In response to the Montana Board of Pardons and Parole's denial of Barry Beach's clemency application this month, James McCloskey, executive director of Centurion Ministries, which has been fighting on Beach's behalf, issued a detailed commentary today. His response follows in full:
My name is Jim McCloskey. In 1980, I began the work of Centurion Ministries (CM). CM’s mission is to identify and then work to free those men and women across America who, after a rigorous vetting process, we believe to be factually innocent of the crimes for which they are serving life or death sentences. Barry Beach is one of our clients. Throughout the last 14 years we have conducted an exhaustive investigation of his conviction and Kimberly Nees’ homicide. This effort includes a study of the entire written record of the case as well as interviewing hundreds of people in seven different states.
As a result of this work, we are convinced that Barry Beach had absolutely nothing whatsoever to do with the tragic death of Miss Nees. If we thought otherwise or even had creeping doubts that he was somehow involved, I would have terminated our effort on his behalf years ago. The purpose of this letter is to respond to the recent denial by the Montana Board of Pardons and Parole (MBPP) of Mr. Beach’s application for Executive Clemency.
THE BLOODY PALM PRINT
I will begin by going to the heart of the case. The MBPP states in its decision that, unlike the Beach supporters who “have strong opinions but are short on the facts”, the MBPP decision is based on “hard facts and evidence”. A key “hard fact” the MBPP got wrong is its assertion that the FBI could not exclude Mr. Beach as the owner of the bloody palm print found right above the handle on the passenger door of Miss Nees’ vehicle . The truth of the matter is that in its February 4, 1980 report the FBI excluded Barry as the bloody palm print donor. It is also important to point out that in its crime scene report the FBI stated that this bloody palm print “would have to have been left by the UNSUB [unidentified subject]”. Also, when Barry was arrested in January 1983, Roosevelt County Sheriff Dean Mahlum told the Louisiana authorities that the bloody palm print has been compared by the FBI to Beach and it is not his. To this day the owner of that all-important bloody palm print remains unidentified.
Even the chief investigator, Sheriff Dean Mahlum, recognized the evidentiary value of this bloody palm print. During his three and one half year investigation prior to the Beach arrest , in his written requests to the FBI asking it to compare the prints of suspects to those lifted at the crime scene, he would always write that “we would be particularly interested in the bloody palm print recovered from the passenger door”.
However, law enforcement knew they had a problem when Barry’s confession had him and him alone, as the sole perpetrator of the Nees’ homicide. If no one else was there except Barry, then how do they explain the bloody palm print? A blind eye was cast on it. All of a sudden it became irrelevant. In its 2007 opinion denying Barry, the MBPP stated that it “has little probative value…Kimberly Nees could have staggered against the pick-up while she was in the death throes… Barry Beach could have left the print as he was attacking Kimberly”.
The Board in 2007 and again in 2014 took their cues from Prosecutor Marc Racicot who, at the Beach trial, mockingly referred to the donor of the bloody palm print as a “phantom killer” or a “mystery man”; and then added that it could have been left by Kim Nees because the examiner could not exclude her as having left that print. Apparently, when her prints were taken at the autopsy, there was not enough clear detail from the palm to make a definitive comparison. If law enforcement really believed that it might be Kim Nees’ print, why would Sheriff Mahlum be so insistent to the FBI for it to pay specific attention to the palm print when making comparisons? The notion that the palm print could belong to Miss Nees is a smokescreen used by the Board and law enforcement to divert attention from its materiality and to diminish its importance in ascertaining the truth of the matter.
Let’s examine the possibility that the bloody palm print belongs to Miss Nees. She was viciously assaulted inside the cabin of her pick-up truck. Blood spattering and smears were observed throughout the cabin of the vehicle. Photos show and crime scene police reports describe “heavy blood splatters on driver’s side”; “ heavy blood stains on passenger seat”; “extensive blood spatters behind driver’s seat”; “three gauge marks on ceiling with hair (victim’s) coming out of marks”. She was then pulled out of the passenger door and dropped nine feet away; at which point was a four foot long pool of blood. She had been struck 20 times to the head with a blunt instrument.
Clearly, once removed from the vehicle in a badly beaten state by her killers and in their control, she was incapable of “staggering” anywhere, let alone able to leave a handprint on an open passenger door. From that point she was carried 256 feet and deposited into the Poplar River. One of her assaulters with bloody hands then decided to close the passenger door, thus leaving the bloody left handprint on the door above the handle. This is why the FBI and Sheriff Mahlum (before Barry’s confession/arrest) knew that the print was the forensic key to the case.
In its decision the Board ridicules the Beach defense for using the bloody palm print as its “rally call of Beach’s innocence; that the real killer is yet to be caught; and that is not the reality”. Well, for the reasons stated above, it most certainly is “the reality” of the case. Unfortunately, the Board and the other Beach adversaries refuse to remove their heads from the sand on this critically significant forensic fact of the case.
