged victim has recanted. He says what many people suspected: That the rape never took place."
    ---
Innocence Project staffers and lawyers learned that the alleged victim was ready to recant his trial testimony, and visited him at the state prison in Deer Lodge 11 months ago, McQuillan said.
"He told us it was time to recant and we got the signed statement in July, at a subsequent visit with him," she said.

Good job Mike Dennison for following this story and reporting on Cody Marble's case after many journalists—including yours truly—weren't able to put all the pieces together.

And hats off to my former Missoula Independent colleague Jessie McQuillan and the Montana Innocence Project for obtaining this startling admission from the alleged victim. For those who don't know, Jessie McQuillan is also the award-winning  journalist who made Barry Beach a household name in Montana. You can read her excellent reporting on Beach's case, the article that lead  to a 2-hour Dateline NBC special, here.

Am I over reacting here? Please read the whole story and this stunning statement by an elected official and share your thoughts.


Posted by John S. Adams at 8:30 AM
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Labels: Cody Marble, Fred Van Valkenburg, Mike Dennison, Montana Innocence Project

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A comment left for the above blog entry, "Alleged rape victim recants; prosecutor seems disinterested" (by John S. Adams; Dec. 17, 2010; The Lowdown):


elkamino said... December 17, 2010 8:46 AM

that was EXACTLY my response to vanvalkenburg's comment when i read this story yesterday. shouldn't our prosecutors focus on justice and not just blind victory? fred's statement pretty clearly shows a bias against even considering what looks to be credible evidence.

seriously. i don't claim to know any more than is reported in this story but goddamn fred's comments should be called out by whatever association or board montanans use to monitor prosecutorial bias.

and besides, what if fred someday finds himself wrongly accused?

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Missoula County Prosecutor Fred Van Valkenburg tries to downplay the importance of the recanted testimony:

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Missoulian
Prosecutor: Missoula man trying to overturn rape conviction has 'no evidence'

By MIKE DENNISON of the Missoulian · missoulian.com |  Posted: Sunday, July 10, 2011 6:15 am


Cody Marble stands outside the Missoula County Courthouse on Tuesday morning. Marble is filing a petition to overturn a 2002 rape conviction after the alleged victim recently recanted the accusation and testimony. "I just want my life back. I want my life back from parole, from sex offender registration, from this accusation," says Marble. Photo by LINDA THOMPSON/Missoulian

HELENA - A Missoula man trying to overturn his 2002 rape conviction "has no evidence," because the victim who recanted his original testimony is now refusing to have anything to do with the case, Missoula County prosecutors said court documents filed last week.

Missoula County Attorney Fred Van Valkenburg said the request by 27-year-old Cody Marble to reopen his case should be dismissed, noting that the rape victim has "repeatedly refused" to sign a sworn statement recanting his testimony at the 2002 trial. The victim has signed a recantation, however, but not under oath.

Van Valkenburg also said recantations made by a sexual assault victim who's in prison, such as the victim in Marble's case, are notoriously unreliable and should not be used as the basis to grant Marble a new trial or overturn the conviction.

"Because any ‘new' evidence submitted by (Marble) would be either inadmissible or refuted, it is not likely that a new jury would come to the conclusion that (Marble) is not guilty," wrote Van Valkenburg and his chief deputy, Kirsten Pabst LaCroix.

Marble, who was paroled from Montana State Prison last summer and now lives in Missoula, has proclaimed his innocence from the beginning, saying fellow inmates at the Missoula County Juvenile Detention Facility fabricated the rape in March 2002 to frame him.

A Missoula jury that year convicted Marble of raping a 13-year-old fellow inmate, who testified at the trial that Marble raped him in the county jail. Other juvenile inmates testified against Marble as well.

Marble has filed several unsuccessful appeals of his sentence, but in 2009 the Montana Innocence Project began reviewing his case. The Innocence Project examines cases where inmates may have been wrongly convicted.

Innocence Project officials last year obtained a written statement from the victim that said he testified falsely against Marble at the trial and was told by other teenage prisoners at the Juvenile Detention Center to make up the story to frame Marble.

"My hope now is to set the record straight," wrote the victim, who is now 22 and an inmate at Montana State Prison. He is serving a sentence for having sex with an underage girl.

