Many nights as he falls asleep, Jerry Marble plays a chess game in his head. The 57-year-old plans the calls he'll make the next day and the people he'll visit, an array of journalists, lawyers and advocates whom he prods, each time making anew a case for his son Cody Marble. "I've been stumping around the streets for years, until people are sick of me," Jerry says.
Cody was convicted in 2002 of felony sexual intercourse without consent, for raping a 13-year old boy when he was 17, while the two teens were incarcerated in the juvenile wing of the Missoula County Detention Center.
Cody said he was innocent and refused a deal with prosecutors that would have kept him out of prison in exchange for a guilty plea. He had three misdemeanors by then, two for marijuana use and another for taking the family car without permission. "Cody went into the system a pot smoker," Jerry says.
Five inmates, including the alleged victim, testified against Cody at trial. The first inmate to tell law enforcement that he witnessed the crime did not testify, however. He recanted after it became clear that he was in lockdown at the time of the alleged offense and could not have seen it.
That was the first chink in the case, Jerry says. He points to dozens more. "How in the world do you get put in prison by the inconsistent testimony of juvenile delinquents when there's not a thread of evidence?"
"Cody had not committed this crime"
Cody's Marble's three-and-a-half-day trial in Nov. 2002 culminated in two and half hours of jury deliberations—and a guilty verdict. Fourth Judicial District Court Judge Douglas Harkin sentenced Cody to 20 years in Montana Department of Corrections custody, with 15 years suspended.
Once he was paroled, Cody was designated a sex offender and required to comply with a list of conditions. Cody, now 27, has repeatedly been cited for violating the terms of his release, mostly for drug use. He's currently incarcerated at Montana State Prison in Deer Lodge. Cody's angry, Jerry says, so he acts out. The rape conviction colors nearly every aspect of his son's life, he continues, from employment opportunities to how people perceive him. And it's been that way for Cody's entire adult life. "This kids is—wow, he's got a certain amount of pent-up anger there. He is so bitter. But you know what? So am I."
Anger can be a powerful motivator. The Marble men have worked relentlessly for nearly a decade to overturn the conviction. They've pleaded Cody's case in the Fourth District, the Montana Supreme Court and the Ninth Circuit Court of Appeals.
In 2009, they secured a victory of sorts when the Montana Innocence Project said it would look into Cody's case. The nonprofit sifted through 2,200 pages of discovery material and reams of court filings. Cody took and passed a polygraph test.
"We definitely came away convinced that Cody had not committed this crime," says Montana Innocence Project Executive Director Jessie McQuillan. "We didn't think it had occurred."
The alleged victim, referred to in court documents as "R.T.", is now 23. Last year, he told the Innocence Project that the rape never happened. He said other inmates wanted to set Cody up because they thought cooperating with authorities would earn them lighter sentences. "He just explained to us that he had been pressured into it. And he didn't really realize what all then would happen and what would come of it," McQuillan says.
R.T.'s recantation appears to confirm what the Marbles have been saying all along. Last year, armed with it, Cody's attorney filed a petition for post-conviction relief. They're asking the court to consider the new evidence and hold a new trial. R.T. will be subpoenaed to testify during an evidentiary hearing Feb. 1.
Jerry hopes he and his son will now have a chance to tell the story that didn't come out nine years ago.
"They told me to just confess to it"
Jerry Marble still beams when he talks about taking his four-year old son Cody deep-sea fishing off the coast of Long Island 23 years ago.
"He was into everything," Jerry says. "He was into martial arts, he was into, of course, snow skiing from the time he was two and a half years old, swimming lessons, waterskiing—you know, Cody was just always game."
Cody's mom, however, was subject to extreme mood swings, Jerry says. She took barbiturates and drank. Her borderline personality disorder got worse as Cody and his younger brother, Blaine, got older. "Blaine was only 7, Cody was 11," he continues, "when their perfect lives blew up."
On July 29, 1999, Toni Marble went into the garage of the family's South Hills home, in Missoula. She made sure the windows and doors were sealed, turned a car on and positioned herself next to the tailpipe. It was her fifth and final suicide attempt. Six months after Toni died, a court-ordered psychiatrist diagnosed Cody with post-traumatic stress disorder. He wouldn't go to school or stop using drugs.
In 2002, Cody left a 60-day wilderness treatment center in the Flathead Valley after six days. When law enforcement apprehended him, he tested positive for alcohol and drugs, again violating the terms of his probation. That landed him in the juvenile wing of the Missoula County Detention Facility.
R.T. was already there. Like the rest of the inmates, he had problems. According to records filed with the Marble case, R.T. first tried alcohol at 5 years old. He was arrested for assault at 9. At 11, he earned a fraud charge after trying to cash a counterfeit $20 bill that his mother brought home as a joke from her waitressing job.
R.T. was incarcerated after throwing an apple at his brother and swearing at a police officer. The 13-year-old was the youngest and smallest kid at the jail. Other inmates bullied him. They called the thin-limbed boy their "bitch."