innocence blog

A Web log for the Innocence Institute of Point Park University

Thursday, October 26, 2006

Assembly Candidates Debate Death Penalty Referendum

This article appered in the Wisconsin Chetek Alert on October18, 2006:

Assembly candidates debate death penalty referendum

by Jeremy A. Jensen

When Wisconsin voters head to the polls for the 2006 general election on Tuesday, Nov. 7, they will decide the fate of numerous candidates. Voters will also have the opportunity to weigh in on a referendum that would advise the state on whether residents are behind a movement to allow judges and juries to decide the fate of convicted murderers.

The UW-Barron County chapter of the Phi Theta Kappa fraternity, an honor society for two-year colleges, sponsored a forum on the upcoming referendum Wednesday, Oct. 11, at UW-Barron County. Democratic state Rep. Mary Hubler of Rice Lake and her opponent, Dari McDonald of Birchwood, addressed students, faculty and visitors on what the referendum means-not only for voters, but also for the 153-year ban on the death penalty in Wisconsin.

The referendum is expected to appear on the statewide Tuesday, Nov. 7, ballot as follows: "Should the death penalty be enacted in the state of Wisconsin for cases involving a person who is convicted of first-degree intentional homicide, if the conviction is supported by DNA evidence?" Death penalty supporters hope the result will encourage the Legislature to enact a law lifting the state's ban on the death penalty; opponents of the death penalty fear an expansion of the death penalty beyond the scope stated in the referendum, and hope a negative result will once again put the issue to rest.

Each candidate was given 18 minutes to speak on the referendum in front of a packed lecture room, with a question-and-answer period to follow.

McDonald, who later said she was not aware she would be given 18 minutes to speak, took approximately five minutes to explain her position on the referendum and the death penalty.

"The state of Wisconsin is very interested in what the voters' feelings are on the death penalty," McDonald stated. "They have put this referendum on the ballot in order to get your opinion on the death penalty, and whether judges and juries should be allowed that option in cases involving first-degree murder."

McDonald said the referendum was narrow in its wording, and would only apply to first-degree murder convictions that had corroborating DNA evidence."

I am supportive of the death penalty for the most heinous crimes committed," McDonald said. "For repeat sex offenders, especially against juveniles, for terrorists, and for crimes against policemen, law enforcement, or armed forces personnel serving here or abroad."

McDonald concluded her statement by stating that being supportive of the death penalty is giving consideration for the victims-victims that have already lost their lives, as well as possible future victims.

"It gives families of the victims a small measure of peace to know that these people will never commit these crimes again," McDonald stated. "The death penalty also prevents other families of future victims from having to go through similar pain."

Hubler's response

Rep. Hubler responded to McDonald's statements by first providing a history of the death penalty in Wisconsin.

According to Hubler, Wisconsin used the death penalty when it was a territory. The punishment could only be applied in cases involving murder, with the other stipulation being that the offender had to be hanged. In 1848, when Wisconsin became a state, those drafting the state's constitution made no mention of whether Wisconsin was to have the death penalty or not, which meant the state used the death penalty by default.

Between 1848 and 1851, four people were put to death in the state of Wisconsin. It was the final execution in 1851 that finally pushed the state Legislature over the edge. Hubler explained that in Wisconsin's early statehood, thousands of people would come to the public hangings to view the executions, and this one didn't set well with onlookers.

"The guy didn't exactly go quickly," Hubler remarked. "Doctors had to keep checking him and checking him, and he was finally pronounced dead after quite a long time."

The public outrage caused by the spectacle caused the Legislature to pass a law banning the practice in 1853, and ever since, Wisconsin has been among the minority of states that doesn't have the death penalty.

Public outcry wasn't the only reason for the elimination of the practice in Wisconsin. The state was planning to build its first prison in Waupun, which was completed in 1854. That institution ushered in a different way of thinking.

"That meant other options, like life in prison," said Hubler. "When you get a life sentence in the state of Wisconsin, you cannot get out. Period. It's called death by prison."

In the recent history of the death penalty in the United States, Hubler said the U.S. Supreme Court struck down the practice in 1972, claiming it was being applied too randomly. However, it was reinstated in 1976. In 1999, according to Hubler, 61 executions were conducted in the United States, and there are currently 3,500 inmates on death row across the country.

"A bill to reinstate the death penalty has been introduced in every session since 1973, and never has there been a vote on whether to reinstate the death penalty," said Hubler. "Not when Republicans were in control, not when Democrats were in control-never."

Hubler went on to state the referendum smells like election-year politicking, due to the fact that the referendum has no legal binding-meaning the state does not have to act on the referendum even if there is overwhelming support in favor of allowing the death penalty.

"The party in charge is putting politics ahead of policy," Hubler stated. "They're saying, 'Let's just put it out there and see if there is support out there for this, and, oh, by the way, let's see who we can get revved up to get out to the polls."

In fact, Hubler said, the Republicans didn't even have enough votes to get the referendum on the ballot originally. While the Senate passed the referendum, the Assembly actually defeated it the first time around. Hubler said it wasn't until a special session was called-and then not until three members of the Assembly were mysteriously asked to "take a walk" while the final vote was being taken-that the measure finally passed.

"Those were three votes that would have defeated the referendum," said Hubler. "Gee, I wonder why they were asked to leave."

Opposition to death penalty

There are five different reasons people oppose the death penalty, said Hubler. Those reasons are that the practice is morally wrong, it costs too much, DNA evidence is not infallible, the death penalty discriminates, and it doesn't make the community any safer.

"It fulfills the need for vengeance," Hubler admitted. "But we're a civilized society, and we can look at other options. The Code of Hammurabi-"an eye for an eye" may work in more oppressive nations, but the rest of the world goes the other way."

Hubler stated that other than the obvious moral implications in putting someone to death, cost is the biggest reason not to instate the death penalty in Wisconsin.

"States that have the death penalty spend more time and more money to get prepared for administering the punishment-whether they are ever going to use it or not," said Hubler. "It costs a lot of money for capital trials. There are appeals in both the state and federal courts. You have to build death penalty facilities, and you have to train people to run the equipment. All of this costs money."

Hubler added that the states of New York and New Jersey have spent over $350 million to prepare for administering the death penalty in those states' and they have yet to execute one person.

"Some people say it's easy to cut the costs-just cut the appeal time or shorten the number of appeals," said Hubler. "That's great, but what happens if you're one of the 127 people who have been sitting on death row that have been exonerated-127 people that served a total of 1,000 years in prison?"

Innocent people do get put to death, and innocent people do spend time on death row," said Hubler.
Hubler attributes a growing "CSI" mentality to a disturbing faith in DNA evidence.

"We've become this 'CSI' society, where we think all we need to get a conviction is just a little bit of DNA evidence," said Hubler. "DNA evidence is not infallible. This 'magic bullet' called DNA is not a gold standard; it's only as good as the people examining the results. We think no one that's innocent is ever going to be convicted again, and that's just not the way it is."

The color and economic lines drawn by capital punishment cannot be ignored, according to Hubler. She stated that most of the people on death row are people of color or are poor. People of color, especially African-Americans, are more likely to get the death penalty for similar crimes to those committed by whites, stated Hubler, who attributed the higher rates to economic disadvantage.

"The best defense I ever saw was O.J. [Simpson]," said Hubler, drawing laughter from the crowd. "But if you're poor, you can't afford those kinds of lawyers."

Finally, Hubler argued that the death penalty doesn't make communities any safer.

"We have a lower crime rate than most states that have the death penalty," Hubler stated. "You want to be safe? Lock them up and throw away the key. We have a death sentence in Wisconsin-it's called life in prison with no chance of parole."

Candidates respond to questions

After their presentations, the Assembly hopefuls were asked to respond to a number of questions from the audience. The first question dealt with the cost of keeping inmates in prison versus keeping them on death row.

"To keep a prisoner in prison in Wisconsin is expensive," said McDonald, adding that the costs often push judges to approve parolees that would normally be considered high-risk to re-offend. "A lot of times prisoners out on parole are getting back into society and committing more crimes."

McDonald said the cost associated with the DNA sequencing tests necessary to administer the death penalty proposed in the referendum is very small compared to keeping people in prison.

"DNA testing is very reliable, and it wouldn't be used for everyone," said McDonald. "Just for the most heinous crimes like murder, terrorism and sexual predators."

Hubler countered by stating that it costs $25,000 a year to keep a death row inmate incarcerated, which is more than what is spent per student on K-12 education or UW System education.

"It costs $2.39 million to put a prisoner to death, and it only costs $1 million to keep a prisoner in prison for 40 years," said Hubler. "That's almost three times the cost."

