On trial: Montana man seeking compensation after conviction overturned (2024)

MISSOULA — Cody Marble's rape conviction was overturned roughly seven years ago, but the trial to officially establish his innocence began this week.

Marble, 39, is the plaintiff in a civil case against Missoula County, where he was charged, prosecuted and convicted by a jury of raping another boy in the juvenile detention center when he was 17. The 2017 dismissal of that conviction is one of the highest-profile cases won by the Montana Innocence Project, in part because Marble has remained activein the advocacy work to secure compensation for the wrongfully convicted.

Rather than a typical lawsuit that follows overturned convictions in which someone seeks damages against the government for the flawed proceedings that imprisoned them, Marble is attempting to secure a compensation package approved by the 2021 Legislature for those who have been wrongfully convicted. The state is also a defendant in the case.

The 12-person jury selected Monday won't determine the dollar figure Marble is owed. In the civil case that's arranged like a reverse criminal case, Marble's attorneys are now seeking a jury's affirming verdict that he is innocent of the crime, with the government on defense.

Former county attorneys Kirsten Pabst and Fred Van Valkenburg are both listed as witnesses expected to testify. University of Montana Chief of Police Brad Giffin, in 2002 a detective with the sheriff's office, was one of Tuesday's first witnesses to describe the initial investigation into Marble.

Marble is also expected to testify.

This case will go down as one of a kind: Marble was also the only person to submit a claim for that compensation before the lawexpired last yearwhen the Legislature and the governor ultimately failed to resolve that compensation arrangement between the state and the counties.

Complicated compensation

The law passed in 2021 required claimants to have a "proffer establishing actual innocence," something that could be achieved through DNA evidence proving someone else committed the crime.

In Marble's case, there was no DNA evidence collected, but the conviction fell apart after the alleged victim recanted. Marble's accuser, Robert Thomas, later reversed his recantation while allegedly under threat of being charged with perjury. But Thomas has since died, leaving the matter in some uncertainty. In early 2017 a district court judge said the evidence unearthed by the Montana Innocence Project undermined the integrity of Marble's conviction, and ordered a new trial. The Missoula County attorney's office that year agreed to not pursue a second prosecution, leaving Marble a free man.

As Marble sought damages against the government for his years spent in prison, the Innocence Project helped shepherd the 2021 law through the Legislature with wide bipartisan support. Initially, the bill would have required the state to pay out the compensation— $60,000 per year the claimant spent in prison and $25,000 for each year on probation or parole. Gov. Greg Gianforte vowed to veto that bill, however, unless the counties were required to pay 75% of the compensation claim. Advocates were hesitant when lawmakers approved Gianforte's changes, worried counties would fight those claims, resulting in the same legal disputes the law sought to avoid.

Indeed: Marble's entire case, from 2002 through the post-conviction proceedings, are now back on trial. Missoula County's attorneys contend no one ever labeled Marble an innocent man, but with a deceased victim, scattered witnesses and a full plate of current prosecutions, the rational decision was to leave the case unresolved.

That dynamic was up front in opening statements Monday following jury selection.

"Now that it's about money, they are now claiming Cody raped Robert Thomas," Marble's attorney Ben Snipes told the jury. "You will examine the details of these stories.… Truth will find its way to the surface."

Andrew Huppert, representing Missoula County, worked to assure the jury, sitting in the same courtroom where another jury unanimously convicted Marble 12 years earlier, that their predecessors were not deceived.

"There's another side to (Marble's) story, and it is a profound side," Huppert said to the jury Monday. "I think this story needs to be told. The Innocence Project needs to be brought to task. The county attorneys have some explaining to do."

Plaintiffs bring their case

Tracy Addyman, a juvenile detention officer, was first to testify Tuesday morning as the initial person to receive the allegation that Marble had raped Thomas. Marble was essentially a cooperative inmate there, she said, and more troublesome kids seemed to be annoyed with him.

On March 16, 2002, another inmate told Addyman a rape that happened in the pod of cells there six days earlier. Addyman testified that she never noticed a change in behavior among the pod of boys in jail, and suspected Marble was being set up.

"I was like, 'No way. No way,'" she said. "It felt like they were lying to me."

The defense attorneys sought to poke holes in Addyman's credibility as a part-time employee at the juvenile detention center. Additionally, they noted she never raised those concerns to investigators at the time of the investigation.

Giffin, the sheriff's office detective at the time, was asked about the reports he produced in the investigation and his own statements in the legal proceedings that followed. Snipes, one of Marble's attorneys, tried indicating that Giffin had led some of the witnesses to certain answers and overlooked a few inconsistencies. Giffin noted 22 years ago is a deep well to reach into for certain details.

Steve Carey, a defense lawyer for the county, asked Giffin to read out his resume and experience as a law enforcement officer, implying for the jury that the investigative procedures were sound.

Marble's attorneys next called Jessie Schandelson, who founded and led the Montana Innocence Project at the time of Marble's post-conviction proceedings. A letter from Marble and conversations with other people involved ultimately led them to Thomas, who was in prison and recanted the allegation against Marble.

"After we had obtained these statements from Mr. Thomas and after we obtained some other important information in the case, we thought there was enough… to move forward with requesting a new trial," Schandelson testified.

But near the end of their meeting in 2010, Thomas shifted,Schandelsonsaid, seemingly unnerved about the prospect of new charges for lying under oath.

Defense attorneys have seized on Thomas' waffling statements, as well as a memo Schandelson generated after the meeting but never produced or spoke about until the current case. In a sometimes-tense cross examination, Huppert repeatedly grilledSchandelson on why she never recorded the interviews with Thomas.

"I wish we would have at this point because it would have backed up what I tried to explain today and it would make it harder to twist our words," Schandelson jabbed at Huppert.

"I think we all agree it would have been nice to have recorded those interviews," Huppert jabbed back.

Still, Innocence Project staff returned for two more meetings with Thomas, who ultimately hand-wrote two statements claiming the rape never occurred. Later, in the interest of protecting Thomas' rights in the upcoming proceedings to overturn Marble's conviction, the Innocence Project coordinated another attorney to represent him. After that, Thomas reversed his recantation and quit cooperating with the case. He died by suicide in 2014.

The plaintiff's case will continue Wednesday morning in Missoula County District Court before Judge Shane Vannatta. The trial is scheduled to run through May 21.