Double standard for perjury in Missoula County?

Late last year I wrote here about a story that Lee’s Mike Dennison has been following about a Missoula man has fought for nearly a decade to overturn is rape conviction.

Cody Marble, 27, was convicted in 2002 of raping a 13-year-old fellow inmate at the Missoula County Juvenile Detention Facility and sentenced to 20 years in prison. Marble adamantly denied the charges from the beginning and has insisted all along that he was set up by his fellow inmates.

Dennison reported last December that victim, now in his 20s, admitted to investigators for the Montana Innocence Project that he made up his testimony. From Dennison’s piece:

In a statement filed Tuesday with Marble's petition, the alleged victim, now 22, says he was not raped by Marble and that he was told by other teenagers held in the detention center to make up the story to frame Marble for the crime.

“I testified falsely against Cody Marble at the trial,” he said in his statement. “I thought by then that the story had gone too far and I could not go back. I never thought he would be found guilty or go to prison. ... My hope now is to set the record straight.”

What was Missoula County Attorney Fred Van Valkenburg’s response to seeing the victim’s signed a statement recanting his 2002 testimony?

“It's just one more thing that Cody Marble is trying to do to avoid responsibility for his case,” Van Valkenburg said. “We're just going to have to deal with it.”

Dennison followed-up on the story last week reporting that Van Valkenburg filed court documents saying that Marble has “no evidence” that could overturn his rape conviction  because the victim has “repeatedly refused” to sign a sworn statement recanting his 2002 court testimony. The victim, by the way, is serving a sentence in Deer Lodge for having sex with an underage girl, and is thus already under the thumb of the criminal justice system.

Now, according to the victim’s lawyer, Brett Schandelson of Missoula, the victim “has no desire to participate in Mr. Marble’s petition any further” and “will not answer questions put to him by either party.”

“He desires to be left alone and continue the good progress he has made at (prison) Boot Camp,” Schandelson wrote.

Could the reason his client doesn’t want to go on the record and say he lied in 2002 have something to do with his fear of being prosecuted for perjury, a crime punishable by up to 10 years in prison and a $50,000 fine?

Marble has asked the court to grant the victim—who was 13 at the time of the alleged rape—immunity from perjury.

But according to Dennison’s report, Van Valkenburg opposed that request, saying:

…anyone who gave knowingly false testimony at a trial should not be shielded from prosecution.

“If prosecutorial immunity is given to those who perjure themselves, there is no guaranteeing the veracity of any future testimony,” Van Valkenburg said in court papers filed this week.

So if the victim comes forward and recants testimony he gave when he was 13 and says that the rape Cody Marble was convicted of never happened, he could face more prison time and a huge fine. But if he doesn’t recant, he serves out his sentence in Deer Lodge and goes on with his life while Cody Marble continues to be labeled as a sex offender. That’s the situation Van Valkenburg has set up by denying to give the victim prosecutorial immunity. 

Van Valkenburg’s position really blows me away.  Here’s why:

In February 2006 I covered the high-profile trial of a man accused of raping a woman at a now-defunct popular nightclub in Missoula. Wilbert Fish was charged with sexual intercourse without consent, a felony, after police alleged they saw Fish with his hand down the pants of an unconscious 21-year-old woman.

However, video surveillance tapes shown to jurors forced arresting Missoula Police officers Ryan Ludemann and Duncan Crawford to admit on the stand that they had falsified the arrest report and gave false testimony during the trial. It also came out during that trial that Officer Ludemann has history of lying while on the job. Ludemann once cited a woman for driving with a suspended license based on an accusation made by his own wife, despite the fact that he never actually saw the woman driving.  Driving with a suspended licenses carries a minimum 48 hours in jail. Ludemann wrote in his official report that he saw the woman driving but that he “lost her in traffic.” He then lied to his superiors to try to cover-up his lies. He admitted to all of that during the Fish trial.

After hearing that testimony and after watching video surveillance tapes that proved that Ludemann and Crawford were lying, it took the jury of four women and eight men less than two hours to find Fish not guilty of rape.

So does giving false testimony equal perjury?

According to Montana Code 45-7-201:

A person commits the offense of perjury if in any official proceeding he knowingly makes a false statement under oath or equivalent affirmation or swears or affirms the truth of a statement previously made, when the statement is material.

To my knowledge, neither officer Ludemann nor Crawford were ever charged with perjury for their testimony in the Fish trial, despite the fact that they both admitted to giving false statements under oath. I don’t know if they were officially reprimanded.