The Board concedes that Mr. Beach behaved as a good citizen during the 18 months of his freedom; however, it diminishes his good conduct by speculating that since he was unsupervised by any Department of Corrections personnel he could have been doing things he wasn’t supposed to be doing (i.e., possession or use of illegal substances). How unfair is that postulation! You’re damned if you do and damned if you don’t. Or another way to put it is you are guilty until proven innocent.
Besides that, the Board says that regardless of how well Mr. Beach conducts himself in or out of prison, neither he nor any other convicted felon can be truly rehabilitated until he first accepts responsibility for the crime. The Board’s opinion states that “Mr. Beach’s failure to achieve the most basic step of accepting responsibility and accountability continues to trump the other positive steps that he may have made”. So, in connecting the dots, as far as the MBPP is concerned, the only way Barry will ever see the light of day is if he admits to the murder of Kimberly Nees.
Is the MBPP so far behind the times that it refuses to believe that there are innocent people in prison? Apparently so, since all who come before it must admit to guilt and then express remorse. Otherwise they are not in any sense of the word “rehabilitated”. And if not rehabilitated, then freedom is only a fantasy. So what must a wrongly convicted person do when appearing before the MBPP? The answer is: lie and pretend you have remorse for a hideous crime that you did not do. Even though the MBPP taunts Barry for “painting himself into a 'corner of innocence' that he can’t back out of, and ... has probably convinced himself that he is innocent”, Barry will never tickle their ears by falsely telling them what they want to hear.
THE BEACH SUPPORTERS
The two written opinions denying Barry characterize the Beach supporters as well intentioned but ill-informed with very little knowledge of the case. That goes for the political figures who have stepped forward on behalf of Barry, too. The Board believes that most of the Beach supporters have been erroneously influenced by Dateline and my organization, Centurion Ministries. The MBPP states that “the facts as presented by Centurion Ministries and as reported in the Dateline television program…do not represent the true, unedited facts of the investigation and trial”. By process of elimination, I guess that leaves the Board as the ultimate arbiter of the truth in the Beach case.
The Dateline broadcasts, contrary to the Board’s view, gave both sides an equal opportunity to present their views and evidence concerning Mr. Beach’s innocence or guilt. Because of the deeply ingrained institutional bias that the Board has against Barry, it gets easily upset with any presentation that provides evidence of his innocence.
Let’s examine the case fact knowledge of the Beach Supporters. First of all, a score of interested citizens attended the 2007 MBPP hearing at the Montana State Prison to judge for themselves the credibility of witnesses for both the State and Mr. Beach as it pertains to his innocence or guilt. They heard first-hand the testimony concerning the confession of Mr. Beach by the Louisiana detectives and Mr. Beach himself as well as the testimony of citizens who received confessions from the gaggle of girls who confessed to participating in the murder of Miss Nees.
The same goes for the August 2011 post-conviction evidentiary hearing before Judge Phillips which was attended by some 50 or so Montanans from across the state. They, too, listened to the testimony of even more witnesses who had also received confessions from the girls or who actually observed the killing. Over the years a good number of the attendees at these hearings have also read the trial record of the case. None of these folks have turned away from Barry. In fact, these hearing experiences informed their understanding of the case and made them even stronger advocates for Barry’s innocence.
Contrary to the MBPP’s assertion, the political figures are also well informed about Barry’s case. After all, Governor Bullock was the Attorney General prior to becoming Governor. During his tenure as AG, his office fought the Beach appeals and did its best to keep Barry in prison. If anyone is familiar with the facts and the law in Barry’s case, it would be Governor Bullock. His letter takes strong issue with the Board’s decision, not about innocence, but on all the other criteria for executive clemency that he feels qualifies Barry for parole and makes him deserving of freedom. The same applies to former Governor Schweitzer. There can be no doubt that he kept himself fully informed as the Beach case wound its way through the MBPP in 2007 and afterwards in the Montana judiciary. His letter substantiates this view as he points out the salient facts of the case.
And how about Justice James Nelson, a member of the Montana State Supreme court for 20 years? Would he dare speak up for Mr. Beach in the manner that he did without closely reviewing the record of this case and the law surrounding it. Justice Nelson states in his letter of support to the Board that he believes “Mr. Beach was unjustly accused of homicide in the first place” and that … his confession is “highly suspect”. Surely a jurist of his stature and experience would never go out on such a limb without a thorough knowledge of the facts and the law of the case.
Then there is Tom Hanel, the Mayor of Billings, who retired from the Billings police force as a Lieutenant after 20 years of service. In his letter to the MBPP he states that he “reviewed the investigation of Barry’s criminal case and was utterly surprised with the lack of professionalism and great doubt it created in my mind”. Again, a man of his experience and expertise is not going to step forward on behalf of a man who spent 30 years in prison for murder; and then is living in his town without a thorough research of the case.
One last point: Shockingly, the Chairman’s decision memo insulted those concerned citizens who travelled great distances to attend the April 29 Beach hearing. He described them as “50 angry people”. Nothing could be further from the truth. As all who were there can attest, without exception they comported themselves with a calm dignity and showed great respect for the Board and the seriousness of the matter before them. Without a trace of rancor towards the Board, they spoke movingly on why they believed Barry deserved his freedom based on their own personal experience with him.
