This story was originally published by The Pulp, and may not be republished without the express consent of The Pulp.
Last month, more than seven years after Montana District Court Judge Ed McLean effectively overturned the conviction of Cody Marble, who was found guilty in 2002 at the age of 17 of raping a 13-year-old boy while in juvenile detention in Missoula, the retired judge signed an affidavit stating it’s now clear he was deceived.
Missoula County Attorney Kirsten Pabst — who in 2016 filed the motion to dismiss the judgment against Marble that McLean granted — also now states she was misled, writing in an affidavit that “newly revealed information” relating to the alleged victim recanting his testimony “negates Marble’s current claim of ‘actual innocence.’”
Their reversals are a remarkable development in an ongoing civil suit Marble, who spent more than 10 years in prison, filed against Missoula County and the state of Montana in the fall of 2021 claiming wrongful conviction. The case is the first filed under a law the Montana Legislature passed earlier that year to compensate individuals absolved of their crimes. If he prevails, Marble would be due $758,000 — with Missoula County on the hook for 75% of the damages.
But instead of providing a measure of vindication, Marble’s suit is only reviving the question of his guilt — and this high-profile legal saga — 22 years after he was charged with raping Robert Thomas in the showers in the juvenile wing of the Missoula County Detention Center on March 10, 2002, while the two teens were incarcerated there.
Marble’s suit claims Missoula County wrongfully convicted him. And that means the private attorneys at Carey Law Firm representing the county are tasked with defending the conduct of the county employees who were involved in charging and convicting Marble more than two decades ago. As part of their aggressive defense, the county’s attorneys are sharply rebuking the Montana Innocence Project, the nonprofit that took up Marble’s conviction in 2009 and won his freedom with Judge McLean’s order in January 2017.
Back then, in 2017, the dismissal of Marble’s case served as an early, hard-fought victory for the organization, which is housed in the University of Montana law school and works to exonerate the innocent and prevent wrongful convictions. As a May trial draws near, the county’s attorneys argue that the Montana Innocence Project mischaracterized the alleged victim’s recantation that was the very basis for vacating Marble’s conviction and declining to prosecute a new trial. And they’re supporting that claim with the “newly revealed information” McLean and Pabst cited in their recent affidavits.
One of many reasons this case is so complicated is that this “newly revealed information” is not, in fact, new. It’s contained in a memo written in 2010 by the former director and co-founder of the Montana Innocence Project, Jessie McQuillan (now Schandelson). She and the Innocence Project’s former legal director, Larry Mansch, met with Robert Thomas, the alleged victim, four times in late 2009 and 2010. At that point, Thomas had been convicted of a sex crime himself. During those meetings, Thomas recanted his 2002 trial testimony, and he eventually signed a statement saying he was not raped by Marble.
“Eight or so years ago when I was 13 at Missoula County Juvenile Detention Facility I was sitting at a table in the dayroom,” Thomas wrote in his initial recantation. “There were three other people at the table. They told me to say that Cody Marble raped me. But this did not happen. And now today I want to come out and let it be known. 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.”
But Thomas also recanted his recantation on a couple of occasions. During one of those four meetings with the Innocence Project, in April 2010, Thomas said, “Yeah, it happened,” according to Schandelson’s notes.
It was part of a pattern. When the issue of perjury came up, Thomas backpedaled. One of these instances occurred in 2012, after Marble petitioned for a new trial, when former Missoula County Attorney Fred Van Valkenburg threatened to prosecute Thomas for perjury if he recanted his trial testimony.
Schandelson’s notes, including Thomas’ “Yeah, it happened” quote, became the memo that now, 14 years later, Missoula County’s defense team has seized on as revelatory. And it’s what prompted McLean and Pabst to submit affidavits stating that the Montana Innocence Project, in the lead-up to the decision to dismiss the case in 2016, misrepresented Thomas’ statements over the several months it took to obtain his signed recantation.