Based on the recantation and other evidence, Marble last December filed a petition asking to have his conviction overturned or have a new trial.

He also asked that the victim be granted immunity from being prosecuted for perjury, for lying at Marble's trial.

***

Van Valkenburg has opposed the victim's request for immunity, saying anyone who gave knowingly false testimony at a trial should not be shielded from prosecution.

"If prosecutorial immunity is given to those who perjure themselves, there is no guaranteeing the veracity of any future testimony," Van Valkenburg said in court papers filed last week.

Van Valkenburg also said whether the victim will offer new testimony is now in doubt, pointing to a June 20 letter from the victim's attorney, Brett Schandelson of Missoula.

Schandelson, in a letter to Van Valkenburg and Marble's attorney, Colin Stephens, said the victim "has no desire to participate in Mr. Marble's petition any further" and "will not answer questions put to him by either party."

"He desires to be left alone and continue the good progress he has made at (prison) Boot Camp," Schandelson wrote.

Stephens said Friday if the victim is given immunity, he'll certainly testify at any new hearing on Marble's request to overturn his conviction.

The question for the court is whether jurors would have convicted Marble if they knew the victim changed his testimony, Stephens said.

"He has made statements that he lied," Stephens said. "Had the jury known about that then, they would have acquitted (Cody Marble)."

Van Valkenburg, in his filings last week, said the recantation must be considered in its entire context and with other evidence. The victim, although signing the statement prepared by the Innocence Project last year, previously told prison personnel several times that he had been raped by Marble at the juvenile jail in 2002, Van Valkenburg said.

"(The victim's) recantation is the result of a non-objective, non-forensic, leading, goal-oriented 'investigation' by an organization whose mission it is to reverse jury convictions," he argued.

A spokeswoman for the Montana Innocence Project said Friday that Van Valkenburg's characterization of the group is incorrect, and that its mission is to "exonerate the innocent and prevent wrongful convictions."

"Our investigations are not conducted in a leading manner and we reject all cases where evidence concludes that a defendant was involved with the crime for which they have been convicted," said Jessie McQuillan, the group's executive director.

Missoulian State Bureau reporter Mike Dennison can be reached at 1-800-525-4920 or at [email protected].


Copyright 2011 missoulian.com.

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Comments left for the above article, "Prosecutor: Missoula man trying to overturn rape conviction has 'no evidence' " (by Mike Dennison; July 10, 2011; Missoulian):


CheeseMan said on: July 10, 2011, 12:42 pm

So they let a chomo who tried to pick up a 14 yr. old off with just probation, but this guy with a "recant" that has been signed cant get the case open again? Hell, overturn the conviction and we can pick him up later like all the others if he is guilty.

clearwater said on: July 10, 2011, 5:24 pm

Van Balkenburg seems to forget he is an officer of the court and not a judge.

This conviction truly does stink. Testimonies from other inmates? Really?

What is this man's prior history? Any violence or sexual assaault? Anything at all?

The attorney has no interest in justice here.......he wants the conviction to stick. He wants you to vote him in on the next election.

No....NO on van

startingover said on: July 10, 2011, 11:15 pm

Prosecutors don't care about the facts, or the evidence, unless it is in their favor. They care nothing for justice, only about conviction rates. Innocent, Guilty, doesn't matter, in their eyes everyone is guilty of something, and should be prosecuted with whatever they can get.

tinlizzie said on: July 11, 2011, 10:06 am

First off this kid refuses to accept a plea bargain because that would mean he was guilty, and takes his chances with the jury and gets convicted. Then again he refuses to take classes that would have deemed him a sexual offender and leads to a longer jail time yet, he does the extra time because he doesn't want the stigma of the sexual offender. Van Valkenburg needs to let his ego out of this and retry this case or rescind the conviction. He is innocent and the "proof" that he is guilty is from some juveniles and the main victim recanted??? Sounds alot like the Barry Beach trial and our esteemed ex-govenor, Marc Racoit.

