By MIKE DENNISON
HELENA — A Missoula man trying to get his 2002 rape conviction overturned said Wednesday he still has a solid legal case for a new trial, in spite of the alleged victim’s backtracking on an earlier statement that the rape never occurred.
Cody Marble, whose effort is being assisted by the Montana Innocence Project, said the changing story by the alleged victim — now 23 — throws doubt on the latter’s credibility.
“Such testimony only serves to bolster the argument that (the alleged victim) lies, and were this evidence to be presented to a new jury, there is reasonable probability that there would be a different result in Marble’s case,” wrote Marble’s attorney, Colin Stephens.
Marble, 27, was convicted in November 2002 of raping a fellow juvenile inmate at the Missoula County jail, when Marble was 17 and the alleged victim was 13.
Marble has maintained his innocence, saying the alleged victim and other inmates made up the story about a sexual assault to get back at him for perceived slights, or to attempt to get favorable treatment in their own criminal cases.
In July 2010, the alleged victim, who’s serving time at Montana State Prison for an unrelated rape conviction, gave Innocence Project officials a signed statement recanting his 2002 trial testimony that he’d been raped by Marble.
Yet three weeks ago, while being questioned under oath by Missoula County Attorney Fred Van Valkenburg, he took back that statement, said the rape did occur, and said that Innocence Project officials had “badgered” him into signing it.
Two weeks ago, prosecutors cited the turn-around as grounds to dismiss Marble’s petition for a new trial, saying he now has no evidence.
In his reply Wednesday, Marble’s attorney said a hearing on the petition should proceed before District Judge Douglas Harkin, and that the about-face by the alleged victim doesn’t necessarily damage Marble’s case.
For Marble to get a new trial, he must show that newly discovered evidence would lead a jury to reach a different conclusion, Stephens argued.
The “foundation” of his argument is that the alleged victim “was an unreliable and unbelievable witness at trial,” and his recent statements that he lied to the Innocence Project only bolster that argument, Stephens wrote.
“It is more than probable that a new jury, even in light of (the alleged victim’s recantation), would arrive at a different conclusion than the one at which the previous jury arrived,” he said.
Stephens also scoffed at the alleged victim’s allegations that Innocence Project officials badgered him into signing the statement that the rape never occurred or misled him about their intentions.
The Montana Innocence Project’s clinical director, Larry Mansch — who met with the alleged victim in prison several times — is a respected member of the Montana Bar, a lieutenant colonel in the Montana Army National Guard and would not risk violating fundamental rules of professional conduct, Stephens said.
Jessie McQuillan, executive director of the Montana Innocence Project, also has said that Van Valkenburg told the alleged victim three weeks ago that he could be charged with perjury if he changed his trial testimony — even though the victim had been granted immunity from prosecution for any statements in the hearing on Marble’s petition.
“In the face of official prosecution threats, it’s really not surprising that a young, incarcerated man hoping to be released would back away from the two written statements he voluntarily gave to us saying that the rape did not occur and that he had falsely testified as a 13-year-old boy,” she said.
She also said the Innocence Project and Mansch “absolutely did not pressure or coerce anyone in this case.”
Van Valkenburg’s office will file one last argument, after which Harkin will rule on whether to proceed with a hearing in the case.
via Missoula man says changing stories of alleged victim bolster his claim of innocence in rape case.
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