Which brings me to my point. Van Valkenburg was willing to turn a blind eye to perjury when his own law enforcement officials are committing it in the name of securing a conviction. But if a man in his 20s wants to officially “set the record straight” about a lie he says he told when he was 13-years-old—and in the process clear the name of a man who may have been falsely convicted of rape—he should face 10 years in prison and a $50,000 fine?

Colin Stephens, Marble’s attorney, told Dennison that if the victim is given immunity, “he’ll certainly testify at any new hearing on Marble’s request to overturn his conviction.”

As Stephens points out in the article, “the question for the court is whether the jury would have convicted Marble if they knew the victim changed his testimony.”

Van Valkenburg dismissed the recantation obtained by the Innocence Project as: “the result of a non-objective, non-forensic, leading, goal-oriented ‘investigation’ by an organization whose mission it is to reverse jury convictions,” he argued.

It appears from his statements and actions that Missoula County Attorney Fred Van Valkenburg places a higher value on preserving convictions than serving justice.

Alleged rape victim recants; prosecutor seems disinterested

I was re-reading Mike Dennison’s piece on the Missoula man who fought for eight years to overturn is rape conviction and I was absolutely stunned by the prosecutor’s quote in the story.

First a little background...

Cody Marble, 26, was convicted in 2002 of raping a 13-year-old fellow inmate at the Missoula County Juvenile Detention Facility and sentenced to 20 years in prison. Marble adamantly denied the charges from the beginning and has insisted all along that he was set up by his fellow inmates.

Now, according to Dennison’s article, the alleged victim said the rape never happened and that Marble was indeed framed by fellow inmates (emphasis are mine):

“In a statement filed Tuesday with Marble's petition, the alleged victim, now 22, says he was not raped by Marble and that he was told by other teenagers held in the detention center to make up the story to frame Marble for the crime.

"I testified falsely against Cody Marble at the trial,” he said in his statement. “I thought by then that the story had gone too far and I could not go back. I never thought he would be found guilty or go to prison. ... My hope now is to set the record straight.”

That a HUGE twist in this case.

The alleged victim, and the only real witness other than Marble, says he wasn’t raped and that he lied in court because he “though that the story had gone too far.” It’s pretty easy for me to imagine that a 13-year-old might be afraid to tell the truth after a lie had gone that far.

But here’s the part of the story that left my jaw on the kitchen table (again, emphasis mine):

Marble's petition, filed in state District Court in Missoula, asks the court to hold a hearing on the new evidence and either set aside Marble's conviction or schedule a new trial.

Missoula County Attorney Fred Van Valkenburg, who had seen the petition only briefly Tuesday afternoon, said it's surprising to see a victim recanting testimony eight years later.

“It's just one more thing that Cody Marble is trying to do to avoid responsibility for his case,” Van Valkenburg said. “We're just going to have to deal with it.”

Faced with a signed statement from the alleged victim saying the rape never actually occurred, and that Marble has indeed been telling the truth—that he was framed by fellow inmates—Van Valkenburg dismisses the new evidence and says Marble “is trying to avoid responsibility.”

Responsibility for what? Being in jail at the wrong time with the wrong inmates? For being convicted of a rape that even the victim now says never happened?

I’m absolutely dumbfounded by VanValkenburg's statement.

The Montana Innocence Project obtained the victim’s statement last summer. Jessie McQuillan, executive director of the Innocence Project, had this to say:

“Our investigation yielded information that supports his innocence and raised more questions, and we turned that over (to Marble's attorney),” said Jessie McQuillan, executive director of the Montana Innocence Project. “The centerpiece of the petition is that the alleged victim has recanted. He says what many people suspected: That the rape never took place.”

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Innocence Project staffers and lawyers learned that the alleged victim was ready to recant his trial testimony, and visited him at the state prison in Deer Lodge 11 months ago, McQuillan said.
“He told us it was time to recant and we got the signed statement in July, at a subsequent visit with him,” she said.

Good job Mike Dennison for following this story and reporting on Cody Marble’s case after many journalists—including yours truly—weren’t able to put all the pieces together.

And hats off to my former Missoula Independent colleague Jessie McQuillan and the Montana Innocence Project for obtaining this startling admission from the alleged victim. For those who don’t know, Jessie McQuillan is also the award-winning  journalist who made Barry Beach a household name in Montana. You can read her excellent reporting on Beach’s case, the article that lead  to a 2-hour Dateline NBC special, here.

Am I over reacting here? Please read the whole story and this stunning statement by an elected official and share your thoughts.