If there was one thing nearly everyone in the Fergus County courtroom could agree on this week it was that District Judge Wayne Phillips conducted Barry Beach’s evidentiary hearing in a balanced manner.
“As complex as this case was for us, it was equally complex for the judge,” said Assistant Attorney General Brant Light, one of the prosecutors representing the state in the case. “I think he was very balanced in this matter.”
|Fergus County Judge Wayne Phillips|
Beach is the 49-year-old Poplar man convicted of the 1979 killing schoolmate Kim Nees. Beach has long maintained that his confession to investigators in Louisiana — the only evidence tying him to the crime — was coerced.
Over the years Beach offered a theory that a gang of jealous females killed Nees in an assault that got out of hand. This week his legal team — for the first time — got a chance to present that theory to a judge. Beach hopes that Phillips will find the evidence convincing enough to order a new trial.
For nearly three days, Beach’s lawyers examined witnesses who gave testimony that bolstered Beach’s claim of innocence. One woman testified that she heard the “horrific” screams of multiple girls the night Nees was murdered. Other witnesses told the court that, over the years, three women admitted to playing a role in the crime.
Meanwhile attorneys for the state sought to poke holes in that testimony. They called the trustworthiness of Beach’s witnesses into question and fought back attempts to enter hearsay evidence into the record. Prosecutors brought their own witnesses, including the former Roosevelt County undersheriff who originally investigated the murder, to dispute Beach’s “gang-of-girls” theory.
|Beach’s attorney Peter Camiel|
Along the way, Phillips sustained and overruled dozens of objections by both sides. At some points, the judge seemed to be more favorable to the defense’s arguments, and at other times the state’s arguments appeared to hold sway.
At one point, Beach’s lawyers won a series of arguments related to the admission of evidence. The state opposed allowing certain written statements into the record, but Phillips overruled Light on three occasions. Light belied his cool confidence by slapping his hand down on the table and falling back into his chair, shaking his head in frustration.
Assistant Attorney General Tammy Plubell
Beach’s legal team had their share of frustrating moments, too. Time and time again they tried to convince the judge to allow testimony from University of San Francisco professor Dr. Richard Leo, an expert on false confessions. However, the judge rebuffed those efforts and Leo was not allowed to testify. The judge also denied Beach’s request to recall a witness after later learning new information stemming from his testimony. The judge refused, on the grounds that the defense had ample opportunity to ask the questions during cross-examination of the witness.
“All we can hope for is that he listens to all of the evidence and considers it carefully,” said Bobbi Clincher, Beach’s mother, before the hearing.
Left: Beach’s mother, Bobbi Clincher
Phillips was the third judge assigned to hear Beach’s petition for post-conviction relief, and he scheduled this week’s hearing more than a year after he was assigned the case. Prior to the hearing no one knew going into Monday if Phillips would allow witnesses from Beach’s amended petition to testify. Some people, including members of Beach’s legal team, were concerned that Phillips might refuse to hear the new evidence.
However, Phillips heard from nearly all of Beach’s witnesses over the course of 2½ days.
“I was very satisfied with the way this hearing was conducted and I am thankful to Judge Phillips,” Beach said in a jailhouse interview after the hearing concluded. “I thought he was patient and open to letting both sides present their very best case. Judge Phillips turned out to be everything I had been informed he was: fair, patient, and open minded to everything both parties presented.”
Robert “Bobby” Atkinson is the brother of Sissy Atkinson, one of the women Beach’s witnesses accused of playing a key role in Nees’ murder. Robert Atkinson, who was on the Poplar Police Department at the time of the murder, sat quietly in the courtroom gallery all three days. He was one of the few of the 30 or so people in the audience who was not there to support Beach, though Atkinson doesn’t appear to have any harsh feelings toward the man who has repeatedly accused his sister of murder.
During a break in the hearing Wednesday Robert Atkinson told The Associated Press he agreed that evidence in the murder case was mishandled . He also said Beach may not have had a fair shake at his original trial, and that Beach probably has served enough time in prison for the crime.
Robert Atkinson also said he believes Beach killed Nees largely on Beach’s confession.
Robert Atkinson said he also does not believe his sister, Sissy Atkinson, who lived a rough life as a drug abuser, was involved. However, he speculated, that she might have taken credit over for the killing over the years as a way to bolster her credentials among a tough crowd.
“She likes that reputation,” he said.
Sissy Atkinson told the AP that she never took credit for Nees’ murder.
Glenna Nees Lockman, Kim Nees’ older cousin, spent two days at the hearing, at times sitting next to Clincher. After the hearing Lockman said she came to Lewistown to support Beach, whom she said she believes is innocent. Lockman was adamant that she was speaking only for herself, and not for the Nees family.
“I was very satisfied with how this hearing went,” Lockman said. “I guess the only disappointment was that (former Roosevelt County Undersheriff) Dean Mahlum remembered every detail that might have helped the state, but couldn’t seem to remember anything for the defense.”
Peter Camiel, Beach’s lead defense attorney, said he also was pleased with how the hearing went.
“Going in we didn’t know if he (Phillips) would let us present any of our new witnesses,” Camiel said. “We’ve got a very hard-working judge who has taken this case super seriously.”
|McCloskey consults with Beach|
“I think our witnesses were believable, credible and they all had the opportunity to present their story to the court that shows that Barry is completely innocent of this crime, and played no role in it,” McCloskey said. “We look forward to the judge’s ultimate decision down the road.”
Both sides will present briefs to the court on or before Oct. 14. Phillips said he hopes that by Thanksgiving he will make a ruling on whether to grant Beach a new trial, or call for another hearing to hear Beach’s constitutional claims.
Light called this week’s hearing “very, very unusual.”
“We may not see another hearing this is many years,” Light said. “Now this part is over, but we believe there will be another hearing.”
Contributing: The Associated Press