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.

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.

click to enlarge Jerry Marble says his son Cody loved football when he was a kid. - PHOTO BY CHAD HARDER

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."

click to enlarge Cody Marble in prison khakis - PHOTO COURTESY OF JERRY MARBLE

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."

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."

In 2007, law enforcement found Cody in a Missoula hotel room with a scale, cooking spoons and syringes. He was looking at pornography. He later pleaded guilty to felony meth possession. "I give up hope sometimes and do stupid stuff," he says.

Nearly all the other boys Cody was incarcerated with in 2002 have died or are in jail.

Cody's alleged victim, R.T., is in Department of Corrections custody. He was found guilty in 2003 of having intercourse with a 12-year old girl. At the time, R.T. was 17. He declined an interview request from the Independent. His attorney, Brett Schandelson, declined to comment for this article.

click to enlarge Diagram of Pod C in the Missoula County Detention Facility juvenile wing - ILLUSTRATION BY JONATHAN MARQUIS

Cody's attorney, Colin Stephens, says R.T. will be subpoenaed to testify at the upcoming evidentiary hearing. Even with R.T.'s written recantation, however, it remains unclear what he'll say in front of a judge. "That's the million-dollar question," Stephens says.

How good is your snitch?

"Snitch" is the word commonly used for a jailhouse informant. Sometimes a snitch will falsely accuses other inmates to earn favor with authorities. According to the Center on Wrongful Convictions, almost half—45.9 percent—of more than 100 now-exonerated death row inmates were convicted wholly or in part by snitch testimony.

"These type of statements—false statements—play a huge role in wrongfully convicted youth," says Josh Tepfer, a staff attorney at Northwestern University's Center on Wrongful Convictions of Youth. "There's no question that an overreliance on snitch testimony that can't be corroborated has played a role in many cases of wrongful conviction."

In the last three decades, armed with new advances in DNA testing, organizations like the Center on Wrongful Convictions, in conjunction with a network of more than 60 organizations dedicated to freeing the wrongly convicted, have worked to unravel hundreds of cases on behalf of people who lack the power and resources to take on the criminal justice system.

In 1992, the Benjamin N. Cardozo School of Law in New York City launched the first Innocence Project. The program was unique at the time, largely because it put law students to work in a nonprofit clinic setting. Fledgling attorneys filed post-conviction appeals, conducted interviews and tracked down witnesses. That model is now used in journalism, law and criminology programs across the country, including the Montana Innocence Project.

In the late '90s, the Medill Innocence Project at Northwestern University started a program through the school's journalism department in which students began investigating wrongful convictions. Since then, Medill students have helped free 12 prisoners, including five who were on death row.

Medill students played a prominent role in clearing Anthony Porter, a mentally retarded black man who came within two days of being executed in 1998. A stay issued by the Illinois Supreme Court to evaluate Porter's mental capacity bought enough time for the journalism students to dig up evidence that eventually cleared Porter of a double murder conviction.

In 2000, Medill investigations and the resulting high-profile exonerations prompted Illinois Gov. George Ryan to put a moratorium on the state's death penalty. In 2003, Ryan commuted the death sentences of more than 160 Illinois Department of Corrections inmates to life in prison. "A system that depends on young journalism students is flawed," Ryan said at the time.

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

Innocence groups, combined with new advances in DNA evidence, have helped exonerate 280 people; other types of evidence have cleared hundreds of others. Prosecutors, however, often aren't keen on letting their convictions be overturned. In Illinois, where the Medill Innocence Project shook Gov. Ryan nearly a decade ago, the state's attorney general accused Innocence Project Director and veteran journalism professor David Protess and his students of using ethically questionable methods to conduct investigations.

According to The New York Times, "In November 2006, one of Mr. Protess's students identified herself as a census worker while trying to find a witness. In 2009, another student posed as a worker for the power company. In both cases, Mr. Protess says he didn't know about the tactics in advance but has no professional issue with them."

Protess denied additional claims from the Illinois attorney general that said he tried to cover up wrongdoing. "I have spent three decades exposing wrongful conviction only to find myself in the crosshairs of others who are wrongfully accusing me," he told The Times. Protess retired in June after 30 years teaching journalism at Northwestern. He now oversees the Chicago Innocence Project.

In Montana in 1997, DNA evidence along with advocacy from the New York-based Innocence Project helped to exonerate Chester Bauer of rape and assault. Jimmy Ray Bromgard was cleared of a rape charge five years later. And Paul Kordonowy, who was convicted of sexual intercourse without consent and aggravated burglary, was exonerated in 2003. All of the men were convicted in part by testimony from former Montana State Crime Lab director Arnold Melnikoff.

More recently, convicted killer Barry Beach was released without bail on Dec. 7 after a Montana district judge found information presented during an evidentiary hearing earlier this year compelling enough to warrant a new trial. Beach was convicted for the 1979 murder of teenager Kim Nees on the Fort Peck Indian Reservation. He was apprehended in Louisiana and confessed to the crime. He also claimed responsibility for three killings in Louisiana.

Louisiana authorities found Beach's admission to the crimes in their state unfounded. It quickly became clear that he wasn't even in the state when the killings happened. In Montana, none of the physical evidence at Kim Nees' murder scene linked Beach to her death, and he's maintained his innocence for decades. Testimony introduced during his evidentiary hearing this year suggests that a group of women, led by a jealous ringleader who was upset that Nees was dating the father of her child, is responsible for the crime.

