Editor’s note: This post is archived from the Montana Lowdown news blog of MTFP editor John S. Adams.

Late last year, I wrote about a story that Lee’s Mike Dennison has been following about a Missoula man who has fought for nearly a decade to overturn his rape conviction.

Settlement Law Justice Clip Art

Cody Marble, 27, was convicted in 2002 of raping a 13-year-old fellow inmate at the Missoula County Juvenile Detention Facility and sentenced to 20 years in prison. Marble adamantly denied the charges from the beginning and has insisted all along that he was set up by his fellow inmates.

Dennison reported last December that the victim, now in his 20s, admitted to investigators for the Montana Innocence Project that he made up his testimony. From Dennison’s piece:

In a statement filed Tuesday with Marble’s petition, the alleged victim, now 22, says he was not raped by Marble and that he was told by other teenagers held in the detention center to make up the story to frame Marble for the crime.

“I testified falsely against Cody Marble at the trial,” he said in his statement. “I thought by then that the story had gone too far and I could not go back. I never thought he would be found guilty or go to prison. … My hope now is to set the record straight.”

What was Missoula County Attorney Fred Van Valkenburg’s response to seeing the victim’s signed a statement recanting his 2002 testimony?

“It’s just one more thing that Cody Marble is trying to do to avoid responsibility for his case,” Van Valkenburg said. “We’re just going to have to deal with it.”

Dennison followed up on the story last week reporting that Van Valkenburg filed court documents saying that Marble has “no evidence” that could overturn his rape conviction because the victim has “repeatedly refused” to sign a sworn statement recanting his 2002 court testimony. The victim, by the way, is serving a sentence in Deer Lodge for having sex with an underage girl and is thus already under the thumb of the criminal justice system.

Now, according to the victim’s lawyer, Brett Schandelson of Missoula, the victim “has no desire to participate in Mr. Marble’s petition any further” and “will not answer questions put to him by either party.”

“He desires to be left alone and continue the good progress he has made at (prison) Boot Camp,” Schandelson wrote.

Could the reason his client doesn’t want to go on the record and say he lied in 2002 have something to do with his fear of being prosecuted for perjury, a crime punishable by up to 10 years in prison, and a $50,000 fine?

Marble has asked the court to grant the victim—who was 13 at the time of the alleged rape—immunity from perjury.

But according to Dennison’s report, Van Valkenburg opposed that request, saying:

…anyone who gave knowingly false testimony at a trial should not be shielded from prosecution.

“If prosecutorial immunity is given to those who perjure themselves, there is no guaranteeing the veracity of any future testimony,” Van Valkenburg said in court papers filed this week.

So if the victim comes forward and recants testimony he gave when he was 13 and says that the rape Cody Marble was convicted of never happened, he could face more prison time and a huge fine. But if he doesn’t recant, he serves out his sentence in Deer Lodge and goes on with his life while Cody Marble continues to be labeled as a sex offender. That’s the situation Van Valkenburg has set up by denying to give the victim prosecutorial immunity.

Van Valkenburg’s position really blows me away.  Here’s why:

In February 2006 I covered the high-profile trial of a man accused of raping a woman at a now-defunct popular nightclub in Missoula. Wilbert Fish was charged with sexual intercourse without consent, a felony, after police alleged they saw Fish with his hand down the pants of an unconscious 21-year-old woman.

However, video surveillance tapes shown to jurors forced arresting Missoula Police officers Ryan Ludemann and Duncan Crawford to admit on the stand that they had falsified the arrest report and gave false testimony during the trial. It also came out during that trial that Officer Ludemann has a history of lying while on the job. Ludemann once cited a woman for driving with a suspended license based on an accusation made by his own wife, despite the fact that he never actually saw the woman driving.  Driving with a suspended license carries a minimum of 48 hours in jail. Ludemann wrote in his official report that he saw the woman driving but that he “lost her in traffic.” He then lied to his superiors to try to cover up his lies. He admitted to all of that during the Fish trial.

After hearing that testimony and after watching video surveillance tapes that proved that Ludemann and Crawford were lying, it took the jury of four women and eight men less than two hours to find Fish not guilty of rape.

So does giving false testimony equal perjury?

According to Montana Code 45-7-201:

A person commits the offense of perjury if in any official proceeding he knowingly makes a false statement under oath or equivalent affirmation or swears or affirms the truth of a statement previously made, when the statement is material.

To my knowledge, neither officer Ludemann nor Crawford was ever charged with perjury for their testimony in the Fish trial, despite the fact that they both admitted to giving false statements under oath. I don’t know if they were officially reprimanded.

This brings me to my point. Van Valkenburg was willing to turn a blind eye to perjury when his own law enforcement officials are committing it in the name of securing a conviction. But if a man in his 20s wants to officially “set the record straight” about a lie he says he told when he was 13-years-old—and in the process clear the name of a man who may have been falsely convicted of rape—he should face 10 years in prison and a $50,000 fine?

Colin Stephens, Marble’s attorney, told Dennison that if the victim is given immunity, “he’ll certainly testify at any new hearing on Marble’s request to overturn his conviction.”

As Stephens points out in the article, “the question for the court is whether the jury would have convicted Marble if they knew the victim changed his testimony.”

Van Valkenburg dismissed the recantation obtained by the Innocence Project as: “the result of a non-objective, non-forensic, leading, goal-oriented ‘investigation’ by an organization whose mission it is to reverse jury convictions,” he argued.

It appears from his statements and actions that Missoula County Attorney Fred Van Valkenburg places a higher value on preserving convictions than serving justice.

John Adams began his professional career in 2001 in Idaho Falls, ID writing and editing for a variety of trade magazines. He covered topics ranging from potato and sugar beet farming to skate park and playground construction and maintenance. Adams started his newspaper career as the city government reporter for the Daily Jefferson County Union in Fort Atkinson, WI where he covered the City Hall, police, fire and local courthouse beats. In 2005 he joined the staff of the Missoula Independent in Missoula, MT where he worked as a staff reporter covering a wide range of issues including the environment,...

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