HELENA – Two Montana men who spent years behind bars for crimes they didn’t commit testified Tuesday for a pair of bills that sponsors said would protect those falsely accused or convicted.
“There could be nothing better than for there to be a clear-cut statutory standard (for exoneration),” said Cody Marble, who was exonerated in 2017 on a 2002 rape conviction in Missoula. “I had to sit in prison for years longer because there isn’t one, while they sat around and argued what the standard is.”
Marble testified in favor of Senate Bill 172, which would set a new standard for post-conviction relief petitions, and Senate Bill 156, which would require closer scrutiny of “incentivized witnesses,” who’ve been offered something by prosecutors for their testimony.
But law-enforcement officials lined up Tuesday to oppose both measures, arguing that the protections aren’t really needed, would torpedo undercover investigations, and would make it too easy for convicts to seek a new trial.
“If we say we have to expose `incentivized witnesses,’ we are saying we have to expose our confidential informants,” said Sgt. Justin Jagers of the Billings Police, the commander of a local drug task force. “No one will want to work for us.”
Supporters of SB156 noted that it specifically does not apply to confidential informants and applies only to people who have to testify in open court and would be identified anyway.
SB172, sponsored by Sen. Margie MacDonald, D-Billings, defines what “newly discovered evidence” can be used by felons to claim their innocence and how and when it can be used.
“When the state convicts an innocent person, there needs to be a fair path to correct the wrong,” she told the Senate Judiciary Committee, which heard both bills, but took no immediate action on them.
Prosecutors, police and the attorney general’s office opposed SB172, saying it creates a lesser standard than is already in the law and would therefore require prosecutors to keep more and more evidence for longer periods, anticipating a possible new trial.
“This is giving the defendant a 10th or 11th bite at the apple,” said Assistant Attorney General Roy Brown.
SB156, sponsored by Sen. Roger Webb, R-Billings, requires prosecutors to disclose to the defendant any testimony by an “incentivized witness,” the criminal history of the witness, and any deals he or she has been offered for testimony.
It also says the trial judge must hold a hearing to assess the reliability of the incentivized witness and that the jury must be instructed to view such testimony with caution.
Both Marble and Richard Burkhart, who was exonerated last year on a 2001 murder conviction in Great Falls, said witnesses offered deals by a prosecutor for their testimony played key roles in their false convictions.
“Judges require foundation for scientific evidence, sometimes half-an-hour for that, but they’ll let a lying inmate hop right on the stand, and that is evidence – somebody who’s cut a deal to do it,” Marble said.
Gallatin County Attorney Marty Lambert said the bill creates an unnecessary burden on prosecutors and the courts, which already take many steps to inform defendants and juries about the nature of testimony by witnesses who may have a criminal record or connection to the crime at issue.