Within hours of Beach's release from prison, the Montana Attorney General's Office released a statement indicating that it will not let the 49-year-old go free without a fight. "We have an obligation to defend a murder conviction rendered by a Montana jury against a man who confessed to the most serious of crimes," said state prosecutor Brant Light. "This is one more step in a lengthy legal process and the final word has not been spoken."

It's common for prosecutors to resist attempts to overturn convictions, says Northwestern University's Tepfer. "There's a general feeling from prosecutors: They don't want do-overs. They don't want the integrity of the conviction questioned. Nobody likes to admit they're wrong. We've seen cases all over the country, from here, in Chicago, other places, that prosecutors have been resistant to vacating convictions even where DNA evidence in a rape case or a rape-murder case has pointed to other people or excluded the defendant after the fact. And DNA is a gold standard of evidence."

So perhaps it's not surprising that Missoula County Prosecutor Fred Van Valkenburg isn't keen on allowing R.T.'s recantation into the record for the Marble case. He says in court filings that the recantation is the product of "non-objective, non-forensic, leading, goal-oriented 'investigation' by an organization whose mission it is to reverse jury convictions."

Van Valkenburg says that since 2002, R.T. has repeatedly told prison staff that Cody raped him, most recently during a mental health screening on July 13, 2010, seven days before his recantation. Additionally, says Van Valkenburg, the Montana Innocence Project contacted R.T. in person four times while he was in custody, without an attorney there to represent him. And, he points out, R.T. recanted only after he and Cody were incarcerated in Deer Lodge together, leaving an opportune time for Cody or jailhouse allies to encourage him to change his story.

Van Valkenburg's job is to protect victims. A veteran prosecutor, he knows all too well that the abused can have a hard time holding people who hurt them accountable. Recantations are inherently unreliable, he says, and that's particularly true when the one who's changing his story is incarcerated.

What's more, says Van Valkenburg, Innocence Project investigators don't necessarily follow law enforcement protocols, like recording interviews. "The manner in which the questions are asked is not the same way that good police investigations are conducted. It lends itself then to the greater possibility of somebody telling the questioner what the questioner wants to hear."

Two miles east of Van Valkenburg's Missoula County Courthouse office, white boxes labeled with black ink are piled high in the offices of the Montana Innocence Project, in a corner of the University of Montana Law School. Each box is labeled with the name of someone who says they didn't commit the crime they were convicted of.

"The vast majority of people, we discover through our investigation, are not innocent, and we close our case," Innocence Project Director Jessie McQuillan says. "Almost all of our cases we close for that reason."

The Montana Innocence Project has reviewed 300 cases since its 2008 inception. Cody Marble's is the first Montana Innocence Project investigation that has uncovered evidence that will be used in court.

click to enlarge Montana Innocence Project Executive Director Jessie McQuillan says the case against Cody Marble doesn’t add up. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Montana Innocence Project Executive Director Jessie McQuillan says the case against Cody Marble doesn’t add up.

McQuillan takes issue with Van Valkenburg's characterization of the Montana Innocence Project as an organization with a mission to overturn jury convictions. She points to the hundreds exonerated by work from groups like hers. "What we've seen over and over again," she says, "is that it takes somebody who is outside the justice system, somebody coming from a different perspective than just the law enforcement or prosecutor or defense office, to shine a new light or bring forward information that fell through the cracks."

McQuillan adds that if Van Valkenburg is concerned about the credibility of R.T.'s testimony because he's an inmate, the Missoula County Prosecutor's Office should have raised that red flag years ago—"because all of the information, all of the witnesses were inmates," she says. "If you're going to question the reliability of inmate testimony, then that should have happened before this case ever came to trial."

And away we go

Jerry Marble lives in a central Missoula apartment building now that he calls "a rathole." He's spent hundreds of thousands of dollars on Cody's defense, on phone calls from the prison and on bailing his son out. He declared bankruptcy in 2005. "I have spent everything that I had, then a whole bunch trying to save him," he says.

One night, Jerry's upstairs neighbor started pounding on a newly erected drum-set. Irritated, Marble grabbed a cane and banged on the ceiling. Jerry got into a yelling match with the guy, he says. "He said, 'Fuck you, fucking chomo.' Do you know what 'chomo' is? 'Chomo' is DOC/prison slang for child molester."

Cody had used Jerry's Missoula address to register as a sex offender. The neighbor apparently thought Jerry was Cody.

That's typical of the kind of stuff his son is forced to deal with, Jerry says.

These days, Jerry regularly checks the jail roster. It helps him keep track of the men who accused his son. He goes to the trials of people accused of sex crimes. He fumes at perceived injustice and cheers when the wrongly convicted are exonerated. He's been accused of being overzealous, of harassing the people involved with Cody's case. He won't apologize, and he says he has no intention of going away. "I hope I make these people nervous enough that they will pay attention."

He bristles when asked if he's "obsessed." What else are you going to do? he asks. Are you going to abandon your kid?

He still envisions Cody building a life outside of sex-offender registration and his addictions, Jerry says. He wants his son to travel, maybe attend law school.

Cody isn't sold on his plan yet. They were talking recently, Jerry says, when Cody told him, "There's this beach between Copacabana and Ipanema [in Brazil]. After I'm exonerated, that's where I'll be. So if there's a law school on that beach, I'll try to get into it."

Says Jerry, "Well, guess what I found? There's a law school on that beach."

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