Marble v. Missoula Cnty.

CODY MARBLE, Plaintiff, v. MISSOULA COUNTY et al., Defendants.

CV 20-89-M-DLC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

October 13, 2020

ORDER

Before the Court is: (1) Defendants Dorothy Brownlow, Andrew Paul, and Jennifer Johnson's (collectively "Prosecuting Defendants") Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 6); (2) Defendants Michael McMeekin, Brad Giffin, Jeremy Meeder, Michael Dominick, and Robert Taylor (collectively "Law Enforcement Defendants") Motion to Dismiss (Doc. 8.); and (3) Defendant Fred Van Valkenburg's Motion to Dismiss (Doc. 10). For the reasons explained, all motions are granted in part and denied in part.

BACKGROUND¹

On January 3, 2017 District Judge McLean vacated Cody Marble's conviction for sexual assault of a minor and ordered the case for a new trial. (Doc.1 at 41.) Three days later, he dismissed the entire case. (Id.) Marble was released having spent 13 years in prison for a crime he did not commit. (Id. at 34, 42.)

The events leading to his conviction began in early March of 2002. Marble was 17 at the time, and briefly detained in the juvenile wing of the Missoula County Detention Center. (See id. at 3-4.) On the evening of March 16, Scott Kruse, a juvenile detainee charged with murdering a homeless man, reported to an officer that a few nights prior he had witnessed Marble rape a 13-year old boy named Robert Thomas. (Id.) Kruse claimed that sometime between 9:00 and 9:45 p.m. he saw Marble and Thomas go into the shower changing area and "s[aw] everything" through a vanity wall. (Id. at 9.)

Deputy Brad Giffin from the Missoula County Sherriff's Office was dispatched to investigate. (Id. at 8.) Following Kruse's report, four more boys came forward with knowledge of the rape. (Id. at 4-11.) Nicholas Melton-Roberts—who had earlier unsuccessfully sought Marble's help in framing another boy for sexual assault—claimed he saw Marble standing behind Thomas with Thomas' pants pulled down. (Id. at 8.) Russell Miller initially told Giffin that he saw Marble and Thomas engaged in oral sex, but when prompted by the deputy, changed his story and claimed to witness anal sex. (Id. at 9.) Gregory Van Mueller told Giffin that he observed Marble and Thomas leaving the shower area together and later learned about the rape. (Id.) Finally, Justin Morin claimed hesaw Marble hump Thomas through the vanity wall and claimed that Marble was red as he left the shower. (Id. at 11.) Morin also reported that Thomas had told him about the rape—an allegation which Thomas later denied. (Id. at 11.)

When Giffin took Kruse's statement, Kruse admitted that he was in lockdown during the rape, but nevertheless claimed to see Thomas bent over with his hands on the floor. (Id.) The deputy did not question whether it was possible to view the shower area from Kruse's cell. (Id. at 9-10.)

Giffin did not interview Marble or Thomas as both boys had been discharged from the facility two days prior—although Thomas eventually corroborated the boys' stories. (Id. at 5.) Nor did Giffin interview any of the four detention officers on duty the night of the alleged rape. (Id. at 12.)

Meanwhile, Sergeant Dominick with the Sheriff's Office retrieved the security footage from the shower area. (Id. at 6.) When it did not support the boys' narrative of events, Dominick chalked it up to his lack of familiarity with the juvenile facility. (Id.) He then returned to the station to brief his captains about the investigation. (Id. at 7.)

At roughly the same time, Deputy Taylor from the Sherriff's Office was getting Missoula County Deputy Attorney Jennifer Johnson up to speed on the investigation. (Id.) Taylor was acquainted with Marble from a run-in a few years prior. (Id. at 15.) In the midst of arresting Marble, the encounter turned hostilewhen Taylor spat in Marble's face and kicked him to the ground, after which Taylor was suspended and the pending charges against Marble were dropped. (Id. at 15-16.) Because of this, Taylor felt motivated to make a sexual assault charge stick—and was even overheard telling others that he planned to make Marble's life "hell." (Id. at 15, 18.) To build his case, Taylor relied on Johnson to guide the investigation, while deputy attorneys Andrew Paul and Dorothy Brownlow were assigned to prosecute it. (Id. at 7, 22.)

On March 17, the day after Kruse reported the rape, Dominick—accompanied this this time by sheriff's deputy Jeremy Meeder—drove to Marble's home. (Id. at 3.) The deputies arrested Marble without a warrant. (Id.) In explanation for the arrest, Dominick told Marble's father that he had video proof that Marble had raped another inmate. (Id.) The officers then escorted Marble to the police station where he was questioned without an adult or attorney present. (Id.)

