Judge orders defendant in juvenile jail rape case released

MISSOULA (AP) — A man convicted in a 2002 juvenile detention rape case has been released from a private prison in Shelby at the order of a state judge who is still considering a motion to dismiss the judgment.

Cody Marble was picked up at Crossroads Correctional Center by his father, Jerry Marble, Thursday afternoon.

“I’m elated,” Jerry Marble said earlier Thursday.

Retired District Judge Ed McLean ordered Marble released from prison two days after the Missoula County attorney filed a motion asking that the judgment against Marble be dismissed.

McLean said he likely will dismiss the judgment, but wanted to give the former county attorney a chance to respond to statements included in the motion.

County Attorney Kirsten Pabst, a Havre High School graduate, filed the motion Tuesday, saying the accuser and two other witnesses had recanted their testimony, that detention officers said the rape could not have happened and that the officers heard other kids were trying to set up Marble, who was 17 at the time. In the interest of justice, she said, the judgment should be dismissed.

The accuser, Robert Thomas, who died in Havre April 7 by shooting himself at the end of a 21-hour standoff with police, had recanted his testimony that Marble had raped him then withdrew his recanting.

Marble has consistently denied the charge. He was sentenced to 20 years in prison with 15 suspended. He also has drug possession convictions from 2008 and 2013, according to Department of Corrections records. The five-year sentence for the 2013 case was suspended.

Pabst’s motion suggested that former County Attorney Fred Van Valkenburg caused the accuser to renege on his July 2010 statement to the Montana Innocence Project that he had lied about the rape by threatening to prosecute him for perjury.

“We recognize that there may be people who will always insist that Marble is guilty, including people who are respected and informed members of our community,” Pabst wrote in her motion. “But we cannot allow personal opinions to sway us from our sworn duty to seek justice, not merely convict.”

McLean said in light of the statements, “professional courtesy and common decency” require the court to offer the former prosecutor a chance to comment. He said the statements attributed to Van Valkenburg — that he could file perjury charges — were an accurate reflection of state law.

Van Valkenburg said he may want to file something, but he wanted to gather more information. He has 21 days to file a response with the court.

McLean directed the Department of Corrections to release Marble from the Crossroads Correctional Center for any sentence he is serving due to the rape conviction.

The Montana Innocence Project “remains hopeful and confident that in the near future Cody Marble will be completely exonerated, and justice will then be done,” project legal director Larry Mansch said in a statement.