Vetoes complicate compensation claim for wrongful convictions

Cody Marble, who fought 14 years to overturn his 2002 conviction for a Missoula jailhouse rape he says never happened, is the only person who has filed for payment under a state law to compensate the wrongfully convicted.

But his road to a potential $758,000 award has been made rockier by a pair of vetoes from Gov. Greg Gianforte — including one this May that caused the law to expire.

“That just kind of came out of nowhere,” Marble said of the vetoes. “With the compensation bill and the support that came with it, I thought we were moving forward. … I just feel like now we’re moving backwards again.”

Despite the June 30 expiration of the compensation law, Marble’s claim is proceeding, with a trial scheduled for October in state district court in Missoula. 

Attorneys involved in the case said they believe the expired law still applies, because Marble filed his request while it was in effect. A court has not ruled or been asked whether the law still applies.

Under that law, Marble must prove by “a preponderance of the evidence” that he didn’t commit the crime for which he was convicted — even though the rape charge was dismissed in 2017 after Missoula County’s top prosecutor said a re-investigation of the case showed Marble was likely innocent. 

The Legislature passed the compensation law, House Bill 92, in 2021 and tried this year to modify and extend it with House Bill 423. In both cases, Gianforte’s vetoes have made a crucial change in the bills: Putting most of the payment burden on the county that initially prosecuted any wrongfully convicted claimant, instead of solely the state.

That change has made Marble’s effort more difficult. 

The Gianforte vetoes made Missoula County responsible for 75% of the costs of Marble’s claim, or potentially $560,000, and the county is fighting tooth-and-nail against paying it.

The county whose prosecutor declared Marble innocent in 2016 is now preparing to argue in court that Marble did commit the rape for which he was convicted.

“The same governmental entities who had acknowledged the wrongful nature of Marble’s conviction and worked to vindicate him persist in arguing that he actually did rape [the alleged victim], in order to avoid paying the mandated compensation,” Marble’s lawyers said in documents filed this month.

Steve Carey, a Missoula attorney representing the county, said Marble was never legally exonerated, and that the decision by the county prosecutor not to refile charges after their dismissal in 2017 is not a “finding of innocence.”

The county has hired two prison-rape experts who say the actions of the alleged victim, Robert Thomas, indicate he was raped by Marble in 2002. Marble’s legal team is trying to exclude that testimony as speculation. 

Thomas can’t testify because he fatally shot himself during a standoff with police in Havre in 2014. In 2010, Thomas recanted his trial testimony that he was raped — but then took back his recantation after facing possible prosecution for perjury. 

Marble, now 39, was 18 years old when a Missoula district court jury convicted him of raping Thomas at the Missoula County juvenile detention center in 2002.

Marble, who now lives in Great Falls, has always denied that any rape occurred, saying fellow inmates concocted the tale because they were mad at him for perceived slights or imagined they might get better treatment from prosecutors for unrelated crimes. 

The Montana Innocence Project took up Marble’s case in 2009, but it wasn’t until 2017 that the rape charge was finally dismissed, after numerous court filings and orders, including a Montana Supreme Court decision that revived his effort. 

He spent nearly 10 and a half years in prison and another four and a half years on probation or parole from the time he was convicted until the charge was dismissed in 2017. 

The compensation law says a successful claimant can receive $60,000 for every year he or she is in prison and $25,000 for every year they’re on probation or parole as a result of the wrongful conviction. It also says the claimant can get $25,000 for legal fees incurred during the process, two years of state college tuition, and one year of state medical insurance. 

Marble said that while the county prosecuted him, the state technically charged him — as it does in all state criminal cases in Montana — and therefore should be the liable party for any compensation.

A lead proponent of changing the bills to make counties largely responsible for compensation has been Rep. Bill Mercer, a Billings Republican and former federal prosecutor. He supported the Gianforte vetoes and argued that counties prosecute criminal cases, not the state, and therefore counties should be held partly responsible for any mistakes that are made.

During House floor debate on the change in March, Rep. Jennifer Carlson, R-Manhattan, argued against it, saying it was nothing more than a hindrance to wrongfully convicted Montanans receiving compensation.

This year, the Legislature passed a bill that made the state liable for any payment, taking the counties out of the equation. The bill also extended the compensation program past June 30, when it had been set to expire. 

Gianforte responded in April with an amendatory veto, putting the counties back on the hook for 75% of any successful claim. 

But before the state Senate could vote on Gianforte’s proposed changes, it adjourned May 2, ending the session. The bill went back to Gianforte, who could sign it into law, without his proposed changes, or veto it outright. 

He vetoed it May 12. A post-session attempt to override Gianforte’s veto fell 15 votes short in the 100-member House and one vote short in the 50-member Senate.

Those final actions left counties responsible for 75% of a successful claim, and maintained language that expired the compensation law effective June 30. Thus, no other wrongful-conviction compensation claims can be filed in Montana — unless the Legislature acts in the future.