Sharply conflicting testimony and high-running emotions marked the clemency hearing held June 13–15 at the Montana State Prison for Barry Beach, who’s served more than 23 years in prison for the 1979 murder of Kim Nees. The unusual event was the first time Beach and many other witnesses connected to the case have aired claims and experiences bolstering their argument for Beach’s innocence. The hearing also elicited aggressive efforts by the Montana attorney general’s office and witnesses including former Gov. Marc Racicot to justify Beach’s conviction and discredit those who argue that the state—which relied on Beach’s confession in lieu of any physical evidence tying him to the crime—condemned the wrong man.
All told, 24 witnesses and a crowd of onlookers including Nees’ sister Pam and state legislators attended the hearing, which stirred up memories of the gruesome murder that, by many accounts, has haunted the town of Poplar for 28 years. Days after graduating from Poplar High School, Nees was brutally beaten to death at a popular hangout on the edge of town and found floating in the Poplar River. For nearly four years, no one was arrested, despite a plethora of physical evidence collected from the crime scene. Then, in 1983, Louisiana detectives elicited a confession from Beach, who said he’d tried to kiss Kim and flown into a violent rage when she resisted his advances. After a brief jury trial, Beach was convicted and sentenced to 100 years in prison with no parole. Since then, Beach has sought to convince the courts he was wrongly convicted. He was recently granted the clemency hearing with the help of Centurion Ministries, a New Jersey group that works to free inmates it believes are innocent.
In the end, the Montana Board of Pardons and Parole will decide whether to recommend to Gov. Brian Schweitzer that Beach be pardoned. It could also take a middle-road approach of recommending his 100-year/no parole sentence be commuted or reduced, or that Beach become eligible for parole.
Essentially, in order to recommend pardoning Beach the board must believe a convicted murderer’s claim that his confession was false and coerced by Louisiana detectives, a notion ridiculed by Racicot as the conclusion of “conspiracy buffs.” But to recommend against parole, the board would have to set aside disturbing testimony from a number of witnesses who said two Poplar women, Sissy Atkinson and Maude Grayhawk, have admitted over the years that it was not Beach but they who attacked and killed Nees. They would also have to discount an alibi Beach’s sister Barbara Salinda gave for Beach on the night of the murder, and inconsistencies between Beach’s confession and the crime scene that Beach’s legal team call crucial.
Near the hearing’s end, one of the board members, Chairman Vance Curtiss, acknowledged the difficult decision that lies ahead. He also pointed out the high hurdle Beach faces in seeking a pardon: “I’ve not made up my mind under any circumstance at this time, but you were convicted by a jury of 12…” he told Beach. On Aug. 1, the board will reconvene to issue its recommendation on pardoning Beach and to hear testimony about whether he should be paroled.
At the hearing, many witnesses struggled to recall the long-ago events, and others openly contradicted one another. In the end, no clear-cut narrative emerged of what happened the night Nees died; instead, many of the mysteries and doubts that have long plagued the case, despite Beach’s confession and conviction, seemed only to deepen in the hearing’s limelight.
Besides trying to convince the Board of Pardons and Parole that key points of Beach’s confession—for instance, descriptions of Nees’ clothing and how the crime unfolded—didn’t match actual crime scene details, Beach’s attorney Peter Camiel spent much of the hearing demonstrating that Beach isn’t the only one to claim responsibility for the murder.
Over the years, Sissy Atkinson and Maude Grayhawk have implicated themselves to numerous people, including family members and strangers alike. Both Atkinson and Grayhawk were subpoenaed to appear, but only Atkinson showed up.
In her testimony, Atkinson, now 51, adamantly maintained she’d been home after 11 p.m. on the night Nees was murdered. But Centurion Ministries called a string of witnesses to contradict Atkinson’s testimony, including her brother J.D. Atkinson, who testified she told him that she was involved and Beach was innocent. Assistant attorney generals Mike Wellenstein and Tammy Plubell cast doubt on J.D.’s testimony by revealing that he suffers brain damage after being hit by a train and has a history of abusing women, although J.D. maintained that, “I have no reason to lie about this.”
Besides J.D., a Poplar bar owner named Roberta Ryan testified to chasing Sissy and her underage friends out of her bar just before closing time on June 16, shortly before Nees was killed. Dun O’Connor, a lifelong Poplar resident, said Sissy called him up at 5 a.m. to say police had found Nees’ body. Years later, he said, he realized the call was significant because police didn’t actually find Nees until 7 a.m.
Carl Four Star, of Wolf Point, testified he knew nothing about Nees or Beach, but that he worked near Sissy Atkinson at a Poplar factory in the mid-’80s. He said Atkinson and her boyfriend were talking over Beach’s conviction when she said, “They got the wrong man,” and that she and Grayhawk were responsible.
“Then she walked by me and looked right at me and said to me, ‘we got away with the perfect crime,’” he said.
