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Alleged rape in Missoula County Juvenile Detention Facility

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Ursus:
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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Ursus:
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.


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