Hubler added that she knows what it's like to be a victim of a crime-Hubler was robbed at knife point by two men in Madison in February of 2005-so she realizes the question of whether or not to have the death penalty is bigger than just the cost involved.

"But it's three times the cost, and it's not necessarily going to make anyone safer," said Hubler.

"But don't you have to look at the price of life?" McDonald asked Hubler. "Who might be the next victim?"

Hubler countered a question on overflowing prisons by stating that Wisconsin's prisons are, in fact, not overflowing.

"We can thank former Gov. Tommy Thompson for that, because when the state built all those prisons in the '90s, it assured we could bring all of our prisoners back from out of state," said Hubler. "Our current prison capacity is 22,000, so that's just not an issue."

Hubler also pointed out that most states that have the death penalty don't use it, which means they spend all the money on the facilities for nothing-especially when in Hubler's mind, the death penalty doesn't work.

"And in states where they do have the death penalty, the police have more problems," said Hubler. "It becomes a 'dead men tell no tales' mentality. The criminals have less to lose because they know the death penalty exists, so they are willing to kill law enforcement officers to try and get away."

Hubler summed up her position by reminding the audience that innocent people will be put to death as long as the death penalty exists because there is no such thing as infallible evidence.

"Until you have something that's completely infallible-100 percent right-then I can't imagine that anyone in this room would be for the death penalty if there was a possibility of putting innocent people to death," said Hubler.

"DNA evidence is very reliable, and it gives us the best chance of getting murderers and people who commit these heinous crimes off the streets," McDonald countered.

"That's my point, it's a chance," replied Hubler. "There's a chance you might put the wrong person to death. Put them in prison for life, and there's no chance of them re-offending."

Assembly Candidates Debate Death Penalty Referendum

This article appered in the Wisconsin Chetek Alert on October18, 2006:

Assembly candidates debate death penalty referendum

by Jeremy A. Jensen

When Wisconsin voters head to the polls for the 2006 general election on Tuesday, Nov. 7, they will decide the fate of numerous candidates. Voters will also have the opportunity to weigh in on a referendum that would advise the state on whether residents are behind a movement to allow judges and juries to decide the fate of convicted murderers.

The UW-Barron County chapter of the Phi Theta Kappa fraternity, an honor society for two-year colleges, sponsored a forum on the upcoming referendum Wednesday, Oct. 11, at UW-Barron County. Democratic state Rep. Mary Hubler of Rice Lake and her opponent, Dari McDonald of Birchwood, addressed students, faculty and visitors on what the referendum means-not only for voters, but also for the 153-year ban on the death penalty in Wisconsin.

The referendum is expected to appear on the statewide Tuesday, Nov. 7, ballot as follows: "Should the death penalty be enacted in the state of Wisconsin for cases involving a person who is convicted of first-degree intentional homicide, if the conviction is supported by DNA evidence?" Death penalty supporters hope the result will encourage the Legislature to enact a law lifting the state's ban on the death penalty; opponents of the death penalty fear an expansion of the death penalty beyond the scope stated in the referendum, and hope a negative result will once again put the issue to rest.

Each candidate was given 18 minutes to speak on the referendum in front of a packed lecture room, with a question-and-answer period to follow.

McDonald, who later said she was not aware she would be given 18 minutes to speak, took approximately five minutes to explain her position on the referendum and the death penalty.

"The state of Wisconsin is very interested in what the voters' feelings are on the death penalty," McDonald stated. "They have put this referendum on the ballot in order to get your opinion on the death penalty, and whether judges and juries should be allowed that option in cases involving first-degree murder."

McDonald said the referendum was narrow in its wording, and would only apply to first-degree murder convictions that had corroborating DNA evidence."

I am supportive of the death penalty for the most heinous crimes committed," McDonald said. "For repeat sex offenders, especially against juveniles, for terrorists, and for crimes against policemen, law enforcement, or armed forces personnel serving here or abroad."

McDonald concluded her statement by stating that being supportive of the death penalty is giving consideration for the victims-victims that have already lost their lives, as well as possible future victims.

"It gives families of the victims a small measure of peace to know that these people will never commit these crimes again," McDonald stated. "The death penalty also prevents other families of future victims from having to go through similar pain."

Hubler's response

Rep. Hubler responded to McDonald's statements by first providing a history of the death penalty in Wisconsin.

According to Hubler, Wisconsin used the death penalty when it was a territory. The punishment could only be applied in cases involving murder, with the other stipulation being that the offender had to be hanged. In 1848, when Wisconsin became a state, those drafting the state's constitution made no mention of whether Wisconsin was to have the death penalty or not, which meant the state used the death penalty by default.

Between 1848 and 1851, four people were put to death in the state of Wisconsin. It was the final execution in 1851 that finally pushed the state Legislature over the edge. Hubler explained that in Wisconsin's early statehood, thousands of people would come to the public hangings to view the executions, and this one didn't set well with onlookers.

"The guy didn't exactly go quickly," Hubler remarked. "Doctors had to keep checking him and checking him, and he was finally pronounced dead after quite a long time."

The public outrage caused by the spectacle caused the Legislature to pass a law banning the practice in 1853, and ever since, Wisconsin has been among the minority of states that doesn't have the death penalty.

Public outcry wasn't the only reason for the elimination of the practice in Wisconsin. The state was planning to build its first prison in Waupun, which was completed in 1854. That institution ushered in a different way of thinking.

"That meant other options, like life in prison," said Hubler. "When you get a life sentence in the state of Wisconsin, you cannot get out. Period. It's called death by prison."

In the recent history of the death penalty in the United States, Hubler said the U.S. Supreme Court struck down the practice in 1972, claiming it was being applied too randomly. However, it was reinstated in 1976. In 1999, according to Hubler, 61 executions were conducted in the United States, and there are currently 3,500 inmates on death row across the country.

"A bill to reinstate the death penalty has been introduced in every session since 1973, and never has there been a vote on whether to reinstate the death penalty," said Hubler. "Not when Republicans were in control, not when Democrats were in control-never."

Hubler went on to state the referendum smells like election-year politicking, due to the fact that the referendum has no legal binding-meaning the state does not have to act on the referendum even if there is overwhelming support in favor of allowing the death penalty.

"The party in charge is putting politics ahead of policy," Hubler stated. "They're saying, 'Let's just put it out there and see if there is support out there for this, and, oh, by the way, let's see who we can get revved up to get out to the polls."

In fact, Hubler said, the Republicans didn't even have enough votes to get the referendum on the ballot originally. While the Senate passed the referendum, the Assembly actually defeated it the first time around. Hubler said it wasn't until a special session was called-and then not until three members of the Assembly were mysteriously asked to "take a walk" while the final vote was being taken-that the measure finally passed.

"Those were three votes that would have defeated the referendum," said Hubler. "Gee, I wonder why they were asked to leave."

Opposition to death penalty

There are five different reasons people oppose the death penalty, said Hubler. Those reasons are that the practice is morally wrong, it costs too much, DNA evidence is not infallible, the death penalty discriminates, and it doesn't make the community any safer.

"It fulfills the need for vengeance," Hubler admitted. "But we're a civilized society, and we can look at other options. The Code of Hammurabi-"an eye for an eye" may work in more oppressive nations, but the rest of the world goes the other way."

Hubler stated that other than the obvious moral implications in putting someone to death, cost is the biggest reason not to instate the death penalty in Wisconsin.

"States that have the death penalty spend more time and more money to get prepared for administering the punishment-whether they are ever going to use it or not," said Hubler. "It costs a lot of money for capital trials. There are appeals in both the state and federal courts. You have to build death penalty facilities, and you have to train people to run the equipment. All of this costs money."

Hubler added that the states of New York and New Jersey have spent over $350 million to prepare for administering the death penalty in those states' and they have yet to execute one person.

"Some people say it's easy to cut the costs-just cut the appeal time or shorten the number of appeals," said Hubler. "That's great, but what happens if you're one of the 127 people who have been sitting on death row that have been exonerated-127 people that served a total of 1,000 years in prison?"

Innocent people do get put to death, and innocent people do spend time on death row," said Hubler.
Hubler attributes a growing "CSI" mentality to a disturbing faith in DNA evidence.

"We've become this 'CSI' society, where we think all we need to get a conviction is just a little bit of DNA evidence," said Hubler. "DNA evidence is not infallible. This 'magic bullet' called DNA is not a gold standard; it's only as good as the people examining the results. We think no one that's innocent is ever going to be convicted again, and that's just not the way it is."

