- Associated Press - Friday, August 14, 2015

HELENA, Mont. (AP) - The Montana Supreme Court on Friday reversed a district judge who denied a new trial to a Missoula man after the 13 year-old boy who accused him of rape recanted his story.

Cody Marble was convicted in 2002 of raping the boy in a juvenile detention center when he was 17 years old. The Montana Innocence Project took up Marble’s case and obtained from his accuser a written recantation in 2010.

Based on that recantation, Marble filed for post-conviction relief and a new trial. District Judge Douglas Harkin called the accuser to the stand, who reneged on his recantation, saying he was pressured into making it and he believed the Innocence Project would help him in a separate case if he signed it.

The judge rejected Marble’s petition. Marble’s accuser killed himself in a 2014 police standoff in Havre.

Marble appealed Harkin ruling. The justices ruled in the 5-2 decision that the legal standard Harkin used to deny Marble’s petition was too rigid. That standard calls for the new evidence to “unquestionably establish his innocence,” which Harkin ruled the rape recantation did not.

That high burden of proof may work well for scientific evidence such as DNA, but not in situations where the new evidence is perjury, an alibi or a recantation, Justice Patricia Cotter wrote in the majority opinion.

“Powerful new evidence of this type could certainly establish that the defendant did not commit the crime of which he was convicted, but it will not, standing alone, ‘unquestionably establish his innocence,’” Cotter wrote.

The Supreme Court sent the case back to Harkin with instructions that he use a different standard based on state law that has a lesser burden of proof. The law says a convict may bring a petition if the new evidence would establish the person did not commit the crime if it is proven and viewed in light of the rest of the evidence.

The justices said Harkin must use that standard to determine whether Marble should receive a new trial, or even whether he should be released on bail or discharged.

The case that set the “rigid” standard of proof was the court’s own 2013 decision against Barry Beach, who was sentenced in the 1979 murder of a 17-year-old high school classmate in Poplar.

Justice Laurie McKinnon, in her dissent Friday, said the court’s reasoning in the Marble case may have implications for Beach’s case.

“By announcing a new, lesser burden for obtaining relief, we implicate serious concerns of fairness and equity regarding our resolution of prior claims, particularly those of Barry Beach,” she wrote.

In 2011, a state judge granted Beach a new trial based on testimony that a group of girls might have been involved in the killing. The judge ordered Beach released from prison, but the Montana Supreme Court overturned that ruling 18 months later, saying the evidence would not unquestionably establish his innocence in light of the other evidence against him.

Montana Department of Justice spokesman John Barnes declined comment on the Marble ruling. Montana Innocence Project representatives did not immediately return a request for comment.


This story has been corrected to show that the Montana Supreme Court did not order a new trial and the spelling of the district judge’s last name.

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