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Shadows of a doubt

Barry Beach gets a chance to finally make his case

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Just three days shy of the 28th anniversary of Kim Nees’ brutal murder, Barry Beach will have a chance to convince the Montana Board of Pardons and Parole (BOPP) that he is a wrongly convicted man.

The public hearing for the man serving a 100-year sentence for Nees’ 1979 murder will begin June 13 and run “as long as it takes,” according to BOPP Executive Director Craig Thomas. Following Beach’s request for executive clemency, the board granted the hearing despite opposition from the Montana attorney general’s office.

“It is rare and there has to be some compelling reasons to set a public hearing,” says Thomas, who explains that executive clemency is forgiveness offered by the state in the form of a pardon or sentence commutation that the board can recommend, but only the governor can grant.

Peter Camiel, Beach’s attorney through Centurion Ministries, a New Jersey nonprofit organization that investigates potentially wrongly imprisoned inmates, argues that the jury’s conviction of Beach was woefully mistaken.

At the age of 21, Beach was convicted of killing his Poplar classmate and neighbor, 18-year-old Nees, at a popular hangout on the fringes of town and dumping her body in the Poplar River. Although a plethora of evidence from the crime scene didn’t match his DNA—in fact, no physical evidence has ever tied Beach to the scene—he was convicted based largely on a confession of guilt Beach made to Louisiana detectives that Beach insists was false and coerced. Centurion also argues that misconduct on the part of special prosecutor Marc Racicot, who later became governor, contributed to Beach’s conviction. Additionally, Centurion’s investigation of the case over the last several years has yielded evidence suggesting it was a group of teenage girls, not Beach, who killed Nees. All of those arguments and more will be aired at the upcoming hearing, Camiel says, in an effort to convince the board that Beach is innocent of the crime and should be set free. After nearly 28 years, dozens of people who share a connection to the Beach case—ranging from Racicot to the Louisiana detectives to the women some have implicated in the crime—will gather in the same room to air their evidence and experiences at a trial-like hearing. Discredited former Montana forensic scientist Arnold Melnikoff, who played a role in linking Beach to the crime, has also been subpoenaed to appear.

“It is remarkable that here we are, all these years later, still trying to figure out who’s responsible for this crime,” Camiel says.

As the hearing draws near, a handful of developing issues beyond the scope of Beach’s claim of innocence bear relating.

Request for recusal
Some people call Montana a small town with long streets, and with good reason. In April, Centurion Ministries asked Teresa McCann O’Connor, a BOPP member who will serve as chairwoman for the Beach hearing, to recuse herself from the clemency hearing because she’s the niece of James McCann, a former Roosevelt County Attorney who assisted in Beach’s prosecution and trial.

In a letter supported by other board members, O’Connor replied that she will not recuse herself: “I have no intention of doing so. I am required to make no showing of justification whatsoever. I will volunteer, however, that I have never discussed the Beach trial with my uncle. And I have had no conversation whatsoever with him since the funeral of my grandmother in February of 2002, now more than five years ago.”

“I respect Teresa McCann O’Connor’s decision not to step aside,” Camiel responds, “but we just felt like we had to at least raise the issue and make sure everybody is aware of it…I truly have no reason to believe we’ll get anything less than a fair hearing, but we couldn’t ignore the issue. If Barry Beach had a family member on the board, I think the attorney general’s office would be fairly concerned too.”

Made up of seven members appointed by the governor, the BOPP plays a key role: if it decides Beach is innocent, it could pass a recommendation on to Gov. Brian Schweitzer that Beach be pardoned, but if not, Beach’s request dies. Besides the path of vindication a pardon could offer, the board could also recommend a reduction in Beach’s sentence or the possibility of parole.

O’Connor declined to comment for this story, and Centurion Ministries founder Jim McCloskey didn’t offer comment beyond saying: “It’s not personal, but this is very serious business. After all, a man’s freedom is at stake. We accept her word that she’ll be an objective fact finder.”

News from down South
Beach’s confession to Louisiana detectives is a key issue in the cases of both Centurion Ministries and the Montana attorney general’s office, and it will constitute a main focus at the hearing. Richard Leo, a national expert on false confessions, will be on hand to explain the broader phenomenon of innocent people falsely confessing to crimes; nationally, false confessions account for 25 percent of cases where exonerations were later made based on indisputable DNA evidence. In Beach’s case, Centurion Ministries will emphasize the fact that a wide variety of details about the crime—such as what Nees was wearing, how the murder unfolded and whether she was choked as well as beaten—were flat-out wrong in Beach’s confession.

