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Cody Marble

Other Montana Cases
On March 12, 2002, 17-year-old Cody Marble was released on bond from the County Juvenile Detention Center in Missoula, Montana, where he had spent five months after walking away from a youth drug treatment program the previous year.

Four days later, sheriff’s deputies arrested Marble on a charge of raping 13-year-old Robert Thomas, who also was being held in the detention center, in a shower on March 10—two days before Marble’s release.

Marble rejected a prosecution offer to plead guilty in return for probation and went to trial in Missoula County District Court in November 2002.

Thomas testified that Marble raped him. Two other inmates testified that they saw Marble rape Thomas. Nicholas Melton-Roberts, who had initially said he saw the rape, testified that he wasn’t sure it happened. The prosecution then called Corrina Marry, another inmate, who testified that Melton-Roberts told her that he saw the rape.
The first inmate to report the rape to guards, Scott Kruse, did not testify. By the time of trial, investigators discovered that he was actually in lockdown at the time of the alleged rape and could not have witnessed it. Kruse was in detention on a charge of assisting in the murder of a homeless man. That charge was later reduced to a misdemeanor and he was released. When Marble's attorneys sought to call him as a witness at the trial, Kruse could not be found.

Marble denied the assault, but on November 22, 2002, after a three-day trial, the jury convicted him of sexual intercourse without consent. He was sentenced to 20 years in prison with all but the first five years suspended.

He was released on parole in January 2005, but was sent back to prison for violating parole in June 2005 for drug use. Over the next decade, Marble was released on parole four more times and each time he was sent back to prison because he was caught using or possessing drugs.

Though Marble admitted he had a drug problem, he consistently asserted he was innocent of the rape. Over time, evidence of his innocence began to accumulate.

In 2008, a guard at the detention center said she believed that nothing had happened on the day of the alleged rape. Two of the counselors who treated Marble, who was required as a condition of his sentence to attend sex offender counseling, said they believed that Marble was innocent.

In 2009, Marble wrote to the Montana Innocence Project requesting help because he had heard rumors that Thomas, who had been imprisoned after being convicted of rape, was telling other inmates that Marble was innocent and that no rape had occurred in the shower.

In 2009 and 2010, Larry Mansch, attorney for the Montana Innocence Project, and Jesse McQuillan, then the director of the Montana Innocence Project, conducted several interviews with Thomas. In every interview, Thomas verbally recanted his testimony. In July 2010, Thomas wrote a recantation that said other youths in the detention center forced him to falsely accuse Marble of the rape. Thomas said that having been convicted of a sex crime himself, he understood the gravity of his false accusation.

“I want to come out and let it be know[n],” Thomas wrote. “I’m coming forward now because I’m in prison on a sex crime and know what it is like. So I don’t want him to be charged with one when innocent. When I was in (the detention center), I was youngest & smallest and I was pressured into going along with it.” Thomas later signed a more detailed statement prepared by Mansch.

During a re-investigation, Corrina Marry, who testified at the trial that inmate Melton-Roberts told her he saw the rape, also recanted her testimony, admitting she lied at the trial.

In December 2010, a post-conviction petition seeking a new trial for Marble was filed and Missoula County District Judge Douglas Harkin ordered that Thomas be interviewed under oath. At the deposition, Thomas recanted his recantation and said he had been raped. Thomas testified at a hearing on the petition in October 2012 that he had been raped and he had falsely recanted. In November 2013, Judge Harkin denied the petition.

In April 2014, while Harkin’s ruling was being appealed, Thomas, who had been released from prison on parole, committed suicide during a standoff with police in Havre, Montana.

In August 2015, the Montana Supreme Court reversed Judge Harkin’s ruling and sent the case back to Missoula County District Court. The court ruled that Harkin had applied the wrong legal standard in denying Marble’s post-conviction petition and that a broader standard should be applied.

In April 2016, Missoula County Attorney Kirsten Pabst filed a motion to dismiss the case, citing Thomas’s numerous recantations as well as recantations by two witnesses who testified at Marble’s trial.

Pabst said that she filed the motion to dismiss following “an extensive review of thousands of pages of documents, spanning 14 years, including initial investigative reports and depositions, trial transcripts, appeal records, post-conviction litigation documents and recent witness interviews.”

“After weighty consideration, I have concluded that Marble’s (conviction) lacks integrity and in the interests of doing justice, it must be dismissed,” Pabst declared.

In the motion, Pabst noted that Thomas had recanted to the Montana Innocence Project and that although Thomas later recanted the recantation, it was only after then-Missoula County Attorney Fred Van Valkenburg told him that if he strayed from his original testimony, "I will in fact prosecute you for perjury.”

The motion—and particularly the reference to Van Valkenburg—triggered a legal drama that lasted nearly eight months. Although Missoula County District Court Judge Ed McLean ordered Marble released on April 21, 2016, McLean did not agree to dismiss the case. Instead, McLean asked Van Valkenburg, who was the County Attorney when Marble was convicted but was no longer in office, to offer an opinion on whether the charges against Marble should be dismissed.

During a hearing in December 2016, Van Valkenburg testified that he still believed Marble was guilty. He denied that he threatened Thomas, saying he “simply made an accurate statement of the law.” Van Valkenburg claimed that McLean had no authority to dismiss the case.

On January 3, 2017, Judge McLean vacated Marble’s conviction and ordered a new trial. McLean ruled that the Thomas’s recantations as well as the “evidence as a whole undermines the confidence the Court has in Mr. Marble’s criminal conviction.” Pabst immediately filed a motion to dismiss the case and on January 6, Judge McLean signed the dismissal order.

In January 2019, Marble filed suit in state court in Montana against Missoula County and several law-enforcement officers, seeking damages for his wrongful conviction. In September 2021, he became the first person in Montana to file for state compensation under a new law, enacted in July 2021. The law requires claimants to abandon any litigation before proceeding. In February 2022, the state department of corrections gave Marble a $5,000 transition assistance grant required by the compensation law.

– Maurice Possley

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Posting Date: 1/8/2017
Last Updated: 2/3/2022
Most Serious Crime:Child Sex Abuse
Additional Convictions:
Reported Crime Date:2002
Sentence:5 years
Age at the date of reported crime:17
Contributing Factors:Perjury or False Accusation
Did DNA evidence contribute to the exoneration?:No