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No redemption

Montana Supreme Court denies Barry Beach's latest chance to prove his innocence

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On a recent evening in Billings, Barry Beach sifted through stacks of handwritten notes in his garage. They were bundled and meticulously sorted by era and by which prison he was housed in during his 29 years behind bars.

"Very special stuff in this tub," Beach said. "This here actually holds all the letters that were written to me while I was in the Louisiana jail when I was first arrested."

There were other bins holding other mementos from Beach's life. He still had his childhood baseball mitt and Boy Scout's manual, along with his Little Britches rodeo outfit. In another bin were reams of press clippings that detailed his long legal fight. The clippings were stored alongside a faded copy of a list of Poplar High School's 1979 graduates. "There's Kim's name right—Kim Nees right there," he said, pointing to the yellowed paper. "I keep that as a memorial to her."

It was 30 years ago this month, on May 3, 1983, that prosecutors charged Beach with deliberate homicide for the murder of 17-year-old Nees on the Fort Peck Indian Reservation.

A jury found Beach guilty. He received 100 years in prison with no chance of parole. However, in an unusual move, a district court judge in 2011 freed Beach after reviewing new evidence that could alter the verdict if presented to a jury during a new trial. The evidence hinged on an alternative theory that a group of young women killed Nees.

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The Montana Attorney General's Office appealed the district court's decision.

For the past year and a half, Beach has been out of jail and a productive member of society. He had a full-time job. He made regular public speaking appearances. He talked about wanting to buy a house. He wanted to travel, although the terms of his release mandated that he get advanced permission before leaving Montana. He knew there was a looming uncertainty that the Montana Supreme Court, at any time, could either send him back to prison or uphold the district court's decision to grant him a new trial.

On May 14, he received the news. He was likely heading back to prison.

"I don't understand," he said to a reporter who delivered the information. There was a long pause. "I need to make a few phone calls."

•••

Peter Camiel, Beach's attorney, learned of the Montana Supreme Court's 4-3 decision just after leaving a court appearance in Washington state. When the Independent contacted him on his cellphone, he was rushing back to his office to digest the court's 93-page document and identify what it will mean for his client. His initial reaction was that Beach would be remanded into custody to continue serving out his 100-year sentence.

"I think that probably the Attorney General's Office will seek an order or a warrant to have him remanded into custody," Camiel said. "It could be right away."

Camiel said that he and his colleagues will regroup this week to evaluate their next course of action, potentially appealing the Montana Supreme Court's decision in the federal judicial system. "We have to go through our options," he said.

PHOTO BY CATHRINE L. WALTERS
  • photo by Cathrine L. Walters

The State Supreme Court's decision sides with the Montana Attorney General's Office in its appeal of the 2011 district court order for a new trial. The state's highest court opined that Beach's new evidence "was not reliable" and that the lower court erred when it allowed Beach to go free. Specifically, the decision noted that key evidence contradicted the theory that a group of women killed Nees and that her injuries were consistent with those of a single attacker.

Justices Jim Rice, Beth Baker, Laurie McKinnon and District Court Judge Richard Simonton, who sat in place of Chief Justice Mike McGrath, voted with the majority. (McGrath recused himself because during his tenure as Attorney General his office prosecuted Beach).

"Beach's new evidence—in the form of testimony that is primarily hearsay, internally inconsistent, and inconsistent with evidence presented at Beach's 1984 trial—does not reliably displace the evidence tested at Beach's trial, including his confession," Supreme Court Justice Jim Rice wrote for the majority.

Justice Brian Morris wrote the Supreme Court's dissent, with Justices Patricia Cotter and Michael Wheat concurring. They argued that the district court is better positioned than they are to determine the credibility of Beach's new evidence.

Morris struck a bittersweet tone when noting that Beach would not be granted a new trial. "This ruling marks what will likely be the final chapter in the saga of Barry Beach," he wrote. "We oversee a criminal justice system that seeks to resolve a defendant's guilt through processes created and administered by humans. Humans, by nature, are fallible and the processes that humans create share this same fallibility."

The license plate on Barry Beach’s 1996 Ford Ranger. - PHOTO BY CATHRINE L. WALTERS
  • photo by Cathrine L. Walters
  • The license plate on Barry Beach’s 1996 Ford Ranger.

Morris went on to quote a 1953 precedent in his conclusion: "We are not final because we are infallible, but we are infallible only because we are final."

•••

The mood among Beach's scattered supporters on May 14 was in stark contrast to that of Dec. 7, 2011, when Beach walked out of the Fergus County Courthouse to a cheering crowd and reporters from Montana, Germany and Canada. Back then, cameras flashed and Beach gave interviews. His family and friends hugged him. Signs at a reception held for him a few blocks from the courthouse welcomed him home.

"I was so overwhelmed," Beach said.

Too busy to eat at the reception, Beach's first meal was a McDonald's Quarter Pounder with Cheese, fries and a strawberry milkshake.

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