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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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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