Marble’s attorneys, however, argue the document, taken as a whole and in context, actually bolsters his case. In fact, it was among the evidence included two and a half years ago when they filed the civil suit seeking compensation for wrongful conviction.
Regardless, the development has McLean “stunned and disappointed,” he wrote in his Feb. 16 affidavit. Had the Innocence Project “told the truth about their interactions with Thomas,” he stated, “I never would have granted Marble a new trial or dismissed his case.”
Pabst wrote in her Feb. 2 affidavit: “That report — which clearly shows that [Thomas] told the Innocence Project he was in fact raped by Marble — contradicts what Larry Mansch and Jessie [Schandelson] told me during our recorded interviews and contradicts their subsequent testimony.”
The memo is just the latest example of disputed evidence that’s muddied the case against Marble since the beginning, confused further by time itself. Thomas committed suicide during a standoff with police in Havre 10 years ago. Other former jailmates who testified during Marble’s 2002 trial are also dead, and others long ago recanted their statements.
“A lot of this is stale,” Missoula attorney Steve Carey, whose firm is representing Missoula County in Marble’s compensation claim, said in a recent interview. “Folks are retired … memories fade. It’s just a challenge with this kind of a lawsuit.”
Now McLean and Pabst have recanted, too.
Missoula County Attorney Kirsten Pabst’s reversal is especially surprising. The 27-page “Motion to Dismiss Judgment” she filed in 2016 laid out a range of reasons — well beyond only Thomas’ recantation — for why Marble’s conviction “lacks integrity.”
And just 16 months ago, in November 2022, she said during a deposition that her opinion hadn’t changed.
“I felt like I did the right thing and still feel like I did the right thing,” she said.
“And that justice was served?” one of Marble’s attorneys asked.
“Yeah, however you want to define justice,” Pabst said. “I think that this case lacked — the conviction at this juncture, looking back, had problems, and it wasn’t something that I could ever re-try. And so because of that, in my opinion, Cody was legally innocent, he was innocent, so he shouldn’t continue to be saddled with this conviction at this juncture.”
Muddying things further, Pabst’s original position ran counter to that of her predecessor, Fred Van Valkenburg, who held the post when the county prosecuted Marble and later openly criticized Pabst’s reasoning for declining to retry him.
Pabst announced in February that she’s retiring at the end of March.
The Montana Innocence Project filed a petition for a new trial on Marble’s behalf in 2010. The basis for it was newly discovered evidence — namely, Thomas’ recantation. Former (and now deceased) District Court Judge Douglas Harkin denied the petition in 2013. The Montana Supreme Court reversed Harkin in 2015, sending the case back to Montana District Court. That’s how it reached Judge McLean’s courtroom.
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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.
After McLean vacated the judgment in 2017, Marble would eventually file a wrongful conviction claim in federal court, which was dismissed without prejudice in September 2021. Shortly after — and in the wake of the Montana Legislature putting a wrongful conviction compensation law on the books — Marble filed the civil case against Missoula County and the state of Montana.
And now Marble’s rape charge is being re-litigated before Montana District Court Judge Shane Vannatta in the Missoula County Courthouse, with the two sides preparing for a trial scheduled to begin May 13.
The county’s defense team emphasizes that Marble’s vacated conviction falls short of legal exoneration. McLean’s order only allowed for a new trial, and Pabst as the county’s top prosecutor instead motioned to dismiss the charge, which McLean granted. Some legal exonerations are the result of newly discovered and incontrovertible evidence, like forensic DNA analysis. That was not the case when McLean and Pabst let Marble walk after he fought for 15 years to prove his innocence.
Per the wrongful conviction compensation law the Montana Legislature passed in 2021, Marble must prove “by a preponderance of the evidence” that he did not commit the crime for which he was convicted. One of the law’s requirements is that the conviction “was reversed or vacated and either the claimant was not retried and the charges were dismissed, or the claimant was retried and was found not guilty.” The law does not require legal exoneration.