The color and economic lines drawn by capital punishment cannot be ignored, according to Hubler. She stated that most of the people on death row are people of color or are poor. People of color, especially African-Americans, are more likely to get the death penalty for similar crimes to those committed by whites, stated Hubler, who attributed the higher rates to economic disadvantage.

"The best defense I ever saw was O.J. [Simpson]," said Hubler, drawing laughter from the crowd. "But if you're poor, you can't afford those kinds of lawyers."

Finally, Hubler argued that the death penalty doesn't make communities any safer.

"We have a lower crime rate than most states that have the death penalty," Hubler stated. "You want to be safe? Lock them up and throw away the key. We have a death sentence in Wisconsin-it's called life in prison with no chance of parole."

Candidates respond to questions

After their presentations, the Assembly hopefuls were asked to respond to a number of questions from the audience. The first question dealt with the cost of keeping inmates in prison versus keeping them on death row.

"To keep a prisoner in prison in Wisconsin is expensive," said McDonald, adding that the costs often push judges to approve parolees that would normally be considered high-risk to re-offend. "A lot of times prisoners out on parole are getting back into society and committing more crimes."

McDonald said the cost associated with the DNA sequencing tests necessary to administer the death penalty proposed in the referendum is very small compared to keeping people in prison.

"DNA testing is very reliable, and it wouldn't be used for everyone," said McDonald. "Just for the most heinous crimes like murder, terrorism and sexual predators."

Hubler countered by stating that it costs $25,000 a year to keep a death row inmate incarcerated, which is more than what is spent per student on K-12 education or UW System education.

"It costs $2.39 million to put a prisoner to death, and it only costs $1 million to keep a prisoner in prison for 40 years," said Hubler. "That's almost three times the cost."

Hubler added that she knows what it's like to be a victim of a crime-Hubler was robbed at knife point by two men in Madison in February of 2005-so she realizes the question of whether or not to have the death penalty is bigger than just the cost involved.

"But it's three times the cost, and it's not necessarily going to make anyone safer," said Hubler.

"But don't you have to look at the price of life?" McDonald asked Hubler. "Who might be the next victim?"

Hubler countered a question on overflowing prisons by stating that Wisconsin's prisons are, in fact, not overflowing.

"We can thank former Gov. Tommy Thompson for that, because when the state built all those prisons in the '90s, it assured we could bring all of our prisoners back from out of state," said Hubler. "Our current prison capacity is 22,000, so that's just not an issue."

Hubler also pointed out that most states that have the death penalty don't use it, which means they spend all the money on the facilities for nothing-especially when in Hubler's mind, the death penalty doesn't work.

"And in states where they do have the death penalty, the police have more problems," said Hubler. "It becomes a 'dead men tell no tales' mentality. The criminals have less to lose because they know the death penalty exists, so they are willing to kill law enforcement officers to try and get away."

Hubler summed up her position by reminding the audience that innocent people will be put to death as long as the death penalty exists because there is no such thing as infallible evidence.

"Until you have something that's completely infallible-100 percent right-then I can't imagine that anyone in this room would be for the death penalty if there was a possibility of putting innocent people to death," said Hubler.

"DNA evidence is very reliable, and it gives us the best chance of getting murderers and people who commit these heinous crimes off the streets," McDonald countered.

"That's my point, it's a chance," replied Hubler. "There's a chance you might put the wrong person to death. Put them in prison for life, and there's no chance of them re-offending."

Death-Penalty Reform Falls Short in Va., Study Finds

This article appeared in the Richmond Times-Dispatch on October 14, 2006:

Death-penalty reform falls short in Va., study finds

BY Frank Green
Times-Dispatch Staff Writer

A new study by an anti-capital punishment group contends Virginia needs to do much more to prevent innocent people from being put to death.

"Virginia came perilously close to that with the scheduled execution of Earl Washington Jr.," who was pardoned as a result of DNA testing in 2000, said Jack Payden-Travers, director of Virginians for Alternatives to the Death Penalty.

Payden-Travers, noting Virginia has executed 97 people since the death penalty was allowed to resume in 1976, said, "It's time for Virginia to look once again at what we have done in the last 30 years."

The study, released Thursday, was performed by more than a dozen volunteer lawyers headed by Joseph D. Tydings, a former U.S. senator from Maryland. They looked at Virginia's laws and policies to see if they complied with 85 recommended reforms for Illinois' justice system.

In 2000, after 13 wrongfully convicted people had been freed from Illinois' death row, then-Gov. George Ryan created a commission to study the problem. The recommendations were the result of that two-year effort.

The study released this week found that Virginia "completely fails" to satisfy more than half of those recommendations such as requiring police to videotape interrogations in murder cases -- partially satisfies 31 percent of them and satisfies 14 percent.

Jane Bohman, director of the Illinois Coalition to Abolish the Death Penalty, said in a phone interview that roughly a third of the recommended reforms have been adopted there. "We haven't done very well, either," she said.

William G. Broaddus, a former Virginia attorney general who appeared with Payden-Travers, said the state has made progress in recent years in reforms that will help prevent wrongful death sentences.

"But much remains to be done," he said. "Hopefully, this will be a platform for the General Assembly, the courts and the executive branch to continue . . . the progress that has been made," Broaddus said.

J. Tucker Martin, spokesman for Attorney General Bob McDonnell, said in an e-mail that death-penalty law in Virginia has broad public and legal support for good reasons.

"Built into the system are numerous safeguards and opportunities for a defendant to challenge his sentence. And the governor has the ability to grant clemency at any time after the trial," Martin said.

Virginia's death-penalty law has been repeatedly upheld by the Virginia Supreme Court and the U.S. Supreme Court.

"As this conversation moves forward, no one should forget the voices we will not hear from: the innocent individuals who have had their lives ended by cold-blooded murderers," Martin said.
But Payden-Travers said, "We know that mistakes are made, that wrongful convictions come about. There are a number of cases in Virginia that are questionable . . . among those who have been executed."

While DNA testing freed Washington, it also drove the final nails in the coffin of Roger Keith Coleman, executed 14 years ago for a 1981 rape and murder in Grundy. Some death-penalty opponents argued Coleman was innocent until DNA testing conclusively proved his guilt this year.

In May, Washington won a $2.25 million verdict against the estate of a former Virginia State Police investigator. The jury held the investigator fed details of the crime to Washington, who falsely confessed -- a case where videotaping could have resolved any controversy.

Ironically, Broaddus headed the legal team that defended the estate of the investigator, Curtis Reese Wilmore.

The report also criticized the state for having too many crimes for which the death penalty could be imposed. The report said, the state should be trimming the list of capital crimes.

But Martin said, "Our statute is very narrowly defined, with only the most egregious crimes making someone eligible for the death penalty."

The study also recommended the barring of uncorroborated testimony of jailhouse snitches as the sole basis for conviction in a death-penalty case, as well as the prohibiting of convictions based on the testimony of a single eyewitness or accomplice.

Va. Databank Doesn't List all State's Felons

This article appeared in the Richmond Times-Dispatch on October 19, 2006:

Va. Databank Doesn't List All State's Felons

By Carlos Santos
Times-Dispatch Staff Writer

CHARLOTTESVILLE -- Though Virginia's felons are required to provide DNA samples, authorities believe thousands may have eluded the process, blunting the effectiveness of one of the state's best crime-fighting tools.

Charlottesville police Capt. J.E. "Chip" Harding said he was tipped off to the problem when he noticed that several suspects in a serial rapist investigation -- all felons -- weren't in the state's huge DNA database.

"I began to wonder just how many more were missing," said Harding, who started talking to state and local officials about the problem. "Now I think there's probably thousands."

The Charlottesville area has its share. This summer, the adult probation office that covers the city and Albemarle County compared its list of 600 supervised felons to the DNA databank, Harding said. A total of 125 felons were not listed in the databank.

Charlottesville and Albemarle authorities plan to bring the felons in next month to take DNA samples.

How the felons avoided giving samples is unclear, Harding said.

"But I don't suspect this is a Charlottesville-area problem," he said. "I think there's probably thousands of cases out there where felons . . . should be in the database and aren't.

"I'm not saying I know the scope of the problem. It could be 20 percent or could be far less, but we need to find out," Harding said. With the help of crime victims, he successfully lobbied in 1997 to fully fund the DNA databank, which then had a large backlog of samples to be processed.

Police use the databank -- which has about 260,000 samples -- as an investigative tool. Genetic evidence from a crime scene is compared to DNA samples in the databank. If there is a match -- known as a cold hit -- authorities can use the lead to help solve murders, rapes and other crimes.

Paul Ferrara, the head of the state's Department of Forensic Science, said there have been about 3,600 cold hits since the databank was started in 1989.