The Board states in its decision that “I find Beach’s confession to be 100% credible and containing details that only the killer could describe in the detail he provided”. No specific examples are offered to back up this assertion. It is simply not true. There is nothing in the confession that only the killer would know. Mr. Beach’s confession narrative shows an ignorance of both the crime scene and how and where the assault on Kim Nees unfolded and progressed. His confession is in direct conflict with the forensic evidence found at the crime scene. The Beach admission is a classic false confession because it does not fit the reality of the crime scene.
As an example, three sets of footprints were discovered (and photographed) close to the Nees vehicle on the way to the riverbank. Two of these were different sandal treads indicating two different people. The third was a set of bare footprints measuring 11-3/4 inches long. Barry’s bare foot print is 10-1/4 inches long. In closing arguments, prosecutor Racicot said the footprints at the crime scene had “actually no value whatsoever”. He said the footprints could have been made by a police officer. That doesn’t make any sense because the police would not have been wearing clogs or thongs; and were not in bare feet.
Mr. Racicot also said in closing “So, the fact is that the footprints, the fingerprints, and the blood evidence didn’t provide a clue as to who killed Kimberly Nees … All of the attempts to eliminate the defendant from this crime by stating that the physical evidence doesn’t tie him to the crime scene MEAN NOTHING”. Once again, the physical evidence in the case was disregarded because it didn’t conform to Barry’s confession and the “one man” theory espoused by law enforcement which was based on his confession.
THE NEW EVIDENCE
The Board derides Barry for having “no hesitation at lodging baseless accusations of murder towards presumptively innocent people”. First of all, it is not Barry who is blaming others. He had nothing to do with identifying or developing witnesses who over recent years have come forward with information that they received confessions from several women indicating that they, not Barry, were involved in the murder of Miss Nees. It was me and my colleagues at Centurion who learned of these people, interviewed them, found them to be very credible, and asked them to testify as to what they know. Buried in prison, Barry had no idea about these folks until I told him. What was he supposed to do, tell us not to pursue this new evidence that had the potential to exonerate him?
In its opinion, the Board states that “much of the ‘new’ evidence presented to Judge Phillips had already been heard by the board and found not to be credible”. That is another incorrect statement. Judge Phillips listened carefully to the testimony of six witnesses who had never appeared before the board. They had come forward subsequent to the Board’s 2007 Beach hearing. In his opinion Judge Phillips offers his reasons for finding the testimony of these witnesses to be very compelling. It was based on their testimony that he reversed Barry’s conviction and set him free.
The Board, of course, cites and leans on the Montana State Supreme Court’s May 2013 decision reinstating the Beach conviction as its basis for declaring the new evidence to be unreliable. The Board offers no analysis of its own. How could it? It (and the Supreme Court) never heard this testimony. It is interesting to note that a total of nine judges have passed judgment on Barry’s case for freedom since the new evidence was presented to Judge Phillips. Five were in favor of Barry and four were against him. Judge Phillips and three Montana Supreme Court Justices voted to reverse his conviction; four Supreme Justices voted to reinstate it; and recently retired Supreme Court Justice James Nelson (who had recused himself from the Beach case because of an association with a member of the victim’s family) in a letter to the Board expressed his strong belief in Barry’s innocence.
THE YEAR 2036
The Board says that Mr. Beach’s application for clemency is in error when it stated that he has a life without parole sentence. According to the Board, because he gets credit for “good time”, his sentence will be fully discharged on October 15, 2036. “Good time” means that for every day served he receives a day‘s reduction in time. So, instead of a 100 year sentence, it really is a 50 year one. That means that Barry can walk free in 22 years. He would be 74 years old then.
Is that to somehow provide a sliver of hope to Barry? Something tells me that he will not be very happy with that proposition. From his perspective that is quibbling over semantics; from a practical standpoint, it still adds up to a life without parole sentence.
I and his legion of supporters who know Barry and have known him for many years couldn’t disagree more vehemently with the Board when it compares him to a white collar criminal who is a “highly skilled, manipulative individual” ; and therefore, to release him “ into the community prior to discharge of his sentence is an extremely risky endeavor for the protection of society”. What a baseless, distorted and even paranoid assessment!
For the reasons stated above, I believe this denial by the MBPP of the Beach clemency application is incomprehensible and nonsensical. It flies in the face of not only the facts of the case, but of the well-informed, widespread popular and political support for Barry’s petition that stretches from Governor Bullock on down to members of the Billings community where Barry led an exemplary life during his 18 months of freedom. I agree with the Board when it says that “what is popular might not be right”; but in this case what is popular is RIGHT.
Returning Barry to his home in Billings poses no threat whatsoever to that or to any other community. In fact, it would be just the opposite. As Barry was when he was free, he would be a positive force in the lives of those he would interact with. As Mayor Hanel told the Board at the April hearing , speaking on behalf of himself and the city, the citizens of Billings would welcome Barry with open arms should he be allowed to once again be a part of their community.