If Marble wins the case, the law stipulates he should be awarded $60,000 for each year of imprisonment, plus $25,000 for each additional year he was either paroled or under supervised probation, or required to register as a sex offender, whichever is greater. It adds up to roughly $758,000, according to his claim. Missoula County would be required to pay 75%, or $568,500.
That potential liability, Carey said, “has nothing to do with the analysis and the defense of the case.” He said it’s solely about defending Missoula County as Marble accuses the county’s investigators and prosecutors of wrongdoing.
“We have literally hundreds of years of law enforcement experience in the individuals who had anything to do with the case, and we are unable to see that anybody did anything in error at any point in the prosecution and conviction of Cody Marble,” Carey said. “What is different, as is laid out in our briefs, is that the testimony provided to the court and to the county attorney’s office was inaccurate in substantive ways.”
The defense team’s strategy has included a recent motion to compel the Montana Innocence Project to turn over its entire case file. On Feb. 13, Judge Vannatta heard the county’s arguments. Judge McLean watched from the gallery. Carey Law Firm attorney Andrew Huppert twice suggested during the hour-long hearing that Mansch’s and Schandelson’s testimonies leading up to McLean’s decision to dismiss the case bordered on perjury.
Shelby Stover, one of Marble’s attorneys, denounced Missoula County’s motion as a “witch hunt” — “an attempt to villainize the Montana Innocence Project and the folks who worked there.” She added that the allegations are “nothing more than unsupported and untrue sneaking suspicions with no basis in fact.”
“It’s not a witch hunt, Your Honor,” Huppert replied in rebuttal. “We found witches — we found some. We don’t smell a rat; we found a rat.”
At the end of the hearing, Ross Johnson, who also represents Marble, emphasized that their theory of the case has been consistent — and consistent with Pabst’s motion to dismiss in 2016.
“Every time Mr. Thomas had to put his feet to the fire and actually testify about what happened, he was threatened with perjury, or he had questions about, ‘Well, if I tell the truth here, and I say that actually I wasn’t raped, and the testimony I testified to at the trial was untrue, what’s going to happen to me?’” Johnson said. “And when he gets the answer that, well, he could be charged, boy, he gets cold feet. That has been the story since the jump. It’s still the story today. The county didn’t find any new evidence.”
Johnson added that the memo — the county’s “supposed smoking gun”—taken as a whole supports Marble’s innocence, which is why it was included as an exhibit when filing this case seeking compensation for wrongful conviction.
On March 8, Judge Vannatta denied the county’s motion to compel the Innocence Project to turn over its file. He also denied Marble’s attorneys’ motion to strike McLean’s and Pabst’s affidavits.
Jessie Schandelson, who left the Montana Innocence Project in 2014 and now works as a private investigator, says the accusation that she and Mansch lied are “inaccurate and deeply offensive.”
“It’s been well known for years that Mr. Thomas waffled in his various statements, and my testimony was truthful,” Schandelson said in a statement. “This smear campaign is a desperate, last-minute attempt to shift the focus and blame away from where it belongs.”
The current director of the Montana Innocence Project, Amy Sings In The Timber, says the organization stands by Marble, and she calls the county’s arguments disingenuous.
“The fact that our former client is being retried on their innocence is deeply disheartening to us,” Sings In The Timber said. She added that the county’s tack contradicts the intent of Montana’s wrongful conviction compensation law.
“The intention of it is to provide individuals who have been harmed by the state to have some sort of meaningful compensation for that harm,” she said, “not to be dragged through the mud — not to be retraumatized by having their innocence put back into question.”
Last year, the Montana Legislature passed a bill to amend the wrongful conviction compensation law so that the state is fully liable for successful claims, instead of holding the county in which the conviction originated responsible for 75%. The bill also amended the original law’s sunset provision so it wouldn’t expire on June 30, 2023. But Gov. Greg Gianforte vetoed the bill, leaving counties accountable for the majority of successful claims. And by letting the law expire, the veto means Cody Marble’s compensation claim, the first filed under the law, might also be the last.
Disclosure: Jessie Schandelson is a former member of the Montana Free Press board of directors.
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