Ferrara also believes there is a problem with obtaining DNA samples from felons.
"I'm sure there are some who slip through the cracks," he said.

In many cases, local jurisdictions -- either at jails or at probation offices -- take DNA samples.
"We've done extensive training of jail and prison officials," Ferrara said. "But it's hard to know how effective they are in taking samples."

Until 2001, blood samples were taken for DNA. Since then, a simpler method involving the swabbing of the inside of the cheek has been used. Harding said the complication of taking blood samples -- requiring a trained technician -- may have led to some compliance problems. He also believes the problem may be greatest with felons who are not sentenced to jail or prison time -- a common occurrence with first-time, nonviolent offenders.

"I think in some cases, people are assuming somebody else is getting it done," he said. "There is no one agency overseeing all this."

Larry Traylor, a spokesman for the state Department of Corrections, said all inmates coming into the prison system are checked to see if they are registered in the database.

Del. Robert B. Bell, R-Albemarle, sponsored recent legislation that helped tighten DNA compliance by offenders listed in the state's sex-offender registry. Comparison of the registry to the DNA databank several years ago showed that about 20 percent of the sex offenders who should have been in the databank were not.

Bell said he is aware of the current questions about DNA compliance by felons.
"I think it's a question of getting all the different gears working," Bell said. "We may need to make it a uniform process."

Harding wonders if the serial rapist who has plagued the Charlottesville area is a felon who has eluded the databank. The rapist, linked to seven sexual attacks since 1997, last struck in 2004.
"Does he already have a conviction for a sex offense and has continued to attack because of a system breakdown?" Harding asked. "We need to find out."

Questions Arise on Who's Who in Graves Case

This article appeared in the Houston Chronicle on October 14, 2006:

Questions arise on who's who in Graves case
Several officials in murder case retrial have links to first trial that some say could seem unfair

By HARVEY RICE
Houston Chronicle

Supporters of Anthony Graves are worried about the connections between officials at his 1994 capital murder trial and a retrial ordered after an appeals court threw out his conviction and death sentence.
Graves is being retried in rural Burleson County in the 1992 slayings of a woman and five children because the 5th U.S. Circuit Court of Appeals found that prosecutors withheld statements from the defense.
No date has been set for the retrial, but Graves' supporters are sounding alarms about court officials in the retrial who are connected among themselves and to the first trial.
"It certainly lends itself to the perception that the trial participants will be more concerned with vindicating themselves or their family members than they will with truth or justice," said Michael Ware, spokesman for the Innocence Project of Texas.
Three law professors found no ethical problems in the relationships, but two of those professors said that so many connections might create an appearance of unfairness.
The officials and their connections:
•The presiding judge in the retrial, Reva Towslee-Corbett, is the daughter of Harold Towslee, the judge who presided over the 1994 trial.•Assistant District Attorney Joan Scoggins, who will be assisting District Attorney Renee Ann Mueller, was a member of the team that prosecuted Graves in 1994. The 5th Circuit Court said prosecutors withheld two key statements from the defense, including a statement by Robert Carter, executed in 2000 for the slayings.Carter, whose testimony convicted Graves, told prosecutors that he alone was responsible for the slayings. Moments before his execution, he again said that Graves was innocent.
•Mueller was not on the prosecution's team, but was an assistant DA for Burleson County during the 1994 trial.•The head of courtroom security for the retrial, E.K. Murray, was an investigator in the Graves case for the district attorney's office during the 1994 trial. The then-district attorney who prosecuted Graves in 1994, Charles Sebesta, testified that Murray was present when Carter made a statement the 5th Circuit Court said was kept from the defense.Murray, a potential witness, was present during a conference call among the judge and attorneys last month, according to a transcript of the hearing.
•The court reporter for the retrial, Carolee Murray, also was court reporter for the 1994 trial. She is married to E.K. Murray.Towslee-Corbett has imposed a gag order preventing prosecutors or defense attorneys from commenting. The judge declined comment, saying she is bound by her own order.
Law professors found no ethical problems with the relationships. Michael Scharlot, professor at the University of Texas at Austin Law School, was the only professor with reservations about the judge. "Asking the daughter of a former judge to reach different conclusions from her dad would be troubling, very troubling," he said.

Lawyer: New DNA Testing Clears Blair

This article appeared in the Dallas Morning News on October 17, 2006:

Lawyer: New DNA testing clears Blair
Inmate convicted of '93 Ashley Estell killing seeks hearing


By ED HOUSEWRIGHT
The Dallas Morning News

Michael Blair, convicted of killing 7-year-old Ashley Estell in 1993, is arguing that new DNA evidence proves he is innocent of the crime that spawned new laws against sex offenders.

Phil Wischkaemper, Mr. Blair's attorney, filed a motion in Collin County that contends new DNA technology, which didn't exist at the trial in 1994, shows that tissue found under Ashley's fingernails did not come from Mr. Blair.

"Given the nature of this evidence ... his actual innocence can hardly be disputed," said Mr. Wischkaemper, who practices law in Lubbock.

The motion asks state District Judge Nathan White Jr. to hold a hearing on the DNA findings, which Mr. Wischkaemper said could lead to a new trial for Mr. Blair, a death-row prison inmate.
The Collin County district attorney's office is reviewing the motion and awaiting the judge's decision, county spokeswoman Leigh Hornsby said. She said the office has no other comment.
Even if Mr. Blair were granted a new trial and found not guilty, he would never be freed from prison because he is serving lengthy sentences for other sex crimes.

In 2004, Mr. Blair pleaded guilty to four charges of aggravated sexual assault of a child. He received three consecutive life prison sentences.

Mr. Blair has never received an execution date in the Estell case.

"As long as he's under the sentence of death, the state could execute him," Mr. Wischkaemper said.

The Estell murder generated nationwide publicity.

Ashley disappeared from a Plano playground Sept. 4, 1993. Her parents were watching her older brother play soccer on an adjacent field.

Ashley's body was found the next day beside a rural road about six miles away.

After Mr. Blair's arrest, authorities found that he had been paroled in 1990 after serving 18 months of a 10-year sentence for burglary and indecency with a child.

Mr. Blair always has denied kidnapping and killing Ashley. Nonetheless, lawmakers and the public greeted him and the crime with outrage.

Ashley's slaying prompted new Texas laws that require longer prison terms for repeat sex offenders and better tracking once they are released.

Barry Scheck, a high-profile attorney who was part of O.J. Simpson's defense team, has monitored Mr. Blair's case for the last six years, Mr. Wischkaemper said.

Mr. Scheck founded the Innocence Project, a nonprofit legal clinic and criminal resource center, in New York in 1992. Through DNA testing, it has exonerated 184 people who were wrongly convicted.

"Most of our clients are poor, forgotten, and have used up all of their legal avenues for relief," according to the Innocence Project's Web site.

During Ashley's autopsy, examiners clipped her fingernails and kept them as evidence. The DNA tests on those fingernail clippings bolsters previous DNA evidence that supports Mr. Blair's claim of innocence, Mr. Wischkaemper said.

At Mr. Blair's trial, a prosecution expert testified that hair similar to Mr. Blair's was found on Ashley's body and that hair similar to Ashley's was found in Mr. Blair's car.

In 2002, eight years after his trial, those hair samples underwent DNA testing and were found not to belong to Mr. Blair or Ashley.

"I think every time we find a lack of a link between Michael Blair and Ashley Estell, we put another nail in the coffin of the state's case," Mr. Wischkaemper said. "I don't think it can survive many more hits like this."

He said the new DNA testing shows that the tissue samples came from at least two different men – neither of which was Mr. Blair.

He said he might know the source of the DNA.

"I think I have an idea, but I can't really speculate right now," Mr. Wischkaemper said.
The Collin County district attorney's office has said it gathered enough other evidence against Mr. Blair besides the hair samples and was prepared to retry him.

During Mr. Blair's 1994 capital murder trial, prosecutors called witnesses who testified that they saw him at the playground the day Ashley disappeared. Prosecutors also told jurors that Mr. Blair tried to join the search for her and visit the site where her body was found.

The defense, however, argued that witnesses placed Mr. Blair at the soccer park only after they saw his photo in media stories about the crime. No one claimed to have seen him and Ashley together.

Jurors took only 27 minutes to find Mr. Blair guilty and 90 minutes to sentence him to death.
Mr. Blair's conviction has been appealed to federal court, then remanded back to the Texas Court of Criminal Appeals and later to the trial court, the 366th State District Court in Collin County.

Since Mr. Blair's conviction, Ashley Estell's parents have declined comment. And they held true to form Tuesday.

"We've declined to comment for 13 years, and I would just as soon keep it that way," said Richard Estell, Ashley's father.

