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Barry Beach

Fort Peck Reservation, MT

On June 11, 2014 a three member panel of the Montana Board of Pardons and Parole, including its Chairman, shockingly denied Barry Beach’s application for Executive Clemency in a vote of 3-0. That decision defied logic and goes against the overwhelmingly widespread popular and political support for Barry’s freedom throughout Montana and the nation.

Most important among Barry’s legion of supporters is Steve Bullock, the current Governor of Montana. On April 23, 2014, in an unprecedented step, he wrote a letter to the Board describing in detail why he would like the Board to recommend clemency for Mr. Beach for his executive order. The Governor historically never takes any action until he receives the Board’s recommendation.

Other high powered advocates for Barry include political rivals, Democratic U.S. Senator Jon Tester and retired Republican U.S. Senator Conrad Burns; the lone current Montana Congressman Pat Williams; former Montana Governor Brian Schweitzer; and retired Montana State Supreme Court Justice James Nelson.

It should also be noted that during Barry’s 18 months of freedom (December 7, 2011–May 15, 2013), he lived a fully employed, productive, and community involved life in Billings. The Mayor of Billings, Thomas Hanel, a retired 20 year veteran of the Billings police force, wrote a strong letter to the Board urging it to return Barry to Billings because Mr. Beach had “earned my trust” and “proved himself a useful citizen”.

At the public hearing conducted by the Board on April 29, 2014, 23 citizens from across the state spoke movingly about the positive impact Barry had on them personally, on their families, and in the community. Only one person dissented. He was the District Attorney of Flathead County who never met Barry nor had any direct familiarity with his case.

The denial precluded Governor Bullock from receiving the Beach petition. We remain determined and optimistic that we will be able to secure his freedom some day in some way. Our fight for Barry’s freedom continues unabated and undiminished in spirit.

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In June 2007, the Montana Board of Pardons and Parole conducted an extraordinary and unprecedented series of hearings in the Barry Beach case. The hearing, held at the Montana State Prison in Deer Lodge, was the three day “actual innocence” phase before a panel of three members of the Board. The attorney General’s office represented the State of Montana and Barry was defended by CM and Seattle based attorney, Peter Camiel. The objective was to determine if Barry Beach was factually innocent of the 1979 murder of Kimberly Nees which occurred in the town of Poplar on the Fort Peck Indian Reservation in the northeast corner of the state.

The Board, in essence, challenged CM and Mr. Camiel to “prove” Barry’s innocence. Again, without DNA, as you can imagine, this was a Herculean task. Placed on this stratospheric level, the bar was set well above the normal standard of “reasonable doubt”. We suspected we were being set up for failure, but we eagerly accepted the challenge.

We are not naïve. We expected the Board to deny Mr. Beach a pardon based on innocence, but we believed that we certainly could plant seeds of doubt in the Board’s mind concerning Barry’s guilt which ultimately would produce a decision by the Board that Barry’s sentence be commuted to time served or at least grant him parole.

However, much to the surprise of CM and the many who attended both the Actual Innocence Hearing and the subsequent Commutation Hearing, the Board denied Barry’s application for a pardon and his petition for Commutation and/or parole.

Since Barry’s sentence is 100 years without parole and therefore is not a capital case, by Montana law the Governor cannot intervene in any non-capital case wherein the Board denies an inmate’s application for a pardon or commutation.

It is one thing to be denied fair and square, but it is quite another when one sees that the Board’s decision was based on numerous misstatements of facts and laced with derisive comments concerning the seven year investigation by CM. Lamentably, a portent of what was to come occurred when, prior to the hearings, we asked the chairperson of the three member board to recuse herself since she was the niece of one of the two prosecutors at Barry’s original trial. This prosecutor was also the elected D.A. of Roosevelt County at the time of Barry’s arrest and trial. This Board member refused to step down.

The Crime

Kim Nees was a lovely 17 year old who had just graduated from high school prior to her June 1979 murder. She was viciously assaulted while sitting in the drivers’ side of the cabin of her pick up truck which was parked in an area where kids would drink, smoke pot, and party until late at night. During the attack, she was pulled out of the passenger side door where the bludgeoning murder was concluded some 10 feet beside the vehicle. Her 120 pound body was then carried almost the length of a football field along a trail that contained three sets of different foot prints, none of which were Barry’s. Kim’s fully clad body was then deposited in the Poplar River where she was found by police at the break of dawn.

The case went unsolved for 3½ years. Barry was one of many classmates questioned by the police. As it happened, Barry and his family lived on the same block as the Nees family and Barry had dated Kim’s younger sister, Pam.

The Bloody Palm Print

Heavy blood spattering and smears were found throughout the cabin of the pick up truck. A clear bloody palm print was found above the door handle on the exterior of the passenger side door. The FBI concluded that this print belonged to one of the killers. If the owner of this print could be identified, the case would break wide open. The forensic evidentiary value of the print was considerable and critical to solving the case. The lead Roosevelt County investigator, Sherriff Dean Mahlum, in his written communications to the FBI asking them to compare the prints of various suspects to the prints lifted at the crime scene by the FBI, would always add “we are particularly interested in the bloody palm print recovered by the passenger door”.

