Judge grants Beach a new trial for 1979 crime

HELENA — There is enough evidence of innocence to order a new trial for a man who has spent nearly 30 years in prison for murder — but not enough proof yet to set Barry Beach free, a judge ruled.

Beach told The Associated Press in a telephone interview Wednesday that the decision, subject to appeal to the Supreme Court, was a huge breakthrough "after 32 years of fighting the system."

The case has gripped the small northeastern Montana town of Poplar since 17-year-old Kim Nees was killed in 1979 on a festive summer night at a popular riverside spot for teenagers to party. And it has for years been the focus of a high-profile legal fight involving some of the biggest names in Montana as Beach supporters advanced his cause of innocence.

The Montana Attorney General's office said Wednesday it hadn't yet decided if it would appeal to the Montana Supreme Court the ruling from District Judge Wayne Phillips that finds Beach's supporters had found enough new evidence to warrant a new trial. Such an appeal could take up to a year.

Beach, who has argued a gang of girls was really behind the killing on the Fort Peck Indian Reservation, said from prison Wednesday that he hopes a new trial sheds more light on the theory.

"I'm very happy, but I'm also still ready to fight. To me there's still justice for Kim Nees and there's still questions that haven't been answered yet," Beach said. "Being granted a new trial just opens all the doors and the possibilities for that to take place."

Beach in the past has been shot down with various legal attempts to gain his freedom, and was denied clemency in 2007 after the Board of Pardons and Parole held a unique hearing looking at evidence in the case.

But Beach said he felt the latest hearing last summer in Lewistown would go his way.

"From the moment I left this prison to go to Lewistown, it was just a change, it was something special," Beach said. "I felt that judge Phillips was going to grant me a new trial. My mind kind of fought with me. I had mental doubt at times, but in my heart I just kind of knew."

Phillips listened to hours of testimony from people who said a gang of jealous girls was really responsible for the crime. The witnesses included Steffanie Eagle Boy, a young girl at the time of the killing, who said she hid on a bluff and overheard the painful cries of the girls beating someone to death the night of the murder at the same location where Nees' body was found the next day.

"Of all the testimony at the evidentiary hearing, Ms. Eagle Boy's is seared on the Court's conscience," the judge wrote of his examination last summer of Eagle Boy's tearful testimony at the hearing. "Never has this Court experienced a witness who became even more emotional, even more believable during such court questioning. The Court can only say that she cried on a deeper level — she was reliving the nightmare."

Beach's original case was prosecuted by Marc Racicot, before he went onto become attorney general and then governor of Montana.

"There is not one moment of doubt ever in my mind since I have looked at this confession, and since I have been part of this case, that Barry Beach is guilty as charged," Racicot told the parole board in 2007.

Several attorneys general, including Steve Bullock, have maintained that the right man is behind bars.

Prosecutors dismissed the evidence pointing to a gang of girls as rumor that has existed since the original investigation and been built up over the years to a believable legend based upon retelling. The Associated Press last summer interviewed one of the women alleged to be one of the real attackers, Sissy Atkinson, and she adamantly denied any participation.

"Never, ever, would I do it," Atkinson said at the time.

Atkinson speculated that the women coming forward to now make the gang-of-girls allegation are attention-seekers.

Atkinson, who was under subpoena at that summer hearing, was never called to testify by Beach's lawyers.

The attorney general's office wasn't sure what its next step would be.

"We are carefully reviewing the judge's order before making a decision on whether to file an appeal with Montana's Supreme Court. There are important legal issues involved in this case," said Judy Beck, spokeswoman for the Montana Attorney General's Office. "We remain committed to finding justice for the victim, Kim Nees, and her family."

Beach was convicted in 1984 largely based on a confession he gave to Louisiana police when he was picked up in that state for suspicion of a different crime. The detectives learned that Montana authorities considered Beach a person of interest in the Nees killing, and obtained permission to interrogate Beach.

Beach's attorneys say the confession was coerced and contains the sort of errors that show it was fabricated by the police. The original audio recording of that confession was long ago destroyed, as was other potential evidence in the case.

The detectives testified several years ago at Beach's failed clemency hearing and argued that the confession was real, and Beach's guilt obvious. Prosecutors point out the detailed confession — where Beach describes getting angry at Nees for resisting his advances before killing her with a tire iron — withstood the rigors of the original trial and convinced a jury of Beach's guilt.

That transcribed confession, taken long ago in a Louisiana police station, again would likely form the basis of the state's case at a new trial. And that confession, along with other testimony from this past summer hearing that a man who could have been Beach was seen in a pickup that night with Nees and four other girls, prevented the judge from setting Beach free and vacating the charges against him.

"However, the totality of the evidence is clear and convincing enough to rule that Mr. Beach has certainly opened the actual innocence gateway sufficiently enough to walk through the miscarriage of justice exception toward a new trial," the judge wrote in a 30-page analysis of the case.

The judge's order, filed Wednesday, calls for a new trial in Beach's home of Roosevelt County, a place where locals and relatives still argue about the case.

Beach attorney Peter Camiel, who has worked with a team that has spent years combing over possible evidence in the search to prove Beach's innocence, said the state's prosecution at a new trial will have to come down to the credibility of the confession. He pointed out Nees bloody clothes have long ago been lost, and other evidence just does not exist.

"Assuming this judge's order holds up in the Supreme Court, it is like starting out all over at trial," Camiel said, adding the judge's lengthy review of the witnesses from last summer is a huge help for Beach. "The judge went into a lot of detail into the credibility of our witnesses. And that is very, very important because this judge's finding of facts will be important when the Supreme Court reviews it. We are glad he took the time to get into that amount of detail."