HELENA — An attorney for a Missoula man who’s fought more than 12 years to overturn a rape conviction told the Montana Supreme Court this week the man should get a new trial — even though the victim took back an earlier statement that the rape didn’t occur.

The victim’s recantation in 2010 and then contradictory sworn statement that the rape did occur at a Missoula juvenile jail in 2002 show the alleged victim is “absolutely and completely an incredible witness,” said Colin Stephens, and a jury should be allowed to evaluate this new evidence.

Stephens represents Cody Marble, who was convicted in 2002 of raping a 13-year-old boy when both were being held at the Missoula County Juvenile Detention Facility. Marble was 17 at the time and has steadfastly maintained his innocence, saying the crime never occurred.

A state district judge ruled last year that the recantation by the victim does not “affirmatively and unquestionably” establish Marble’s innocence and rejected Marble’s request for a new trial.

Marble, now 30 and out of prison on parole, has appealed that ruling. Stephens told the Montana Supreme Court Wednesday that Marble’s new evidence doesn’t have to prove his innocence— rather, merely show that the newly discovered evidence could lead to a different outcome at a new trial.

An attorney for the state, however, told the high court that Marble remains guilty under the law, convicted by a jury at an “error-free” trial.

Marble shouldn’t be able to get a new trial just because he presents some evidence he claims may lead to a different outcome, said Assistant Attorney General Tammy Plubell.

“What the language of the (appeal) statute requires is that you have to demonstrate that you did not commit the offense for which the jury convicted you,” she said.

Plubell also said both the state and Marble are entitled to a fair trial and that forcing the state to retry Marble 13 years after the crime occurred may not be fair to the state.

“Reasonable minds can certainly agree that a trial 13 years later ... is genuinely not going to lead to a more reliable result,” she said. “Our criminal justice system must strike a balance between finality and fairness.”

The Supreme Court took the case under advisement and will rule later, but it sparked some pointed questions and comments from the court’s justices during oral argument.

Justice Pat Cotter noted that the state law under which Marble seeks a new trial does not say he must prove “actual innocence,” and Justice Beth Baker said that a victim recanting his testimony that he’d been raped “certainly seems like the type of evidence that could cause a jury to find reasonable doubt.”

Justice Jim Rice, however, said the court has ruled previously that recantations should be viewed with “great suspicion” and asked why the high court couldn’t simply rule based on the facts that Marble hadn’t met a standard required to overturn his conviction or get a new trial.

Rice said the trial and the record had plenty of testimony from others that contributed to his conviction.

An added twist to the case is that the victim, Robert Thomas, shot and killed himself in April 2014, after a standoff with Havre police.

Marble’s attorney said if a new trial is held, the state could read Thomas’ testimony into the record and that Marble would attempt to undermine it.

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