Kandi said on: July 11, 2011, 4:03 pm

Seems to me that this young man (the "victim") has accomplished the goal of the penal system otherwise baptized the 'correctional system' because he wants to right that which is wrong, "My hope now is to set the record straight,"
Could it be he realized after finding himself in the same position he sentenced Cody too that he became enlightened just how harmful the "lie" can become.
Not only has this young man learned some lessons but he has gained the courage and principles he did not have at age 13. The courage comes from bucking the system that helped to corrupt the case and continues to do so by "blackmailing" this young man on the road to a possible better future having paid the price for his crime, by denying him a chance to "reconcile" himself with Cody and society in general.
Is that not the hope of the justice system that has espoused a premise of "Better that ten guilty persons escape than that one innocent suffer," that the one that commits crime be reformed to be in good standing back in the community as a productive citizen?
This young man has been courageous to come forward because one would be foolish to believe that a recantation like this would not be met with threats by the enemies of truth and justice either of a physical or legal nature. I say BRAVO! Young man.
Now as to the suggestion that because this young man has not signed a statement under oath is a joke. One needs to do very little research to reveal the large numbers of people 'under oath' being totally corrupt and total liars.
If you think an oath is so strong especially in government you need only to review the abuse case (both sexual and physical) by employees of PINE HILLS YOUTH CORRECTIONAL FACILITY: THE STATE OF MONTANA DEPARTMENT OF CORECTIONS; etc. Case No. BDV-2002-512 ...2006...Helena in Judge Sherlock's court.
Not only was discovery withheld for 4-5 years and revealed the day before the last day of the trial but that same revealed evidence was almost secreted away by the request of the state's attorney by a torte claims officer of the state...right in front of the judge. No one paid the price for that crime by agents of government under oath because they have "some kind of special immunity from prosecution that lets them freely commit crimes"
Don't come back at me if you don't read the Pine Hills case!
"Van Valkenburg has opposed the victim's request for immunity, saying anyone who gave knowingly false testimony at a trial should not be shielded from prosecution.
"If prosecutorial immunity is given to those who perjure themselves, there is no guaranteeing the veracity of any future testimony," Van Valkenburg said in court papers filed last week."

This young man has learned a lesson many do not 'to get right, you need to make it right yourself'. They say confession is good for ones' soul.
He deserves immunity for making a big mistake at 13 YEARS of AGE and wants a better life. He is paying for his crimes.
"Stephens said Friday if the victim is given immunity, he'll certainly testify at any new hearing on Marble's request to overturn his conviction.
Stephens said Friday if the victim is given immunity, he'll certainly testify at any new hearing on Marble's request to overturn his conviction."
Justice done!
Let him come forward as a man who now understands compassion and true justice.
"The victim has signed a recantation, however, but not under oath.

Van Valkenburg also said recantations made by a sexual assault victim who's in prison, such as the victim in Marble's case, are notoriously unreliable and should not be used as the basis to grant Marble a new trial or overturn the conviction." Whose more unreliable a man that protects a lie or one who tells the truth?
"previously told prison personnel several times that he had been raped" and you expect us to believe prison guards like the ones with the 'cell phone' deal or the sexual harassment claims...really?
They say everyone has their price and jobs aren't easy to come by!
Apparently our county attorney doesn't believe the most important thing is that the TRUTH be told! It's not about truth to him, it is about convictions for job security, so much for being a public servant under sworn oath.
Kandi

© Copyright 2011, missoulian.com, Missoula, MT

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Another piece from John S. Adams' blog The Lowdown:

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THE LOWDOWN
NEWS AND NOTES FROM THE MONTANA STATE CAPITAL

MONDAY, JULY 18, 2011
Double standard for perjury in Missoula County?

Late last year I wrote here about a story that Lee's Mike Dennison has been following about a Missoula man has fought for nearly a decade to overturn is rape conviction.

Cody Marble, 27, was convicted in 2002 of raping a 13-year-old fellow inmate at the Missoula County Juvenile Detention Facility and sentenced to 20 years in prison. Marble adamantly denied the charges from the beginning and has insisted all along that he was set up by his fellow inmates.

Dennison reported last December that victim, now in his 20s, admitted to investigators for the Montana Innocence Project that he made up his testimony. From Dennison's piece:

In a statement filed Tuesday with Marble's petition, the alleged victim, now 22, says he was not raped by Marble and that he was told by other teenagers held in the detention center to make up the story to frame Marble for the crime.