As the investigation unfolded, significant holes remained. For example, no one bothered to interview the detention officers on duty that night—many of whom were skeptical that a rape occurred. (Id. at 17, 20.) Reviewing the activity log, Chief Detention Officer Scott Newman did not believe that the officer's random walkthroughs left adequate time for any rape to have taken place. (Id. at 16, 19.)Others believed that if Marble and Thomas had entered the shower area after-hours someone would have seen it from the control room. (Id. at 13, 16.)

Still others had caught wind that Marble was being set-up. Detention Officer Gary Lancaster overheard Melton-Roberts confess that Marble was being framed and Officer Joanie Bigelow overheard Van Mueller tell two others that the rape never took place. (Id. at 19-20.) These officers believed that Kruse and Melton-Roberts had made up the rape hoping that their testimony against Marble would favorably impact their own pending charges. (Id. at 20.) In fact, after Kruse implicated Marble for rape, Deputy Attorney Brownlow reduced Kruse's homicide charge to misdemeanor assault which resulted in Kruse's release from custody. (Id. at 10.)

In November of 2002, Marble's case went to trial. (Id. at 22.) Kruse did not testify as he had fled the area after confessing to Brownlow that he did not, in fact, witness the rape. (Id. at 23.) Kruse's testimony was introduced by Brownlow who took the witness stand. (Id.) The prosecution also claimed to be unable to locate Justin Morin—whose inconsistent testimony was problematic for their case—although they should have been able to find him as he was housed at a juvenile facility in Boulder, Montana. (Id. at 11.) The prosecution's case relied entirely on the testimony of the boys, as there was no physical evidence to support a rape taking place. (See id. at 19, 24, 26.) Deputy Attorney Paul argued at closing thateven though Thomas' physical exam came back negative for sexual assault, this result, in fact, proved the rape occurred because Thomas must have a quickly-healing anus. (Id. at 26.) At the close of trial, the jury convicted Marble. (Id. at 22.) He was later sentenced to 20 years in prison, with 15 suspended. (Id.)

In 2009, while on parole, Marble contacted the Montana Innocence Project because he had heard rumors that Thomas, who had subsequently been convicted for a sex crime himself, had been telling other inmates that Marble never raped him. (Id. at 29-30.) After conducting a thorough investigation, the Innocence Project agreed to take the case and obtained a letter from Thomas in which he wrote:

I want to come out and let it be know[n]. I'm coming forward because I am in prison for a sex crime and know what it is like. So I don't want him [Marble] to be charged with one when innocent. When I was in [the detention center], I was [the] youngest & smallest and I was pressured into going along with it.

(Id. at 30-31.) Thomas admitted that the other boys had bullied him into framing Marble in the expectation that all involved would receive lighter sentences in exchange for their testimony. (Id. at 31-32.)

During the reinvestigation, Corrina Marry who had originally testified against Marble at trial also confessed to lying on the stand when she denied any knowledge that Van Mueller had recanted his story to her. (Id. at 30-31.) Shenow maintains that in 2002, Van Mueller told her that Marble was set-up. (Id. at 31.)

Based on the witness recantations and evidence that it was impossible for Kruse to have seen the shower area from where he was in lockdown on the night of the alleged rape, the Innocence Project brought a petition for post-conviction relief. (Id. at 31.) While the petition was pending, County Attorney Fred Van Valkenburg, who was in charge of the County Attorney's Office during the Marble investigation and trial, interviewed Thomas and threatened to prosecute him for perjury if he continued to support Marble's case. (Id. at 32.) Thomas got cold feet, and in 2012, during a hearing on Marble's post-conviction petition, he stuck by his trial testimony and claimed his recantation was false. (Id.) Ultimately, the judge denied the petition. (Id.) While Marble's case was on appeal, Thomas committed suicide. (Id. at 33.)

Then, in 2015, the Montana Supreme Court reversed the denial of Marble's petition and sent it back for the district court to reconsider. (Id.) By this time, Kristin Pabst had replaced Van Valkenburg as the Missoula County Attorney, and she took a different view of the matter. In her motion to dismiss Marble's case, she wrote that his conviction "lacked integrity" and that "it was never too late to do the right thing."² (Id. at 33-34.) Van Valkenburg, who was no longer affiliatedwith the County Attorney's Office, joined the proceedings as an amicus curiae to argue against Pabst's motion. (Id. at 34.) On January 3, 2017, the judge vacated Marble's conviction. (Id. at 41.) Three days later, he granted the County's motion to dismiss the case. (Id.)

LEGAL STANDARD

Rule 12(b)(6) motions test the legal sufficiency of a pleading. Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a...