To date, the owner of this bloody palm print has never been identified. A number of people’s prints, including Barry’s and Kim’s were compared to it with negative results. For the 3½ years prior to Barry’s arrest, this print was of primary importance to the investigation. Investigators reconstructed how the crime unfolded based on the blood trail in and around the cabin of the pick up truck; and with sound reasoning believed that one of the killers pulled Kim from the cabin and then closed the passenger door, transferring Kim’s blood on his/her hand onto the door when closing it.

A prime example of the many misstatements of facts by the Board in its decision centers on the bloody palm print. Not knowing what to do with this forensic reality that excluded both Barry and Kim, the Board fraudulently stated in its opinion that the bloody hand print “has little probative value….neither Kimberly Nees nor Barry Beach could be included or excluded as possibilities of those who left the print….Barry Beach could have left the print as he was attacking Kimberly.” This conclusion by the Board flies in the face of documented evidence presented at the hearing.

One example is an FBI report that was submitted to the Board which clearly states that “It is noted that the crime scene investigation developed a bloody palm print on the passenger side of the victim’s vehicle which was identified as not belonging to either Kim Nees or Barry Beach.”

No eyewitness has ever stated that Barry was seen out and about town on that fateful Friday night and this fits with Barry’s insistence that he was home in bed asleep at the time of the crime. No forensic evidence connected Barry to the crime scene. The prosecutor mocked the three sets of foot prints in the path that led from the vehicle to the river and the bloody palm print as “having no value whatsoever” and “means nothing” and “doesn’t provide a clue” to the investigation. A blind eye was now cast on this forensic evidence that was so important to the investigation prior to Barry’s arrest. Despite the fact none of this evidence connected Barry to the crime, and in fact excluded him from the crime scene, it was still viewed as worthless to the Board.

Barry Beach’s Confession

While visiting his father in Louisiana in early 1983, Barry’s step mother, wrongly believing Barry was encouraging her daughter to run away, had Barry arrested by the local Ouachita Sheriff’s department. To make matters worse, she also told the sheriff that Barry was a suspect in a Montana murder. To make a long story short, on the fourth day of incarceration, two Sheriff Investigators conducted an uninterrupted interrogation for seven hours (without food) which finally yielded a confession by Barry to the murder of Kim Nees. At Barry’s trial, the only evidence presented to the jury was a recitation of the recanted Beach confession by Louisiana investigators. No tape was played since the original had been erased by the Louisiana police.

Barry’s confession narrative demonstrated an ignorance of the crime scene and how the crime unfolded. As an example, Barry had himself going back and forth from the vehicle to the river making multiple trips to throw different items of evidence into the river. In his confession Barry had no idea that the vehicle was 256 feet from the river and would have required a 500 feet round trip journey. First he said he threw the murder weapon into the river (never found); then the victim’s jacket (never found); then the keys to Kim’s truck (never found); and then he put the body in a black plastic garbage bag and “drug it [the body] over to the edge of the river bank and pushed her off.” He didn’t know that he would have had to have carried her body 256 feet to the river, push it down the 20 foot embankment and then climb down the embankment to put her body in the river where she was found. There was no sign or remnant of a garbage bag at the crime scene.

These are but a few of the elements of Barry’s confession that were totally inconsistent with the crime scene. Dr. Richard Leo, a police interrogation and false confession expert, testified at the Board hearing. He described in detail how the many elements of Barry’s confession did not “fit” the crime scene nor did the confession reveal any information that only the killer would have known. Because of these factors, Dr. Leo concluded that the confession was “unreliable” and did not have within it any information that demonstrated knowledge of the crime that was not generally known to the public.

The Board’s decision contained multiple misstatements of facts concerning Barry’s confession. The Board stated that “nothing from the confession conflicted with the actual crime scene”; that the confession was “consistently in keeping with the actual physical evidence… in supreme detail”; that “the confession statement is compelling self-authenticating when compared with the crime scene”; and that there is “nothing within the statement that suggests innocence”.

What the Board’s Decision Really Says

It is quite obvious from reading the Board’s decision that it had no intention of granting Mr. Beach any relief from the outset. At the public hearing on Commutation not one dissenting voice was heard. Eighteen witnesses spoke on behalf of Barry. Most of them traveled long distances to do so. One came from Arkansas to tell how Barry saved her life from other inmates when she was a corrections officer at a Tennessee prison where Barry was housed. Another was the former two term mayor of Poplar and 30 year President of Poplar’s Chamber of Commerce who, even though he doesn’t know Barry, urged his release due to the general belief by the Poplar community that Barry was falsely convicted.

The Board universally adopted as its findings of facts those proposed by the Attorney General’s office and adopted none offered by Mr. Beach’s defense team. No credit was given to any of the 16 Beach fact witnesses at the Innocence Hearing nor was any credit allowed for the 18 Beach Commutation witnesses. Both CM presentations were “schneidered” by the Board. The deck was truly stacked against us. The Board clearly overplayed its hand by not granting Mr. Beach one iota of validity. Every point raised in the Board’s decision favored the State and did so in a derisive tone towards the Beach defense. Thus, the mask of balance, fairness, and open-mindedness was removed; in its stead a heart and mind filled with prejudice and resentment towards those who advocated and testified for Mr. Beach was revealed.

