Did Cody do it? 

In 2002, when he was in his teens, Cody Marble was labeled a sex criminal. His dad's still fighting for his release.

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Juvenile inmates are housed in pods, with a common area that branches off into four cells. Each cell has two bunks. A shower is not far from the pod's front door.

Several boys sat in Pod C's common area on Sunday March 10, 2002. They were supposed to be cleaning their cells.

The first inmate to accuse Cody of rape, S.K., said he saw the crime. He admitted before Cody's trial, however, that he was in lockdown when the alleged offense happened and couldn't have witnessed it.

S.K. was incarcerated for felony accountability to deliberate homicide for his role with two older men in the beating death of a Missoula transient at an abandoned mill site. Several inmates said they'd heard talk of staging a set-up to help S.K. get a deal on his sentence.

Another inmate, "R.M.", told Missoula County Sheriff's Deputy Brad Giffin that Cody had oral sex with R.T. in the shower. According to depositions taken by Cody's defense attorney, when Giffin asked if R.M. meant anal sex, the teenager said yes, he'd mixed the two up.

R.T. said the older boys persuaded him to go into the shower with Cody as a joke. They promised him candy and chips from the commissary in exchange. Once he and Cody were in the shower, R.T. testified, Cody told him to pull his pants down. That's when Cody raped him. "Cody said that I had to do it or I'd regret it," R.T. told police. "And that if I tell, that I won't get commissary, and I'll still regret it."

Jerry bailed Cody out of the Detention Center three days after the alleged incident, on March 13. He and Cody were home in the South Hills March 16 when a Missoula County Sherriff's Department deputy called to say Cody should step outside.

"They said the inmates at that jail said I committed a crime a week prior," Cody recalls. "They were being so vague that I didn't really understand what they were talking about. I thought they were talking about a fight."

click to enlarge Jerry, Blaine and Cody Marble - PHOTO COURTESY OF JERRY MARBLE

On that spring day, the deputy handcuffed the teenager and took him downtown to be interrogated. "When I finally realized that they were alleging that I committed a rape in the shower, I was just in disbelief," Cody says. "They told me to just confess to it. They would take me back home. That it's okay, that these things happen all the time. I told them they're crazy, that something like that is not okay."

R.T. made a compelling victim. At the trial, which took place eight months after the alleged crime occurred, four other inmates also said Cody committed the crime.

The trial was rushed, Jerry says. There wasn't enough time to present all the evidence. Look, he says, pulling out one of the thick binders that hold more than 800 pages of transcripts from Cody's trial: The judge even offered to declare a mistrial when Cody's attorney, Kathleen Foley, said she needed more time to present her case.

"Cody has a constitutional right to present a defense," Foley told the judge. "And he can't do that in six hours."

Judge Harkin replied, "I know that. I have given you the time you asked for. If you cannot present your case in that period of time, I'll declare a mistrial, and we'll set it for a time that is more appropriate—your call."

In 2007, Harkin dismissed an attempt by Cody to have his conviction revisited on the basis of inadequate counsel. In a recent interview with the Independent, Foley said that the defense presented its entire case. "There was no time issue," she said. "The judge did not pull the plug."

Detention center guards testified that they didn't believe there was adequate time between cell checks for the rape to occur. Susan Latimer was on duty that night. She recalled entering the pod at 9:54—12 minutes after the previous cell check—when she found R.T. on the toilet and Cody and another inmate, "N.M.R.", in the common area. They seemed tense, she said. When she asked what was going on, she said, they told her they were arguing about what to watch on TV.

Latimer, who was a prosecution witness, told the Independent in a recent interview that she was never asked on the stand if she thought Cody was guilty.

She didn't, she says. And she was horrified when the jury's verdict came in. "I left it going, 'Man, we can railroad anybody into jail for life if this is how it works."

Cody was so sure of the outcome that he had his bags packed and was ready to go home. "You watch TV your whole life," he says, "and you think they've got to have evidence to convict you of something."



The million-dollar question

While incarcerated at the Montana State Prison in Deer Lodge, Cody studied law on the clunky prison library computer. He could only reserve it for half an hour at a time, so his legal education came slowly. The kid who didn't graduate from high school and earned his equivalency diploma while in a residential treatment facility started writing his own court briefs. He filed pro se and represented himself in court. There really wasn't any other option, he says. Resources ran dry. "You're on your own at that point."

When Cody was released from prison, his parole conditions forbade travel, alcohol consumption, gambling or pornography. The worst requirement was a lifetime of sex offender registration. The Department of Corrections put him in Tier III, meaning violent and predatory.

Clinical psychologist Michael Scolatti testified on Cody's behalf during a tier-reduction proceeding in 2009. Scolatti, who has treated more than 1,000 sex offenders, said Cody never fit the sexual predator mold. A judge in 2009 re-designated Cody a Tier-I sex offender, the lowest level, indicating he's unlikely to offend.

Despite the fact that Cody is now considered less of a threat, being branded a sex offender makes it challenging just to do things that most people take for granted. "It just consumes my whole life," he says. "It's miserable. Anytime I get a job anywhere, anytime I move anywhere, it's in the paper... I'm innocent. And I feel like these people have stolen my life from me."

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