Marble v. State, decided January 03, 2017, Montana 4th Judicial District Court, Missoula County
Jan. 03, 2017, Judge Ed McLean granted the Montana Innocence Project’s Petition for Post-Conviction Relief, and vacated the conviction of Cody Marble. Judge McLean ordered that Cody Marble receive a new trial.
Originally placed in custody in 2002 after his conviction of Sexual Intercourse Without Consent, Marble had been released from custody on April 19, 2016, after the State of Montana filed a Motion to Dismiss Judgement. Marble has spent the better part of 14 years wrongfully incarcerated in the Montana prison system.
In 2010 the Montana Innocence Project filed a Petition for Post-Conviction Relief on Marble’s behalf. The Petition was denied in 2012, and MTIP appealed. The Montana Supreme Court reversed and remanded for further proceedings in 2015. On December 19, 2016, Judge McLean held an evidentiary hearing and heard testimony from MITP legal director Larry Mansch, former executive director Jessie McQuillan, and student intern Mike Garrity, who all testified that the alleged victim in the case had repeatedly recanted his trial testimony. Finding that testimony credible, McLean wrote that “in conjunction with all the other evidence that has been offered in this case, it dictates the necessity of a consideration of a new trial for Mr. Marble.”
“I have been waiting for this moment for many, many years,” said Marble upon hearing of the Court’s order. “I am grateful for the support and dedicated work of the Montana Innocence Project, and all of the lawyers and volunteers who worked on my case. I particularly want to thank Colin Stephens, who took the case as a pro bono attorney and did an outstanding job. I look forward to spending the rest of my life, with my friends and family, as a free man.”
Marble’s father, Jerry, agreed. “It has been such a long time coming,” he said. “We will be forever grateful to Colin Stephens and all the wonderful folks at the Montana Innocence Project. They righted a tremendous wrong. They gave Cody back his life.”
In last Spring’s Motion to Dismiss, Missoula County Attorney Kirsten Pabst noted the Montana Supreme Court mandated that a “more critical look” be taken at the foundation of Marble’s conviction. Since Marble’s conviction, wrote Pabst, “at least three witnesses - including the victim - have recanted their statements.” Further, “a host of law enforcement officers testified that the crime could not have happened; there was no adequate window of opportunity; (and) the other inmates concocted a ‘set-up’; and/or that Marble was railroaded.” The State “reviewed thousands of pages of documents,” interviewed key witnesses, and consulted with the Attorney General. The State found “numerous faults undermining the integrity of the original conviction.” The judgment, wrote Pabst, “lacks integrity and in the interests of doing justice, it must be dismissed.”
Judge McLean agreed with Pabst. “The testimony of Mr. Mansch, Mr. Garrity and Ms. McQuillan concerning the numerous recantations of (the alleged victim),” wrote McLean, “taken together with the other evidence as a whole undermines the confidence the Court has in Mr. Marble’s criminal conviction…”
Mansch expressed satisfaction with Judge McLean’s order. “We are very pleased with the Court’s Order dismissing the judgment against Cody Marble,” said Mansch. Many people – most notable pro bono attorney Colin Stephens and our investigator Spencer Veysey – worked countless hours to free Cody.” MTIP President Dan Weinberg echoed Mansch’s feelings. “Our organization is dedicated to freeing wrongfully convicted individuals like Cody,” Weinberg said. “We are happy that justice was finally done in this case, and we are determined to continue to do our best to help others who are deserving of their freedom.”
Burkhart v. State, decided November 23, 2016, Montana 8th Judicial District Court, Cascade County
On November 23, 2016, Montana District Judge John Kootzman vacated the homicide conviction of Montana Innocence Project client Richard Burkhart, and ordered a new trial.
Burkhart was convicted of deliberate homicide on September 19, 2002 in Cascade County, and sentenced to 100 years in the Montana State Prison. In 2015 the Montana Innocence Project discovered new evidence of Burkhart’s innocence, including the fact that the confession of another suspect in the crime had not been disclosed to the defense attorneys. The Innocence Project moved to vacate the conviction, and Judge Kootzman agreed.
“The Court concludes,” wrote Kootzman, “the undisclosed evidence would, if timely disclosed, have entitled Mr. Burkhart to a new trial in 2002 and that there is a reasonable probability the outcome of that new trial would have been an acquittal if the jury heard that evidence. The law accordingly requires the Court to grant Mr. Burkhart’s motion for a new trial.”
“We are very pleased with the Court’s Order dismissing the judgment against Richard,” said Larry Mansch, Legal Director for the Montana Innocence Project. “He has spent 14 years in prison for a crime he did not commit. If the State decides to retry the case, we are very confident we can prove Richard’s innocence.”
MTIP President Dan Weinberg echoed Mansch’s feelings. “Our organization is dedicated to freeing wrongfully convicted individuals like Richard,” Weinberg said. “With the Court’s Order, Richard has taken a giant step forward in his path to freedom. We are determined to do our best to help Richard, and others who are wrongfully convicted.”