"I testified falsely against Cody Marble at the trial," he said in his statement. "I thought by then that the story had gone too far and I could not go back. I never thought he would be found guilty or go to prison. ... My hope now is to set the record straight."

What was Missoula County Attorney Fred Van Valkenburg's response to seeing the victim's signed a statement recanting his 2002 testimony?

"It's just one more thing that Cody Marble is trying to do to avoid responsibility for his case," Van Valkenburg said. "We're just going to have to deal with it."

Dennison followed-up on the story last week reporting that Van Valkenburg filed court documents saying that Marble has "no evidence" that could overturn his rape conviction  because the victim has "repeatedly refused" to sign a sworn statement recanting his 2002 court testimony. The victim, by the way, is serving a sentence in Deer Lodge for having sex with an underage girl, and is thus already under the thumb of the criminal justice system.

Now, according to the victim's lawyer, Brett Schandelson of Missoula, the victim "has no desire to participate in Mr. Marble's petition any further" and "will not answer questions put to him by either party."

"He desires to be left alone and continue the good progress he has made at (prison) Boot Camp," Schandelson wrote.

Could the reason his client doesn't want to go on the record and say he lied in 2002 have something to do with his fear of being prosecuted for perjury, a crime punishable by up to 10 years in prison and a $50,000 fine?

Marble has asked the court to grant the victim—who was 13 at the time of the alleged rape—immunity from perjury.

But according to Dennison's report, Van Valkenburg opposed that request, saying:

...anyone who gave knowingly false testimony at a trial should not be shielded from prosecution.

"If prosecutorial immunity is given to those who perjure themselves, there is no guaranteeing the veracity of any future testimony," Van Valkenburg said in court papers filed this week.

So if the victim comes forward and recants testimony he gave when he was 13 and says that the rape Cody Marble was convicted of never happened, he could face more prison time and a huge fine. But if he doesn't recant, he serves out his sentence in Deer Lodge and goes on with his life while Cody Marble continues to be labeled as a sex offender. That's the situation Van Valkenburg has set up by denying to give the victim prosecutorial immunity.

Van Valkenburg's position really blows me away. Here's why:

In February 2006 I covered the high-profile trial of a man accused of raping a woman at a now-defunct popular nightclub in Missoula. Wilbert Fish was charged with sexual intercourse without consent, a felony, after police alleged they saw Fish with his hand down the pants of an unconscious 21-year-old woman.

However, video surveillance tapes shown to jurors forced arresting Missoula Police officers Ryan Ludemann and Duncan Crawford to admit on the stand that they had falsified the arrest report and gave false testimony during the trial. It also came out during that trial that Officer Ludemann has history of lying while on the job. Ludemann once cited a woman for driving with a suspended license based on an accusation made by his own wife, despite the fact that he never actually saw the woman driving.  Driving with a suspended licenses carries a minimum 48 hours in jail. Ludemann wrote in his official report that he saw the woman driving but that he "lost her in traffic." He then lied to his superiors to try to cover-up his lies. He admitted to all of that during the Fish trial.

After hearing that testimony and after watching video surveillance tapes that proved that Ludemann and Crawford were lying, it took the jury of four women and eight men less than two hours to find Fish not guilty of rape.

So does giving false testimony equal perjury?

According to Montana Code 45-7-201:

A person commits the offense of perjury

if in any official proceeding he knowingly makes a false statement under oath or equivalent affirmation or swears or affirms the truth of a statement previously made, when the statement is material.[/list]

To my knowledge, neither officer Ludemann nor Crawford were ever charged with perjury for their testimony in the Fish trial, despite the fact that they both admitted to giving false statements under oath. I don't know if they were officially reprimanded.

Which brings me to my point. Van Valkenburg was willing to turn a blind eye to perjury when his own law enforcement officials are committing it in the name of securing a conviction. But if a man in his 20s wants to officially "set the record straight" about a lie he says he told when he was 13-years-old—and in the process clear the name of a man who may have been falsely convicted of rape—he should face 10 years in prison and a $50,000 fine?

Colin Stephens, Marble's attorney, told Dennison that if the victim is given immunity, "he'll certainly testify at any new hearing on Marble's request to overturn his conviction."

