Missoula County Attorney Moves to Dismiss Case, but Judge Fails to Sign Motion

On Tuesday, the Montana Innocence Project received the news it has been waiting to hear: Missoula County Attorney Kirsten Pabst was agreeing to file a motion to dismiss the 2002 rape conviction against Cody Marble. Upon the announcement, both the Montana Innocence Project and Pabst anticipated that Marble would walk out of prison later that day. But much to their dismay, Marble was not released. The district court judge re-examining the case did not sign the motion to dismiss.

According to the Montana Kaimin, in 2002 Marble was 17 years old when he was placed in juvenile detention for drug use and taking the family car without permission. While in custody, he was accused of sexually assaulting a 13-year-old boy who was detained at the same facility. Marble was convicted and has been in prison since.

But the Montana Innocence Project says that Marble was wrongly convicted. According to the project and Pabst, a number of witnesses—as well as the victim—have recanted their original accusations against Marble. Pabst said at a news conference on Tuesday that she has “concluded that Marble’s (conviction) lacks integrity and in the interests of doing justice, it must be dismissed,” said Pabst according to the Missoulian.

The Montana Innocence Project has been working on the case since 2009. In August of last year, the Montana Supreme Court remanded the case to the Missoula County District Court after Judge Douglas Harkin had denied a new trial. Upon the remanding, the Montana Innocence Project “filed a motion for Judge Harkin to recuse himself, and the case was given to [District Court Judge Ed] McLean,” reports the Missoulian.

As for what will happen next, Marble and his attorneys are eager to know.

“Our understanding is that Judge McLean has not signed the order to dismiss the case. The reasons are unclear,” Mansch said, according to the Missoulian. “I’m afraid that’s put a delay on us so we’re going to have to see where this goes.”

UPDATE:  According to the Billings Gazette, District Court Judge Ed McLean issued an order to release Marble on April 21st but failed to take action on the motion filed by Missoula County Attorney Kirsten Pabst to dismiss the judgment against Marble.  According to the Gazette, Judge McLean has taken the very unusual step of inviting the prosecutor who originally prosecuted the case, Fred Van Valkenburg, to provide input on the motion to dismiss.  Read more here.