Mr. Blair has other defenders besides his attorneys. Dr. Linda Norton, a forensics expert, testified that she thinks he is not guilty.

Ashley was killed a few hours after her abduction, then her body was kept at room temperature until nightfall when it was dumped, according to Dr. Norton's analysis.

Mr. Blair drove a hatchback and lived with two roommates, so it seems unlikely he could have stored a body for several hours, Dr. Norton testified.

Why did the D.A. block a murder inquiry?

This editorial appeared in the Delco Times of Pennsylvania on October 16, 2006:

Why did the D.A. block a murder inquiry?

In 1986, Alonzo Watts was convicted of murdering Cleophus Toler with a single shotgun blast in early September 1985. A man with a violent past, Watts’ fate was sealed when a friend of the murder victim testified that, as he lay dying, Toler whispered, "Alonzo did it." Pretty serious evidence. But 22 years later Richard Hepburn, a Haverford native working with Centurion Ministries, believed Watts was telling the truth when he said he didn’t do it.

He told Daily Times columnist Gil Spencer the trial transcript and the recanting of the friend’s "Alonzo did it" testimony convinced him Watts was worth fighting for.

Spencer asked Watts to take a polygraph test. He agreed, but the prison refused to allow the inmate to be hooked up to a lie detector.

Steve Leach, Watts’ attorney, also tried to get the results of a gunshot-residue test conducted by the state police after Watts’ arrest. The Delaware County District Attorney’s office declined to help him.On Oct. 7, Alonzo Watts died in prison. But the questions did not die with him.

Why would a prison object to an inmate taking a lie-detector test? Why would the District Attorney’s office refuse to help a defense attorney get evidence that was not introduced at the trial?

And, most importantly, isn’t the idea of justice to try and make sure the guilty go to prison and the innocent are set free?

This month a man was cleared of the rape of a police officer’s wife after 21 years in prison. Scott Fappiano was 23 years old when he was convicted. The hard work of the Innocence Project and DNA evidence freed him at the age of 44.

This month a man in Australia was freed after serving 13 years for the bludgeoning death of a woman in 1994. Applying forensic techniques of 2006 proved he was wrongly convicted.

Two cases, one in New York and on another continent, but two among many.

The Innocence Project has many branches and a couple of names. Considered the first is Centurion, which started in 1983 and has helped 14 innocent people to be released from prison.

Perhaps the best known is at the Benjamin N. Cardozo School of Law at Yeshiva University, founded in 1992.

But no matter the name or location, all the projects work to exonerate the innocent men and women in prison. Their work has set 183 wrongly convicted prisoners free. It has also prompted 31 states to initiate laws to provide for motions in post-conviction DNA testing.

Pennsylvania’s statute enacted in 2002 "provides that persons sentenced to death may assert innocence in a motion for DNA testing of specific, available evidence for which DNA technology was not available at the time of the conviction, or the defendant’s counsel did not seek testing, or the court refused to pay for testing for an indigent client."

While the statue provides for DNA evidence in death sentence cases, the Fappiano case proves it’s just as important and should be provided for those not sentenced to death.

Evidence other than DNA appears not so easy to obtain. Why would gunshot-residue evidence that could either help confirm the conviction or help prove the innocence of a prisoner be denied to his lawyer?

While polygraphs cannot be used in a court of law, the test requested would have helped those willing to work on Watts’ case for freedom.

Alonzo Watts died at age 57 a little over a week ago, but the questions still remain.

Wednesday, October 25, 2006

Ohio Governor Grants Stay of Execution

This article appeared in the Washington Times on October 20, 2006:

Ohio governor grants stay of execution


Ohio Gov. Bob Taft granted a stay of execution Friday to a convicted killer to allow more time for DNA testing of evidence in the case.

John Spirko Jr. maintains that he is innocent of kidnapping and killing Betty Jane Mottinger 24 years ago. She was in charge of the post office in Elgin, a small town in the northwestern part of Ohio.

Spirko had been sentenced to die Nov. 29 but Taft's reprieve puts it off to April 17, the Columbus (Ohio) Dispatch reported. That puts Spirko's fate in the hands of Taft's successor. "It is my hope that the additional time permits the completion of the DNA testing and analysis agreed upon by the attorney general and Mr. Spirko's counsel," Taft said in a statement.

The DNA testing has been underway for a year.

One Lawyer or Two in Capital Cases?

This article appeared in the ABA Journal Report on October 20, 2006:

One Lawyer or Two in Captial Cases?
Louisiana Court Eyes ABA’s Call for Two Attorneys for Defendants Facing Death Penalty

BY SIOBHAN MORRISSEY

For more than two decades, the ABA has held that two heads are better than one when it comes to defending someone charged in a death penalty case. Now the standard of appointing two qualified defense attorneys in capital cases has come under fire by a leading prosecutors group that asserts this is just one more step toward abolishing the death penalty by making the process too onerous.

"I testified before Congress on this subject," says Joshua Marquis, district attorney for Astoria, Ore., and a vice president of the National District Attorneys Association. "They want to have capital representation standards that are so high that basically the argument is that if you can’t provide at least this level of representation, then you can’t seek the death penalty. So you make the requirements so onerous that essentially nobody can meet them. It ends up being the functional abolition of capital punishment."

Not so, says Irwin H. Schwartz, a Seattle attorney and chair of the Criminal Justice Standards Committee of the ABA’s Criminal Justice Section. Co-counsel in capital cases allows for research assistance and emotional support, as well as a fresh perspective, Schwartz says. More important, with two attorneys, one can concentrate on the trial and the other can deal with the sentencing phase, he says. Schwartz points out that the ABA set this aspirational standard in 1985 in Criminal Justice Section Standard 5-6.1. "This is not a recent obstacle thrown in anybody’s path," Schwartz says. "It made sense 20 years ago, and it certainly makes good sense today."

At the federal level, statute requires two attorneys to be appointed in capital cases. But that doesn’t apply in a state case now being reviewed by the U.S. District Court for the Middle District of Louisiana.

The issue of whether two attorneys are needed to provide adequate representation came up during the habeas corpus hearing for Walter J. Koon, sentenced to death for killing his wife and her parents.

Koon’s attorney maintains one of the flaws in the trial stemmed from solo representation. Last August, Baton Rouge defense attorney James E. Boren asked the court to expand the record to include an affidavit from Robert M.A. Johnson, an Anoka, Minn.-based county attorney, former NDAA president and current chair of the ABA’s Criminal Justice Section. Walter J. Koon v. Burl Cain, No. 3:01-cv-00327-JJB-SCR. (The full text of Johnson’s affidavit appears below the motion to expand.)

Boren sought inclusion of Johnson’s comments after the court heard testimony last March from Hugo Holland, a Louisiana prosecutor. As an NDAA member, Holland testified that the organization actively discourages its membership from joining the ABA because the ABA "is predominantly comprised of criminal defense lawyers" and that leads to policies that favor the defense in court.

"So that’s why we encourage prosecutors not to be members," Holland testified, "so that anytime somebody brings up the ABA standards, which, by the way, in my mind, do constitute the pie-in-the-sky perfect scenario for criminal defense, we don’t want anybody to be able to point to them and say, ‘Well, prosecutors were members of that group, and they agreed with these standards.’ "

Johnson’s affidavit disputes Holland’s claims regarding the makeup of the ABA Criminal Justice Section and how the ABA drafted its standards.

"I believe that it is the care, thoroughness and balance that goes into developing the standards that has led the U.S. Supreme Court to refer to the standards as ‘guides to determining what is reasonable,’ " Johnson said in his affidavit, providing references: Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984).

Johnson went on to point out that former ABA President (and later Supreme Court Justice) Lewis Powell began the project to develop criminal justice standards back in 1964. Twenty-two years later, in August 1986, the ABA House of Delegates put a newly created committee of the Section of Criminal Justice in charge of the standards, Johnson stated. He pointed out that the nine-member committee sought balanced representation from prosecutors, defense attorneys, academicians and judges. When Defense Function Standards were developed, prosecutors filled two of the nine committee slots, he added.

On Sept. 22, the prosecution responded by asking the court to deny the motion because, in part, the defense twice deposed Holland last year and failed to elicit testimony about either the ABA or the NDAA.

The court has yet to rule on that motion.

FBI Contracts With Unisys

This article appeared on the Business Wire on October 19, 2006:

FBI Contracts with Unisys for Development and Deployment of Next-Generation Combined DNA Index System
Search engine tool will accelerate DNA matching process, aid in crime resolution

BLUE BELL, Pa.--(BUSINESS WIRE)--Unisys Corporation (NYSE:UIS) announced today that the U.S. Department of Justice, Federal Bureau of Investigations (FBI) has awarded the company a contract for the development and deployment of the Next-Generation Combined DNA Index System (NGCODIS). Under the contract, Unisys will provide the FBI with software development, deployment and optional operations and maintenance support.

