Beach hearing on murder evidence ends; judge to study case for later ruling

2011-08-03T12:30:00Z 2014-08-25T14:30:10Z Beach hearing on murder evidence ends; judge to study case for later rulingBy GREG TUTTLE Of The Gazette Staff The Billings Gazette
August 03, 2011 12:30 pm  • 

LEWISTOWN -- A hearing into whether Montana State Prison inmate Barry Beach should receive a new trial for the 1979 slaying of a Poplar teenager ended here Wednesday with some procedural issues left to be decided.

Fergus County District Judge E. Wayne Phillips closed the hearing at 1:30 p.m. after giving attorneys for Barry Beach and the Attorney General's Office until Oct. 14 to file briefs on the scope of evidence he should consider.

Phillips will issue a written ruling sometime after that date.

The early end of the hearing that began Monday and was scheduled to last five days marked the latest effort by Beach to prove his innocence for a murder he says he didn't commit.

In 2007, the Montana Board of Pardons and Parole denied a Beach petition for executive clemency. Other efforts to appeal his conviction have failed.

Beach, 49, has served 27 years of a 100-year sentence without the possibility of parole for the 1979 murder of 17-year-old Kim Nees.

Beach and his attorneys argue that new evidence, unavailable at the time of his 1984 murder trial, proves he did not kill Nees. That evidence, which was the focus of the hearing before Phillips this week, suggests a group of jealous teenage girls beat Nees to death.

Beach claims that he gave a false confession to the crime when he was arrested in Louisiana, and none of the physical evidence ties him to the murder. His case is being supported by Centurion Ministries, a New Jersey-based organization that works to free wrongfully convicted prison inmates.

Beach also says his right to a fair trial was violated by his court-appointed attorney and the prosecutor. Much of the hearing Wednesday focused on legal arguments about whether Phillips should consider those constitutional claims at this stage of the case.

Phillips said he will first decide whether there is sufficient evidence to support a new trial for Beach. The hearing into that issue was ordered in a ruling by the Montana Supreme Court, which found a previous judge failed to clearly state why he denied Beach's petition for a new trial.

In order to make his decision, according to the Supreme Court order, Phillips must make several findings, including:

-- The evidence was discovered since Beach's trial.

-- The failure to discover the evidence sooner was not the fault of Beach.

-- The evidence is material to the murder case.

-- The evidence must not be cumulative or simply impeach prior evidence.

-- And the evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome.

Wednesday's session began with the cross-examination of Kevin Hall, who said one of the women who Beach contends was involved in the murder discussed the killing years later. That woman, Sissy Atkinson, did not testify at the hearing.

Hall admitted to Assistant Attorney General Brant Light that he was a chronic drug user whose memory was hindered by a 1996 brain injury. He also agreed that he has a criminal history stretching back to the early 1970s.

"In 1982 you were sentenced to Montana State Prison, weren't you?" Light asked Hall.

"Yes, by your office," Hall told the former Lewis and Clark County prosecutor.

Hall said he had been free of drugs for five years, and his memories of the statements he said were made by Atkinson about her involvement in the Nees murder were clear.

Beach's attorney, Peter Camiel, of Seattle, then called a Great Falls man who said Atkinson threatened him in 2004 or 2005. Atkinson was a neighbor, Michael McIntire said, who sold drugs from her apartment.

McIntire said he complained to the woman about the illegal and dangerous activity.

"She looked me straight in the face and said I didn't know who I was messing with, that she had killed a girl up on the reservation and she could kill me, too," McIntire testified.

McIntire didn't report the threat until years later after seeing a television documentary about the case, he said.

Former Roosevelt County Undersheriff Dean Mahlum, who was the lead investigator on the case nearly three decades ago, was the last witness called.

He was called as a witness by the attorneys both for Beach and the state.

Mahlum said the wounds suffered by Nees pointed to a single attacker, not a group of attackers as asserted by Beach.

Mahlum said Nees suffered at least 20 wounds to her head and defensive wounds to her hands, but there were no other wounds to indicate she had been kicked or struck anywhere else on her body.

Mahlum told Assistant Attorney General Tammy Plubell that Atkinson and two other women identified by Beach as the killers were initially considered possible suspects, but no evidence was found to implicate them.

After Beach's attorneys rested their case, Light and his co-counsel, Assistant Attorney General Tammy Plubell, told Phillips they had no other witnesses to call.


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