Nov 23, 2011 3:05 PM by Erin Schermele (KRTV News)
GREAT FALLS- Barry Beach, who's been convicted for the murder of teenager Kimberly Nees, has been granted a new trial.
Beach was convicted in 1983 for the 1979 beating death of the Poplar teen, and is now serving a 100 year sentence in the Montana State Prison.
A hearing was held in Lewistown in August to to determine if there was sufficient evidence to grant a new trial, but on Tuesday, Judge E. Wayne Phillips issued his ruling.
The 30-page ruling states, in part:
"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 ruling concludes:
It is hereby Ordered that Beach's Petition for Post Conviction Relief is not time barred, the Petition is Granted, and Mr. Beach is Granted a new trial on the charge of the murder of Kim Nees.
(August 3, 2011) The Barry Beach hearing in Lewistown came to a close on Wednesday.
The hearing, which began on Monday, was held to determine if there's sufficient evidence for a re-trial for Beach.
Beach, now 49, was convicted in 1983 for the 1979 beating death of the Poplar teen, and is now serving a 100 year sentence in the Montana State Prison.
On Wednesday, Michael McIntire of Great Falls testified that Sissy Atkison threatened him back in 2005 when they were neighbors in Great Falls.
McIntire said that when he confronted her about drug activity, she replied, "You don't know who you are messing with, I killed a girl up on the reservation and I will kill you, too."
The hearing wrapped up with testimony from Dean Mahlum, a witness who was called by both the defense and the prosecution.
Mahlum was one of the original investigators of the Nees murder, and he told the court about his interpretation of the injuries that Nees suffered.
He noted, "Due to the lack of other injuries that we are dealing with one perpetrator as opposed to a bunch of people"
The defense pointed out that Mahlum did not see the body until after the autopsy and was not qualified to make those assumptions.
The defense then asked the court to allow the testimony of a doctor that would highlight factual flaws in Beach's original confession.
The state argued the purpose of this hearing is only to discuss new evidence, and not to address possible procedural errors.
The judge agreed and both sides rested.
Before he can make his final ruling, Judge E. Wayne Phillips requested that both the state and the defense prepare a brief.
The brief will suggest to the judge whether or not he is required by the Montana Supreme Court remand to hear testimony regarding procedural errors and constitutional claims from the original Beach trial.
Phillips noted, "It seems to be that if I find, for instance, that actual innocence does not set the ground for a new trial, the question will be, do I have to move onto a procedural and determine if that will lead to a new trial?"
The state will suggest the judge holds an additional hearing before he makes his final ruling.
Prosecutor Brant Light said, "This is a very unique hearing, very complex issues for both sides including the judge, so I think the briefing is required."
Although the defense isn't opposed to an additional hearing, they believe the decision could be made without one.
Defense attorney Peter Camiel remarked, "We think there is enough evidence right now, the judge could find that with a new jury they could come up with a different outcome."
The briefs are due to the judge by the close of business on October 14th; after the judge reviews the briefs, he will then make a decision on what the next step will be.
The judge said that hopes to make his decision before Thanksgiving.