The development contract has a two-year base period, a two-year option, and two one-year options exercisable at the sole discretion of the government. The estimated value for the two-year base period is $11 million. If all option years are exercised, the estimated value to Unisys could be $50 million. Unisys will partner with the University of Tennessee, Laboratory of Information Technologies; IBM; the University of Cincinnati and iSYS LLC to provide the NGCODIS solution for the government.

Chief among the benefits of the NGCODIS solution to the FBI are scalability and flexibility to meet the increased demand for DNA matching and associated technologies. In addition, the Unisys solution will employ a highly sophisticated search engine technology that will greatly accelerate the DNA matching process and will be adaptable in accordance with recent legislation changes with regard to DNA sampling.

NGCODIS also supports the mission of solving missing person cases by providing an advanced analysis algorithm that accurately ranks matches between unidentified human remains to biological relatives.

The FBI laboratory's Combined DNA Index System (CODIS) is a mission-critical program that allows federal, state and local labs to share and compare DNA profiles, enabling the national and international linkage of convicted offenders to violent crimes.

“We look forward to helping the FBI take CODIS to the next level by integrating technology that will enable quicker resolution of crimes and apprehension of criminals via secure information sharing. The DOJ and FBI clearly recognize the advantages of making security a catalyst for crime solving,” said Ted Davies, managing partner, civilian agencies, Unisys Federal Systems.
Presently, there are 178 national DNA index system participating labs (126 local and 52 state systems) that include the FBI, the U.S. Army and Puerto Rico. This database contains approximately 3.7 million offender profiles and 150,000 forensic profiles. Through August 2006, CODIS has aided 38,295 investigations in 49 states and two federal laboratories.

Unisys NGCODIS solution will be deployed to all U.S. labs and to crime labs in 26 countries. The international systems represent each country’s national forensic DNA database and do not communicate with each other or with the U.S. systems. NGCODIS will support the FBI enterprise architecture initiatives by promoting secure information sharing among FBI CODIS crime labs.

About Unisys
Unisys is a worldwide technology services and solutions company. Our consultants apply Unisys expertise in consulting, systems integration, outsourcing, infrastructure, and server technology to help our clients achieve secure business operations. We build more secure organizations by creating visibility into clients’ business operations. Leveraging the Unisys 3D Visible Enterprise approach, we make visible the impact of their decisions – ahead of investments, opportunities and risks. For more information, visit www.unisys.com.

Forward Looking Statements
Any statements contained in this release that are not historical facts are forward-looking statements as defined in the Private Securities Litigation Reform Act of 1995. All forward-looking statements rely on assumptions and are subject to various risks and uncertainties that could cause actual results to differ materially from expectations. This is a cost reimbursement contract with both fixed fee and incentive fee portions. Statements in this release regarding the estimated value of the contract are predicated on the assumptions that the actual costs of performance will be consistent with the currently estimated costs and that the government will exercise all of the option years, which is entirely within the government's discretion. Further, because contracts with government agencies are terminable before the end of their terms and are subject to the availability of appropriated funds, the estimated values in this release are not guaranteed. Additional discussion of factors that could affect Unisys future results is contained in periodic filings with the Securities and Exchange Commission.

Theft Solved by DNA Analysis

This article appeared on USA Today's website on October 20, 2006:

Thefts Solved by DNA Analysis
Usage expands in non-violent crime

By Richard Willing
USA TODAY

The national database of criminals' DNA, designed by the FBI to help solve rapes and murders, increasingly is being used to identify suspects in unsolved burglaries and other property crimes, a USA TODAY review of state crime lab records shows.

In 10 states — Alabama, Florida, Indiana, Michigan, Missouri, New Mexico, Ohio, Oregon, Virginia and Wisconsin — the total number of DNA matches in property-crime cases has exceeded the number of matches in violent crimes, the review indicates. Other states also are reporting increases in property-crime matches: Of Georgia's first 171 matches, only 13 involved DNA from the scenes of unsolved burglaries. Of the 300 matches that followed, 79 were in burglary cases.

Oregon state police DNA analyst Brian Ostrom says there are many reasons for the rise in property-crime matches. DNA testing has become more sophisticated, he says, allowing analysts to draw genetic profiles from evidence left at burglary scenes — palm prints, cigarette butts, sweat stains on gloves and masks — nearly as easily as they can get profiles from blood or semen at the scenes of violent crimes. And government grants for testing evidence, initially limited to violent crimes, now can be used to analyze DNA from property crimes.

Since 1990, the states, the federal government and the military have collected DNA from those convicted of felonies — serious crimes punishable by more than a year in prison — and stored the genetic profiles in computer databases. Several states collect DNA from those convicted of misdemeanors, such as minor assaults. With FBI software, the profiles are compared with DNA from crimes. The system was designed to “solve violent crimes,” its mission statement says.
The database contains DNA profiles from about 3.5 million people and has scored matches in about 38,000 cases, FBI scientist Thomas Callaghan says. The system adds about 25,000 profiles a month.

The FBI does not keep track of the types of crimes for which the system scores DNA matches, nor does it track how many matches produce arrests or convictions. USA TODAY compiled statistics on matches by reviewing records in the 20 states that account for about 85% of the system's matches.

Critics say using DNA to solve non-violent crimes could raise privacy concerns by dramatically expanding the database. Some question spending millions of dollars to probe such crimes. “For what it does in terms of cost, and in threats to civil liberties, (the database) has to justify itself much better,” University of Minnesota political science professor Jay Aronson says.

Backers of expanded DNA testing say burglars often go on to commit more serious crimes. In Alabama, about 80% of the rapes solved via DNA databasing in the past five years were linked to criminals whose DNA was taken after a burglary conviction, state forensic biology chief Angelo Della Manna says.

Death by Good Intentions

This article appeared the Washington Post's website on October 15, 2006:

Death by Good Intentions

By David R. Dow

In two weeks the National Coalition to Abolish the Death Penalty, the nation's premier abolitionist organization, will meet to celebrate its success in reducing popular support for the death penalty and to discuss tactics for continuing the effort. There is something its members ought to know, however: The tactic that has eroded popular support for the death penalty is at the same time making it easier to go ahead with executions.

Many death penalty abolitionists operate in the belief that as soon as they identify one innocent execution victim, the death penalty will die a sudden and convulsive death. This belief is chimerical. We already know the names of a number of wrongly executed people, for all the good it's done.

An investigation by the Chicago Tribune revealed that Cameron Willingham, executed in Texas on Feb. 17, 2004, was almost certainly innocent. An investigation by the Houston Chronicle demonstrated that Ruben Cantu, executed in Texas on Aug. 24, 1993, was innocent. Professor Sam Gross of the University of Michigan has identified more than a hundred innocent men who have ended up on death row.

Proponents of the death penalty nevertheless continue to say that no one has yet proved innocence in these cases because none of them involved DNA. So the abolitionists search for DNA. One day they will find it, and when they do, we will add one more name to the list, and some district attorney will apologize and say regretfully that mistakes happen. And the machine will grind on.

It will grind on because the focus on innocence has insidiously distracted the courts. When I represent a client in a death penalty case, judges want to know whether there is any chance that client is innocent. If he isn't, then they are not much concerned about anything else I have to say.

Oh, so blacks were excluded from the jury? So what, he's guilty; any jury would have convicted him. Oh, so police hid evidence? Big deal, there was plenty of other evidence that he did it. Oh, so his lawyer slept through trial? Why does that matter? Clarence Darrow himself couldn't have kept him from the gallows.

This past week the Supreme Court agreed for the second time to hear the appeal of LaRoyce Smith, a death row inmate in Texas, because the Texas courts, convinced of Smith's guilt, believed they could therefore ignore the fact that his right to a fair trial was violated. Yet the Supreme Court itself is partly to blame. In the recent case of Kansas v. Marsh , Justices Antonin Scalia and David Souter engaged in an extraordinary debate over the persuasiveness of Gross's study and whether any innocent person has been executed in the modern death penalty era.
Of course, only the most naive person -- or perhaps the most disingenuous -- would think that we miraculously identify everyone who is innocent just in the nick of time. But what was even more astonishing about this debate was that the arcane legal issue in Marsh had absolutely nothing to do with the question of whether Marsh was innocent or even with the issue of innocence in general.

Innocence is a distraction because most people on death row are not in fact innocent, and the possibility of executing an innocent man is not even remotely the best reason for abolishing the death penalty.