Raugust v. State, decided September 7, 2016, Sanders County District Court
After 18 years of fighting to prove his innocence Richard Raugust has been fully exonerated of all charges stemming from the 1997 murder of his best friend Joe Tash in Trout Creek, Montana. Raugust has been represented by the Montana Innocence Project and Brett D. Schandelson of Tipp and Buley, P.C. in his quest to prove his innocence.
Raugust was convicted in March 1998 in Sanders County, Montana. After more than a decade of attempting to prove his innocence, Richard requested the help of the newly formed Montana Innocence Project, which first took on Richard’s case in 2009. Schandelson, an attorney in private practice, joined the defense team on a pro bono basis in late 2012.
On September 7, 2016, Sanders County Attorney Robert Zimmerman filed a Motion to Dismiss the charges with Prejudice, fully and finally ending Richard’s long legal struggle. The Motion comes just two weeks after the Montana Attorney General abandoned its efforts to overturn Judge James Wheelis’ November 16, 2015 Order ruling the State had committed a Brady violation by suppressing evidence favorable to Raugust at his 1998 trial. Wheelis’ Order overturned Raugust’s conviction and granted him a new trial. On December 4, 2015, Judge Wheelis freed Raugust from prison on his own recognizance after more than 18 years behind bars. Now that the State has moved to Dismiss all charges With Prejudice and the Court signed the Order, Raugust is fully exonerated and once again a free man.
“We couldn’t be happier for Richard,” said MTIP Legal Director Larry D. Mansch. “Today is the result of many years of dedicated work toward a just cause. Our belief in Richard’s innocence never wavered. We extend our thanks to the many individuals who worked on Richard’s behalf, particularly his legal team which includes Brett Schandelson and Sarah Lockwood of Tipp & Buley; Brendan McQuillan; and Toby Cook. We also express our thanks to our private investigator, the late Spencer Veysey, who dug deep and uncovered the compelling evidence of innocence that ultimately exonerated Richard.”
MTIP Board President Dan Weinberg echoed Mansch’s feelings. “Our organization is dedicated to freeing wrongfully convicted individuals like Richard,” Weinberg said. “We are happy that justice was finally done in this case and we are determined to continue to do our best to help others who are deserving of their freedom.”
“Today is an important day because it’s a very rare occasion where the criminal justice system says ‘Hey, we got it wrong, let’s fix it,’” said Brett D. Schandelson. “But more importantly, today is the beginning of a new chapter in Richard’s life and, after more than 18 years of incarceration, a chance to move forward in a new way. Wherever his new life takes Richard, it will be far removed from the High Side Cell at the Montana State Prison that was his home for far too many years. I am sure that whatever Richard chooses to do with his life he will continue to be an inspiration to those around him.”
“I have been waiting for this moment for many, many years,” said Raugust. “I am grateful for the support and dedicated work of the Montana Innocence Project, and all of the lawyers and volunteers who worked on my case. I look forward to spending time with my friends and family as a free man.”
United States v. Watson, decided July 19, 2015, U.S. 9th Circuit Court of Appeal
Mr. Watson was convicted in federal court of a sexual assault alleged to have taken place on an American Indian reservation in Montana. With a view to obtaining a new trial based on newly discovered evidence he petitioned the district court for an order allowing him to test a semen sample present on clothing worn by the alleged victim at the time of the charged offense. In his earlier trial it had been determined that the sample was not suitable for testing, however expert opinion put forth in the petition demonstrated that advances in DNA testing created potential for a result proving that DNA from the sample does not match Watson’s DNA.
The district court judge denied the testing request, ruling that the formerly untestable DNA was not newly discovered DNA evidence because the clothing and the sample were not newly discovered. On appeal, however, the 9th Circuit court ruled in a case of first impression that the “potentially available” result of advanced DNA testing is newly discovered evidence even though the clothing and the semen sample are not. The lower court’s decision was reversed and the matter remanded for issuance of an order allowing testing of the sample.
Wilkes v. State, decided August 18, 2015, Montana Supreme Court
Mr. Marble’s case was the first of two MTIP cases that significantly rewrote the rules for how Montana courts are to handle post-conviction exoneration and new trial petitions. Four days later the Wilkes’ decision reaffirmed what had been said in Marble. The two cases made clear that post-conviction relief in Montana is governed by provisions of Montana’s post-conviction relief statute, not by previously approved Montana case law or by case law applicable to post-conviction relief petitions filed in federal courts.
Marble’s case was undertaken based on evidence that the alleged victim of the crime charged to Marble had recanted his trial testimony that led to Marble’s conviction. Wilkes’ case was undertaken for three reasons: the prosecution’s medical science evidence offered to prove that Wilkes’ young son died of abusive head trauma was long outdated and discredited; compelling new medical science evidence demonstrated that the child ‘s death was not caused by head trauma but by a pre-existing medical condition; and Wilkes’ lawyer failed his duty to Wilkes by not producing readily available medical science evidence to support his client’s innocence and rebut the prosecution’s discredited medical science evidence.
Each case resulted in reversal of an adverse district court decision and a remand with instruction that the case be reconsidered in light of the new decisions.