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 In March of 2008, NBC Dateline broadcasted a two hour feature on the Beach case titled, The Killing at Poplar River and narrated by Keith Morrison. It has been rebroadcasted many times since by MSNBC and other cable stations. (http://www.msnbc.msn.com/id/23958961/ ).

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Developments Since 2007

In January 2008 CM filed a petition for post conviction relieves based on newly discovered evidence. Beach’s petition was summarily denied by the local Roosevelt County judge. Without conducting an evidentiary hearing to assess the credibility of the new evidence developed by CM, the judge ruled that the petition was procedurally and time barred.

He also relied exclusively on the prosecutor’s view of the case by stating “the prosecutor’s brief shows the prosecution has thoroughly reviewed the evidence…had this shown that Beach was truly innocent, the prosecutor would be morally and ethically bound to see that justice was done.”

The judge allowed the prosecution to be the arbiter of the truth of the matter. Needless to say, we appealed the opinion to the Montana State Supreme Court, and in November 2009 the court issued its opinion reversing the judge’s denial of the Beach petition. Admonishing the Roosevelt County judge, the State Supreme Court chastised him by saying “Our system of justice depends on an independent judiciary undertaking an independent evaluation of … claims presented by the parties before a court. The judiciary cannot abdicate its responsibility to undertake an independent evaluation based upon the court’s deference to the State’s perceived adherence to moral and ethical obligations.”

The court remanded the case back to the local judge instructing him to conduct an evidentiary hearing in order to properly evaluate the new evidence presented by Mr. Beach.

At Mr. Beach’s request, the Montana Supreme Court relieved the Roosevelt County judge from the Beach case. A new judge was appointed to over see the case in May 2010. In August 2011 an evidentiary hearing was conducted by the new judge, The Honorable E. Wayne Phillips. At the conclusion of this hearing, Judge Phillips announced that he would issue his decision sometime before Thanksgiving 2011.

On the very eve of Thanksgiving 2011, Judge Wayne Phillips of Lewistown, Montana tossed aside Barry Beach’s conviction, granted him a new trial, and ruled that by “clear and convincing evidence a jury could find that Barry Beach is actually innocent of his crime”.

Of the many witnesses that CM presented to the judge, he focused on nine of those he carefully listened to and questioned during the post conviction evidentiary hearing he conducted this past August. These witnesses testified to receiving chilling confessions from three of the “gang of four girls” who savagely beat the victim to death on the Fort Peck Indian reservation in 1979.

One of these witnesses, then 10 year old Steffie Eagleboy, was a witness to the crime. She heard the victim pleading for help as the female assailants were yelling to each other to “get the bitch”. While on the stand Miss Eagleboy broke down in tears while telling Judge Phillips how she has had to endure “nightmares all my life about it”. The judge stated in his opinion that her testimony “is seared on the Court’s conscience” and “never has this Court experienced a witness who became even more emotional, even more believable during such Court questioning”. 

The judge declared the testimony of these witnesses, individually and collectively, to be extremely believable; and “although not scientific like DNA”, it is nevertheless, “more than sufficient objective credibility” to allow Mr. Beach to “pass through the actual innocence gateway”.

A bail hearing occurred on December 7, 2011 and after 29 years of false imprisonment, Barry Beach was released on his own recognizance.

In May of 2013 The Montana Supreme Court overturned Phillips decision challenging the credibility of witnesses they had not observed. This stunning turn of events meant Barry Beach returned to prison to serve his 100 year no parole sentence.

This case is another of the all too frequent convictions of the innocent based on a false confession extracted by law enforcement in their zeal to convict someone for odious violent crimes so that they can look good to the public and to each other.

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Freed In 2011, Wrongfully Incarcerated Again In 2012

On December 7, 2011, after 30 years of wrongful incarceration, Barry Beach was released and granted a new trial. Following an evidentiary hearing ordered by The Montana Supreme Court, Judge Wayne Phillips ruled that by “clear and convincing evidence a jury could find that Barry Beach is actually innocent of this crime.” In May of 2013 The Montana Supreme Court overturned Phillips decision challenging the credibility of witnesses they had not observed. This stunning turn of events meant Barry Beach returned to prison to serve his 100 year no parole sentence.

A bloody palm print (concluded by The FBI to be the killers) and 3 sets of footprints leading from where the attack occurred to where the victim Kimberly Nees’ body was found, do not match Barry or Kimberly Nees. Nine witnesses testified to receiving confessions from three of the four girls who claimed they savagely beat Kimberly Nees to death. Barry was coerced into a false confession, given after 7 hours of continuous interrogation with no food, despite providing no information not known to the public and several inconsistencies with the crime scene. The interrogation and confession were recorded, however prior to trial the Louisiana Police erased the recording.

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