When Cody Marble was 17 years old, he was charged with raping a 13 year-old boy in the juvenile wing of the Missoula County Jail. He was convicted of sexual intercourse without consent in 2002, and sent to prison, all the while proclaiming his innocence.

Marble was released from prison last spring after Missoula County Attorney Kirsten Pabst filed a motion to dismiss the underlying criminal conviction.

On Monday, December 12, there was a hearing in Missoula District Court before retired District Judge Ed McLean to discuss new evidence that has been presented by Marble in his 2010 petition.

Deputy Missoula County Attorney Matt Jennings said former Missoula County Attorney Fred Van Valkenburg was allowed to question witnesses.

“Judge McLean invited Mr. Van Valkenburg as an ‘amicus’ or as a friend of the court to enquire after a few different matters from his time as Missoula County Attorney,” Jennings said. “I think Mr. Van Valkenburg has some concerns about the petition. He believes that some of the evidence presented by Mr. Marble is not sufficient to overcome the jury verdict from 2002, and while we certainly respect Mr. Van Valkenburg’s tenure as county attorney, respectfully, Ms. Pabst, the current county attorney and I disagree in looking at some of that evidence.”

Pabst’s original statement on April 19 stated:

‘Since Marble’s conviction, at least three witnesses—including the victim— have recanted their statements.  Of the original pod-mates, three are dead.  Of those alive, two initially said they witnessed oral (vs. anal) sex until they were corrected by an investigator.  The first juvenile to disclose the crime lied about everything.  It was determined that he could not have seen anything because he was locked inside a cell away from the pod at the time of the alleged assault.

A host of law enforcement officers testified that the crime could not have happened stating there was no adequate window of opportunity; that the other inmates concocted a “set-up”; and/or that Marble was railroaded. 

After weighty consideration, I have concluded that Marble’s judgment lacks integrity and in the interests of doing justice, it must be dismissed.’

Marble is currently free until the next court hearing before Judge McLean.

“We’re waiting for an order from the judge,” he said. “Judge McLean instructed the parties to file proposed orders by next Monday, and after that he’ll need some time to review those, and we hope to get a ruling in the next few weeks.”