The best reason is that killing is wrong. The second-best is that the death penalty is unfair: the system favors white skin and devalues dark; it favors the wealthy and penalizes the poor. The third-best reason is that it tempts the government to cheat, and the government does cheat routinely; police lie and prosecutors withhold evidence. The fourth is that it is economically unsound; we have failing public schools, citizens without adequate health care and potholes in our streets, yet we squander a billion dollars carrying out unnecessary executions.

Innocence is important, but death penalty opponents, of all people, should beware of diminishing the best and more powerful reasons for abolition and in the process, making the execution of the guilty acceptable -- because it is not.

The Wrong Man?

This article appeared in the Missoula Indepenent on October 12, 2006:

The Wrong Man?


Following the discovery of Kim Nees’ murder on June 16, 1979, unidentified law enforcement officials investigate the scene where Kim’s truck and body were found, near the banks of the Poplar River. Photo courtesy Peter Camiel. Twenty-three years ago, Barry Beach confessed to a brutal murder he now swears he didn’t commit. He’s been locked up ever since. Can new evidence set him free?

Barry Beach can’t shake the memory of his first long walk up the steps of the Glasgow courthouse, where a jury would eventually convict him of the brutal murder of Kim Nees, his high-school classmate. As he passed through the courthouse doors that spring day in 1984, he came face to face with a class of waist-high children who stood, along with their teacher escort, and stared.

“That’s something I’ll never forget as long as I live,” Barry says now, his voice shaking, in an interview at the Montana State Prison in Deer Lodge. “The teacher didn’t even know me. I hadn’t been convicted, hadn’t even been in the courtroom yet, and this teacher points me out to these little, tiny kids and says, ‘That’s what a murderer looks like.’”

Barry is haunted by the characterization, which he says is utterly wrong, and his run-in with the children was neither the beginning nor the end of Barry’s long and thus far fruitless battle to clear his name. Convicted in 1984 based on a confession he has said all along was false and coerced—and despite a plethora of physical evidence, none of which implicates him—Barry has spent the last 23 years paying for a crime he and many others say he didn’t commit. Imprisoned at 21, Barry is now a middle-aged man serving a 100-year sentence with no parole. He has spent his adult life behind bars with one aim: proving his innocence and winning his freedom. Recently, with the help of Centurion Ministries, a New Jersey organization that works to investigate and free wrongly imprisoned inmates, Barry applied to Gov. Brian Schweitzer for executive clemency, which could come in the form of a pardon or commutation of his sentence. Prevented by legal deadlines from taking his case back to the courts, and frustrated with the Montana Parole Board’s recent rejection of his sentence commutation application, Barry says he’s appealing to the governor because he refuses to give up on the truth, and because he continues to keep faith that someone will listen.

“The facts exist and they’ve existed for 27 years,” Barry says. “All I’m asking anybody—Gov. Schweitzer, the Parole Board, the courts, I don’t care who—is to give me the opportunity to present the facts for what they are. Because I don’t even have to speak…the facts are there in black and white.”

The story of how Kim Nees lost her life in 1979, and of how Barry Beach lost his freedom in 1984, has never been simple or satisfying. And a quarter-century later—when memories have faded, addresses have changed and officials have retired—it’s even harder to root out. But ample evidence does remain, and has recently been bolstered by new details. In Barry’s lengthy appeal to Schweitzer, Centurion Ministries attorney Peter Camiel presents both the history of Barry’s case and the results of a six-year reinvestigation that has unearthed fresh material. The Independent relied upon this material, case documents and original interviews with many of the people involved to construct this account.

It was just before seven on a Saturday morning in June 1979 when two tribal police officers on patrol decided to check out a truck parked in a field west of Poplar where high-school kids frequently gathered for late-night drinking. According to police reports, when officers parked and approached the 1977 GMC pickup, they were confronted with a smear of blood on the passenger door, and then they saw a sweater, a purse and a package of Marlboro cigarettes sitting in a neat pile on the ground, covered in blood. Near the truck, a pool of blood and clumps of hair on the ground caught their attention. Then they noticed drag marks and a 257-foot trail of blood and beer cans leading to the Poplar River. At the end of the trail, they found Kim Nees floating face up, four feet from the riverbank in the shallow milky green water, clothed and dead.

Back at the truck, its light-green paint was spattered with blood, with a bloody palm print dried clearly on the outside of the passenger door. Inside the truck, the seat was soaked in blood and urine, and spatters of blood flecked the windows, ceiling and steering wheel. Three gouge marks in the ceiling had hair stuck in them. The keys were gone, the ashtray was open and the windows were closed.

Kim Nees, an athlete and cheerleader named “most sensuous” in her senior yearbook, and a favorite of her fun-loving, party-prone classmates, had delivered the valedictorian address at Poplar High School less than two weeks before at her graduation. The niece of a popular state senator born to a white, relatively affluent family in a relatively poor town on the Fort Peck Indian Reservation, she’d racked up college scholarships and everyone knew she was going places until, suddenly, she wasn’t. An autopsy found that her skull had been crushed by more than 30 gouging blows, likely with a metal tool. Her hands were bruised and bloodied from trying to fend off the attack. She had been drinking but wasn’t drunk.

Both the viciousness of the attack and its target stunned the town of Poplar, and in the murder’s wake the local newspaper reported that single female teachers were moving in together for safety.

Barry Beach, a year behind Kim in school, lived on the same block as Kim’s family and had dated Kim’s sister, Pam. They grew up like most of the kids in the neighborhood, playing sports and games together as youths and later cruising and drinking at outdoor parties. Barry wasn’t a star athlete, but managed the sports teams with his sister. His mom owned a pizza parlor and ice cream shop, and he remembers the ribbing he received from other kids at school because of his mixed-ethnicity family; his biological father lived in distant Louisiana and his mom, who looks white but is part Cherokee, had married a Sioux man and brought their children together into one large, blended family. Racial tensions were noticeable in Poplar at the time, Barry remembers, given the era—the American Indian Movement was at its height in the ’70s—and the town’s location on the Fort Peck Indian Reservation.

Today, just fewer than 1,000 people reside in Poplar, situated at the intersection of the Missouri and Poplar rivers in Montana’s northeast corner. The town’s makeup is about 65 percent American Indian and 35 percent white, and the good jobs in town are found at the Fort Peck Community College or the Bureau of Indian Affairs. More than 30 percent of locals live below the poverty line. One stoplight dangles mid-town, and many downtown windows are boarded up with plywood or protected with metal grating. Cars of youths cruise around town bumping gangster rap and loud Indian drumming and chanting. Beck’s, the downtown store that once displayed a memorial to Kim including her senior picture, a crescent wrench (the suspected murder weapon at the time) and a description of the crime scene in its front window, is still open.

In the days following Kim’s murder, agents from the FBI, Poplar City Police Department, Fort Peck tribal police and Roosevelt County Sheriff’s office logged evidence and canvassed the town searching for suspects. In addition to the bloody palm print on the passenger door of Kim’s truck, 28 unidentified sets of fingerprints were lifted from the truck, initial reports show. A blood-soaked towel was found hanging on a fence a block from the scene. Three separate sets of footprints—one barefooted and two wearing sandals—were photographed along the drag trail and riverbank.

Despite the abundance of clues at the scene, police found no witnesses to the crime. A June 19, 1979, FBI report said that though several suspects had been identified, “Due to some ‘teenage code,’ investigating officers are receiving very little cooperation from those witnesses who might provide some background information.” Still, police were able to successfully re-create Kim’s night up until about 2 a.m., shortly before they estimate she was killed. Between midnight and 1 a.m. she had been seen sitting alone in her pickup at the closed Exxon station on the edge of town following a fight with her boyfriend. One witness saw Kim talking to a man through the window of her truck at about 12:45 a.m. Another saw her driving at about 2 a.m. from the gas station toward the river bottom park just west of town, following several vehicles ahead of her. Yet another reported driving behind Kim’s truck as she drove out of town; that witness recalled seeing several profiles, silhouetted by his headlights, before she turned off into the park.

Kim’s boyfriend, with whom she’d argued earlier in the day, was questioned repeatedly, as was another local boy known for drinking and fighting, but when their fingerprints failed to match any found on the truck, investigators moved on, according to Centurion’s investigation. Barry, like others of Kim’s classmates, was questioned by officials and willingly provided fingerprints that were compared unsuccessfully to the evidence at the crime scene.

As months rolled by, concern grew in Poplar. Even today, residents recall the fear that smothered the town in the wake of Kim’s death.

