Helena Independent Record

Group alleges Poplar man innocent of 1979 murder

By JENNIFER McKEE - IR State Bureau - 08/26/06

HELENA — A New Jersey innocence group has asked Gov. Brian Schweitzer to free a Poplar man who has been in prison for more than two decades for a murder they say the man didn’t commit.

The group, called Centurion Ministries, argues that former Gov. Marc Racicot — then the state’s special prosecutor in the attorney general’s office — was guilty of prosecutorial misconduct in the man’s 1984 trial.

“We’re really hopeful that (Schweitzer) will look at it and give it serious consideration,’’ said Peter Camiel, a Seattle lawyer who has been working with Centurion Ministries on the case for about five years.

Racicot, reached by phone Friday, said the case has been appealed to numerous courts, which have always upheld the conviction.

Sarah Elliott, a spokeswoman for Schweitzer, said the governor’s office received the group’s lengthy application for clemency last week. The governor’s office will review it, but has not had enough time to do so, yet.

The case involves Barry Beach, who has been behind bars in Montana since 1984 when a jury found him guilty of killing 17-year-old Kimberly Nees five years earlier.

Nees’ body was found floating face up in the Poplar River on the morning of June 16, 1979. Her father’s pickup truck, the cab of which was covered in blood, was about 250 feet away. A bloody hand print was on one of the doors. Footprints were found along the path where the killer dragged her body to the river.

Beach was not questioned about the crime, according to Centurion’s investigation. Two weeks later, he went to spend the summer with his father in Monroe, La. That fall, after Beach returned home, a Roosevelt County sheriff’s officer interviewed him for the first time about Nees’ murder, but he was not charged.

According to the Centurion investigation, Beach, then 17, had spent that day swimming in the Poplar River with friends at a popular swimming hole far from the murder scene. Beach got his car stuck in the sand by the riverbank and walked back into town, where he came home to an empty house, ate something and went to bed. He was sleeping when his mother came in, who told police she checked on her son early in the morning on June 16 and he was asleep in bed still wearing the clothes he wore the day before.

Five years later, Beach was back in Louisiana. He was picked up by local police for contributing to the delinquency of a minor, a misdemeanor. While he was being questioned, police brought up several other murders in Louisiana and Nees’ murder in Montana.

In conditions Camiel described as “very unusual,’’ the Louisiana investigators prayed with Beach, threatened him and described in detail death by Louisiana’s electric chair, the Centurion report shows.

Beach eventually confessed to killing Nees, although Camiel and the Centurion investigation allege Beach’s confession did not match the evidence found at Nees’ murder scene.

Camiel and the Centurion investigation assert Beach’s confession was false. About 25 percent of the people exonerated by the Innocence Project, a similar group that works to exonerate people sentenced to death, gave false confessions, Camiel said in an interview Friday.

Racicot, however, said Beach’s confession was legitimate.

“Barry Allen Beach confessed to authorities,’’ he said. “That’s pretty convincing evidence.’’

The bloody hand print on the door of Nees’ father’s truck was never explained; it did not belong to either Nees or Beach. Nor were the footprints ever explained.

Camiel and the Centurion report say the case had many other problems, among them Racicot’s alleged prosecutorial misconduct. Prosecutors are not supposed to bring up to juries evidence that cannot be admitted into court. In this case, according to the Centurion investigation, Racicot did.

Racicot told the jury that one of Beach’s pubic hairs was found on the sweater Nees was wearing when she was killed, according to the report.

That was based upon an analysis by Arnold Melnikoff, then a scientist at the Montana State Crime Lab who specialized in hair analysis. Melnikoff later took a similar job at the state of Washington, where his hair analysis was widely discredited.

In this case, the hair in question and Melnikoff’s report were never admitted as evidence. Melnikoff never testified at the trial.

The hair could not be admitted as evidence, the Centurion report concluded, because authorities could not prove they had always had ownership of the hair.

Talking about inadmissible evidence at a trial is prosecutorial misconduct, the Centurion report alleges.

The hair today cannot be located, Camiel said, so investigators cannot conduct a genetic test on the hair to determine if it actually did belong to Beach.

Racicot, who has not read the report, said he could not remember the details of a case he prosecuted 22 years ago. But he said that if evidence could not be admitted, it wasn’t.

“Frankly, I think the case was strong and the jury was correct and the courts that have approved the proceedings were also correct,’’ he said.

The Centurion investigators have also gathered statements from people who said other Poplar residents — a group of rough teen-aged girls — confessed to them about killing Nees.

The group’s report includes these statements, but no confession from a would-be killer.

Beach’s case has been appealed many times and courts have always upheld his conviction.

Camiel said those courts did not have the full evidence now gathered in the Centurion report. Still, it’s too late for the group to ask for a new trial for Beach.

Although the group argues that Racicot overstepped his bounds and Beach’s lawyer was not adequate, the trial was more than 20 years ago, Camiel said, and the deadlines allowed for new trials on those grounds have expired.

That’s why Centurion is taking its request for clemency to Schweitzer, Camiel said.

“We really don’t have a good gauge of how long it’s going to take for the governor to decide if he’s going to act on this,’’ he said.

Based in Princeton, N.J., the Centurion Project has freed 26 innocent people from prison since 1983, according to the group’s information.

Racicot was the state’s special prosecutor for a number of years before his election as attorney general in 1988. He then was elected as Montana’s governor in 1992 and 1996. He now is president of the American Insurance Association based in Washington, D.C.

Beach is serving a 100-year sentence without the possibility of parole.

Innocent Imprisoned
Truth in Justice