As Stephens points out in the article, "the question for the court is whether the jury would have convicted Marble if they knew the victim changed his testimony."

Van Valkenburg dismissed the recantation obtained by the Innocence Project as: "the result of a non-objective, non-forensic, leading, goal-oriented 'investigation' by an organization whose mission it is to reverse jury convictions," he argued.

It appears from his statements and actions that Missoula County Attorney Fred Van Valkenburg places a higher value on preserving convictions than serving justice.


Posted by John S. Adams at 12:21 PM
Labels: Cody Marble, double standard, Duncan Crawford, Fred Van Valkenburg, perjury, Ryan Ludemann, Wilbert Fish

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A comment left for the above piece, "Double standard for perjury in Missoula County?" (by John S. Adams; July 18, 2011; The Lowdown):


MTblogger1 said... July 18, 2011 3:48 PM

Below is an interesting article about the recent actions of Gov. Schweitzer:

   

http://billingsgazette.com/news/opinion ... c6ba2.html[/list]


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It was at this point that the link in the OP was posted. Here's that article:

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Missoulian
Victim who recanted testimony granted immunity for rape convict's hearing

By MIKE DENNISON · Missoulian State Bureau · missoulian.com | Posted: Wednesday, August 17, 2011 7:15 am

HELENA - In the latest development in a long-running case of a Missoula man trying to overturn his 2002 jailhouse rape conviction, a state judge says the victim who recently recanted his trial testimony can testify at an upcoming hearing without the fear of being prosecuted for perjury.

Retired District Judge Doug Harkin, who's presiding over the case, last week ordered the hearing on whether to grant a new trial for 27-year-old Cody Marble.

Marble, convicted by a Missoula County jury in November 2002 of raping a 13-year-old boy while both were in the county's juvenile jail, has asked for a new trial, based largely on the victim's signing of a statement last year that said the rape never occurred.

The statement was obtained with the help of the Montana Innocence Project, which examines selected cases involving inmates who say they were wrongly convicted.

Last week, Harkin, who presided over Marble's 2002 trial, granted Marble's request to grant the victim immunity from perjury prosecution - but only for statements the victim may make at the hearing on whether to give Marble a new trial.

"The court needs to hear directly from the recanting witness," Harkin wrote in his order. "Immunity for the witness, limited to what is said at the hearing, will afford the court an opportunity to value credibility (of the witness)."

Marble's attorney, Colin Stephens, said Tuesday that Harkin's order "gives the kid the opportunity to tell the truth without having to get charged with perjury."

The "kid" is now a 22-year-old man in the Montana State Prison, serving out a sentence for having sex with an underage girl.

What he would say at the yet-to-be-scheduled hearing remains to be seen.

A June 20 letter from the man's attorney said he "has no desire to participate in Mr. Marble's petition any further" and "will not answer questions put to him by either party."

"He desires to be left alone and continue the good progress he has made at (prison) Boot Camp," wrote his attorney, Brett Schandelson of Missoula.

Missoula County Attorney Fred Van Valkenburg, who opposed granting immunity to the man, had no comment Tuesday on Harkin's order, and said his office will prepare for the hearing on Marble's petition for a new trial.

Van Valkenburg has argued that Marble's petition should be dismissed, saying the victim's recantation is not credible.

In court documents earlier this year, Van Valkenburg said the rape victim has told several prison personnel that he had been raped while in the juvenile jail. Van Valkenburg also noted that the man "repeatedly refused" to sign a sworn statement recanting his testimony at the 2002 trial, instead signing an unsworn statement prepared by the Innocence Project.

Van Valkenburg said recantations made by a sexual assault victim in prison, such as the victim in Marble's case, are notoriously unreliable and should not be used as the basis to grant Marble a new trial or overturn the conviction.

Marble, who was paroled from Montana State Prison last summer and lives now in Missoula, has proclaimed his innocence from the beginning, saying fellow inmates at the Missoula County Juvenile Detention Facility fabricated the rape in March 2002 to frame him.

Marble was 17 at the time. The victim testified at the trial that Marble raped him in the county jail. Other juvenile inmates testified against Marble as well.

Marble has filed several unsuccessful appeals of his sentence, but in 2009, the Montana Innocence Project began working on his case.


Copyright 2011 missoulian.com.