Plubell, through questions posed to Atkinson and others, tried to cast doubt on whether Four Star could have overheard the conversation in the loud workshop and why he waited years to come forward. Four Star said he’d told a priest, but not law enforcement, out of fear: “On the reservation, there’s a lot of unsolved murders…I was just worried that somebody would come and look for me or some other member of my family.”
Judy Grayhawk, Maude Grayhawk’s sister-in-law, furthered Centurion Ministries’ attempt to call Beach’s involvement into question. In 2004, she testified, Maude told her she wished to avoid an investigator looking into Nees’ death.
“She said, ‘I don’t want to talk to him,’ and then she said, ‘all I ever did was kick her [Nees] in the head a few times,’” said Judy Grayhawk.
Plubell and Wellenstein sought to discredit testimony implicating Sissy Atkinson and Maude Grayhawk, raising doubt about its accuracy and questioning why it would emerge now, just when Beach is trying to win his freedom. Board members also questioned most of the witnesses, incredulously asking why they wouldn’t come forward with such important information.
“It’s a different world on the reservation, sir,” came one reply from Four Star.
After a slew of Centurion witnesses cast doubt on Beach’s involvement, Marc Racicot and Louisiana detectives Jay Via, Alfred Calhoun and Richard Medaries bolstered the state’s case against him.
Marc Racicot, former Montana governor and lead prosecutor in Beach’s case, said his confession “may be the most corroborative in all the cases I’ve tried in 20 years.”
“There is not one moment of doubt ever in my mind, since I have looked at this confession and been a part of this case, that Barry Beach is in fact guilty as charged,” he said later.
Racicot aggressively rebutted Camiel’s questions that pointed out problems with the state’s case against Beach and Racicot’s own conduct, suggesting Centurion’s investigators were simply “conspiracy buffs.” One major issue Camiel raised was discredited forensic scientist Arnold Melnikoff’s involvement with the case, and Racicot’s exaggeration of Melnikoff’s findings. Although Melnikoff issued a report saying a hair found on Nees’ sweater was similar to Beach’s, at trial Racicot said it was, “in fact, the defendant’s.” Ultimately, Racicot’s statements weren’t even supported by Melnikoff’s report or the hair itself, since both were thrown out of court after Maude Grayhawk’s father, a Poplar policeman, broke into the evidence room while guarding it, supposedly to use the adjacent bathroom. (At Beach’s hearing, Racicot discounted even the break-in, calling it an inconsequential mistake.)
Racicot denied knowing that Melnikoff’s hair evidence work has been widely discredited, leading to two exonerations of convicted men in Montana and a subsequent firing in Washington state.
“I don’t even know what you’re talking about,” Racicot replied to Camiel’s question. “In my 13 years of experience, Arnold was a very competent scientist.”
Similarly, Via and Calhoun held their ground in arguing that Beach’s confession was valid, not coerced, and that they hadn’t fed Beach the information reflected in his confession. Dean Mahlum, Roosevelt County sheriff at the time of Beach’s conviction, said Beach was a suspect in Nees’ death along with other investigated teens in part because Beach didn’t have a strong alibi.
Barbara Salinda, Beach’s sister, gave tearful testimony that “stunned” Plubell, saying she had seen her brother at home in bed the night Nees was killed. In cross-examination, Plubell pounded at Salinda’s reliability, asking why the alibi hadn’t come out at Beach’s trial or subsequent proceedings. Salinda maintained that she’d told local officials and Beach’s attorney about the alibi, but that they said no one would believe her and neglected to make it part of his case.
“I did not kill Kim Nees,” Beach, now 45, said after taking the stand.
In more than two hours of occasionally tearful testimony, Beach detailed his life in Poplar and the hours leading up to the Louisiana confession, though he says he can’t remember giving the detailed account in which he claimed he bludgeoned Nees with a wrench and tire iron and threw her in the river.
“I don’t remember giving this so-called confession…at some point I broke weak, and I made the biggest mistake of my life,” he said. “They broke me. I just wanted out of there and I didn’t care what it took to get out of there.”
Despite earlier testimony from criminologist Richard Leo that Beach’s confession fits the bill of a false confession, a common cause for exonerations nationally, Wellenstein seized upon Beach’s claim as too convenient: “It seems to me, listening to your testimony, you can remember everything that benefited you on Jan. 7, but with anything that hurts you, your memory has gone hazy.”
Momentum at Beach’s lengthy and intense hearing shifted repeatedly, tilting toward one side and then the other as witnesses took the stand in turn. Outside the hearing room, and on the balconies of the Deer Lodge hotel where many witnesses and onlookers stayed, the topic of Beach’s fate consumed conversation late into the night. Few could agree on how the Board of Pardons might respond to what they’d heard, or how the day’s testimony compared to their recollections and opinions. The one understanding all seemed to hold in common was the grave importance of the issue at hand: Guilty or innocent, wrongly or justly convicted, Beach’s life is at stake.