- Associated Press - Thursday, May 26, 2016

MISSOULA, Mont. (AP) - A state judge has no authority to grant a motion to dismiss a 2002 rape case, the former Missoula County attorney said when given a change to respond to the motion.

County Attorney Kirsten Pabst filed a motion last month to dismiss the case against Cody Marble, arguing that three witnesses, including the alleged victim, had recanted their testimony about the alleged rape in a juvenile detention center when Marble was 17 and the complainant was 13. Jail officers also said there was no window of opportunity for the rape to have happened, the Missoulian (https://bit.ly/1OPhciX) reported.

Pabst’s motion noted that former County Attorney Fred Van Valkenburg told the complainant he could possibly face a perjury charge if he recanted his initial testimony. During an October 2012 hearing on Marble’s motion for a new trial, the complainant testified that Marble raped him.

The judge rejected Marble’s petition for a new trial, saying it appeared the recantation had been coerced.

The state Supreme Court ruled last August that the legal standard District Judge Douglas Harkin used was too rigid. The Supreme Court sent the case back to District Court with instructions to use a different standard to determine if Marble should receive a new trial and even whether he should be released on bail or discharged.

Retired District Judge Ed McLean gave Van Valkenburg an opportunity to respond to Pabst’s motion, which said the conviction “lacked integrity” and that it was “never too late to do the right thing.”

Van Valkenburg wrote Tuesday that the judge is limited to the options listed in the Supreme Court ruling, which he said did not include dismissing the case.

“The Supreme Court has previously said that when it remands a case with specific directions to the District Court, the lower court is limited in its jurisdiction and authority in the case to carrying out the Supreme Court’s specific directions on remand,” he wrote.

Van Valkenburg argued that McLean should both deny Pabst’s motion to dismiss and find that Marble has not met the standard for new evidence and does not deserve a new trial.

“One of the hardest things for lawyers to do is to admit when we’ve made a mistake,” Pabst said in a statement Wednesday. “No human system is perfect but, if we are truly committed to improving the criminal justice process, we must admit when we are wrong and commit to making sure that doesn’t happen again.”

After investigating the case and “in light of my ethical obligation to do justice, I firmly stand by my decision that the charges against Cody Marble must be dropped,” Pabst said.

McLean ordered Marble released from prison on April 19, two days after Pabst filed her motion.

Marble’s accuser fatally shot himself during a standoff with law enforcement officers in April 2014 in Havre.

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Information from: Missoulian, https://www.missoulian.com

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