On the other hand, according to its petition arguing against Beach’s clemency application, the state will argue that Beach’s confession corroborates many of the facts on the ground. It also argues that appeals courts have upheld the legitimacy of Beach’s confession through the years, and consequently the board shouldn’t consider his claim that the confession is false.

But aside from the Beach confession itself, recent developments in an old homicide case in Louisiana will come into play at the hearing.

In April, the News Star in Monroe, La., reported that the long-cold murder case of Kathy Jean Whorton, an 18-year-old killed in 1981, had been cracked. DNA evidence from that crime was recently linked to Anthony Wilson, a convicted sex offender picked up for a parole violation, who had never before been connected to the crime.

Wilson’s arrest represents a fascinating development in the Beach case, because when Beach was arrested and later convicted, Louisiana detectives implicated Beach in the death of Whorton and two other Louisiana murders around the same time. Former Louisiana detective Jay Via testified that Beach’s attorney at the time, Paul Kidd, had relayed Beach’s involvement to them—a claim Kidd adamantly denies and will testify about at the upcoming hearing—although Beach was never ultimately charged. Six months later, Via and other detectives also extracted two separate confessions to the Whorton murder from infamous serial killers Henry Lee Lucas and Ottis Toole, although those confessions were found to be false.

“What we think this shows is these detectives have a history of extracting false confessions,” Camiel says. “And in this case, it’s for the very same murder they were trying to blame on Barry.”

In-state developments
Since Beach filed his clemency application in August 2006, Centurion Ministries has brought forth new evidence it claims supports Beach’s innocence. Apart from its efforts to demonstrate that Beach’s confession was false and no other evidence links Beach to the crime, Centurion Ministries also has gathered witnesses and evidence suggesting a group of teenage girls—including Sissy Atkinson, Maude Grayhawk and Joanne Jackson, who have all been subpoenaed to appear at the upcoming hearing—committed the crime. All three have denied their involvement to numerous investigators, although a number of witnesses say they’ve heard Atkinson and others spill confessions or brag about getting away with the “perfect crime.” Recently, Centurion Ministries obtained what Camiel calls “powerful evidence” that calls into question the state’s theory of how Nees died.

In early 2007, Atkinson’s brother J.D. gave a sworn statement that Sissy told him she was involved in Nees’ murder and that Beach is an innocent man.

“I am coming forward now with this information because I believe that Sissy has been keeping dark secrets in her heart about Kim’s death for all these years and it has ruined Sissy’s life,” his statement reads in part.

Camiel says J.D. Atkinson’s testimony at the hearing will offer a compelling alternative to the prevailing account of Beach’s involvement.

“Here’s Sissy’s own brother indicating that she admits being down there when Kim was killed—he has absolutely no reason in the world to make this up,” he says.

The hearing
Although witness lists have yet to be finalized, the clemency hearing promises to be a gripping affair, to be held at the Montana State Prison from 8 a.m. to 8 p.m. for at least two days. Camiel says he’s planning to present about 18 witnesses, ranging from high-profile figures like Racicot to others including Beach’s mother, all of whom will be subject to cross-examination. Lynn Solomon, spokeswoman for the attorney general’s office, declined to comment prior to the hearing beyond arguments offered in the document the state filed in opposition to Beach’s clemency application.

“We’ll present our case at the hearing,” she says.

The state initially argued the BOPP shouldn’t even grant Beach a hearing, saying his application lacks credibility because much of it is based on hearsay and courts have repeatedly upheld his conviction (Camiel responds that procedural time limits have prevented any court hearing substantive issues in the Beach case.)

Attorney General Mike McGrath’s contention is that Beach hasn’t established his innocence, and McGrath cautioned the BOPP against releasing him from prison.

“While it is indeed a travesty for an innocent man to spend his life in prison, it is a greater injustice for a guilty man to be set free when his victim and his family can never be set free from her brutal death,” he argues.

Camiel retorts that a wide variety of evidence—such as the existence of 28 sets of fingerprints from the crime scene that haven’t been matched to anyone, including Beach—and witnesses raise significant questions about whether the jury wrongly convicted an innocent man who has now spent more than half his life in prison.

“The thought that it’s okay for an innocent person to sit in prison for the rest of his life out of concern that a guilty man may go free is just totally abhorrent,” he says. “I would think the attorney general’s office would be interested in the truth rather than technicalities.”

During a June 2 visit at the Montana State Prison, Beach seemed upbeat about his approaching hearing, the culmination of decades of effort and Beach’s first hearing since 1984.

He says it’s hard for him to put into words how he feels about this opportunity to make his case, or what it will be like to have friends, foes and everyone in between gathered at the prison to weigh in on his future. One thing’s for sure, he says: “I’m ready for it.”

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