“There were all kinds of rumors circulating. It was terrible—it was like everyone in the world had their fingers pointing in different directions,” says Margaret Abbot, a high-school teacher at the time who still lives in Poplar.

Some of the fingers pointed in the direction of a group of female friends including Sissy Atkinson, Joanne Jackson and Maude Greyhawk.

Following the crime, a local girl named Orrie Burshia had approached Roosevelt County Sheriff Don Carpenter and reported that her friend Mike Longtree had told her he had been present at Kim’s attack and that he had watched a group of girls beat Kim to death, according to a transcript of Burshia’s interview. He said Kim had fought and tried to get away and begged for help, but to no avail. When police questioned Longtree, according to Centurion, he repeatedly denied any knowledge of the incident.

Darlene Peterson, who was friends with both Kim and Barry, tells the Independent that she knew Kim had been followed and harassed by the girls in the days leading up to her death because she had gone on a few dates with a young man who had recently fathered Sissy Atkinson’s baby. Peterson says Kim came into the grocery store where Peterson worked three days before her death, and Peterson warned her to be careful. Peterson says she knew the girls deserved to be taken seriously because they had followed and tried to corner her many times.

“I told Kim, ‘Don’t go anywhere by yourself, be very careful,’” Peterson remembers. “She said she would be and she bought a six-pack of pop and a pack of cigarettes, and that’s the last time I saw her…as soon as I heard [she had been killed], I was like, oh God, they got her.”

A July 19, 1979, FBI report identifies Sissy Atkinson as a possible suspect. Tribal policeman Calvin First had reported seeing Sissy Atkinson driving Maude Greyhawk’s car out of the riverfront park early the morning of the murder while he was on duty and fueling his car at a nearby gas station, and First supplied Centurion with a written reiteration of that sighting.

On a recent trip to Poplar, the Independent could not locate Sissy Atkinson, and others named in the Centurion report had either moved away or could not be found. During initial police questioning, Sissy Atkinson, Maude Greyhawk and others of their friends who were asked about their activities the night of Kim’s death denied any knowledge or involvement in the crime, according to Centurion. In Centurion’s more recent inquiries, investigators say, attempts to interview Sissy Atkinson have been rebuffed.

Barry is named as a suspect in one FBI report from that period, too, and numerous others were named as suspects, fingerprinted and questioned over the next three years. But despite the abundance of evidence and the involvement of four law enforcement agencies, three years later the crime remained unsolved.

It wasn’t until January of 1983 that an interrogation on the other side of the country brought an unexpected break and an overdue answer to Poplar’s mortifying mystery. Barry Beach, Poplar was surprised to learn, had unexpectedly confessed to bludgeoning Kim to death.

“I want to fully exonerate myself,” Barry Beach says. “That is when I will finally stop fighting this case.”

Barry spent the summer and fall following Kim’s death in Monroe, La., where he had gone to live with his father for the first time. He returned to Poplar around Christmas 1980 to finish high school, then returned to Louisiana and worked for several months before joining up with the Navy. By 1982, he was back in Louisiana, working construction jobs. On Jan. 4, 1983, he was arrested on charges of contributing to the delinquency of a minor for picking up his teenage stepsister and her friend during the school day and taking them to his apartment.

After being held for two days at the local jail on the initial charges, and because Beach allegedly threatened his stepmother on the phone following his arrest, Louisiana investigators began questioning Barry about the unsolved murders of three young women in the area, and they grew increasingly interested when they learned of the unsolved murder in Barry’s hometown of Poplar. The following day, Barry claims, four detectives interrogated him about the Louisiana murders for hours. Barry says they showed him pictures from the crime scenes and the four detectives took turns alternating between accusing him and acting understanding, asking him for hypothetical scenarios of how he thought the killer might have murdered his victims and praying with him. When one of the investigators told Barry God would only forgive him if he admitted to killing the three girls, Barry says he replied that God would just have to not forgive him, because he wasn’t guilty. He remembers that reply setting the investigator off, and how he started yelling at Barry about death by electric chair and how his eyeballs would pop from his head and his skin would sizzle.

“For hour after hour after hour they kept telling me, ‘if you just tell us you did this we’ll let you go,’” Barry says now. “I would have said anything at that point to get out of there.”

At the end of the day, the Louisiana investigators had not only a tape-recorded confession to Kim’s murder—which has since been erased—but confessions to the three Louisiana murders as well, one of the detectives testified at Barry’s trial. Within days of his self-incrimination regarding the Louisiana crimes, however, the confessions were found by Louisiana officials to be “unfounded”; Barry wasn’t even in the state when the murders occurred.

But Barry’s confession to Kim’s death stuck, and on the basis of that confession alone, Barry was charged with deliberate homicide and later extradited back to Montana. Roberta Clencher, Barry’s mom, remembers finding out that Barry had been charged when she saw a headline plastered on the front page of the Billings Gazette.

She says Barry had called her the night after giving his confession and “I could hardly understand him. It didn’t sound like him at all…He told me he confessed and I said why did you confess to something that you didn’t do?…At that point he was totally convinced that he had done it. Besides, he said, ‘they said they would help me prove I didn’t do it.’”

To this day, Barry doesn’t seem to understand how or why he gave a confession he now says is false. He still feels guilty, he says, for allowing himself to be broken, but he also acknowledges the pressure of the situation: “I was a 20-year-old kid being interrogated by four different detectives on four different homicides which I knew nothing about,” he says. “I didn’t stand a chance. They were trained professionals.”

The Louisiana detectives, at trial, denied applying the coercive tactics that Barry claims they used. They also cited numerous waivers that Barry signed and the many Miranda warnings that Beach was issued. Additionally, appeals courts would later find that Barry hadn’t been improperly interrogated or coerced into confessing.

Even after Barry was charged with Kim’s death, none of his family or friends—nor Barry himself—thought he would be convicted; some didn’t even attend his trial because they were so convinced he would have no trouble proving his innocence. Barry says Charles “Timer” Moses, the prominent Billings lawyer Clencher had hired to defend Barry, was among the overly optimistic.

“[Moses] never dreamed I was going to be convicted for the simple fact that to this day, they have never matched me to a single piece of physical evidence from the crime scene,” Barry says. “Not that there wasn’t physical evidence from the crime scene, but none of it matched me.”

But Barry says his hope that the truth would be self-evident to the jury quickly faded once the trial commenced.

In his opening statement, Marc Racicot, then a prosecutor for the Attorney General’s Office who would go on to be governor, told the jury that Barry had not only confessed to the horrific crime, but that a pubic hair had been found on Kim’s sweater that was, “in fact, the defendant’s,” according to trial transcripts. Racicot was exaggerating the findings of crime lab scientist Arnold Melnikoff, whose written report held that a hair collected at the scene was similar to Barry’s. Incidentally, Kim’s autopsy found no evidence of recent sexual activity.

Melnikoff, as it happened, would later be found incompetent and ultimately fired by the state of Washington for his lack of proficiency at hair analysis. His years of testifying for the state of Montana led to the convictions of at least two innocent men, who were later freed. An attorney general’s audit of Melnikoff’s cases undertaken following the exoneration of Jim Bromgard, wrongly imprisoned for rape for 15 years, didn’t include Barry’s case for the simple reason that Melnikoff never made it to the witness stand at Barry’s trial.

When it came time to introduce the hair evidence mentioned in his opening argument, Racicot conceded that it was inadmissable. As it turned out, a Poplar police officer by the name of Stephen Greyhawk, father of one-time suspect Maude Greyhawk, had broken into the evidence room he was supposed to be guarding overnight, thus calling into question the integrity of the evidence. Acting Chief of Police Bobby Atkinson, who discovered the break-in, later wrote a statement in which he described the event and how Atkinson had informed Racicot of the break-in during the trial. Despite its inadmissibility, Racicot referenced that hair again during his closing remarks.

With the exception of Barry’s confession, no witnesses placed Barry around town or anywhere near Kim the night of the murder.

In his closing arguments, Racicot downplayed the existence of the multiple footprints found at the scene, saying the police could have left them, despite the fact that the prints indicated barefeet and sandals. He also scorned the importance of the bloody palm print, saying that police couldn’t rule out the possibility that it was Kim’s. However, multiple police reports specifically conclude that the print belonged to neither Kim nor Barry.

Barry’s confession was the centerpiece of the trial, and Racicot and Louisiana Sgt. Jay Via acted out Barry’s confession before the jury. Via testified that Barry had confessed in front of his lawyer, which was later vehemently protested by Louisiana attorney Paul Kidd, who 11 years after the fact signed an affidavit saying he had met Barry only after the confession was signed.

“Paul Kidd was outraged when he found out about [the prosecution’s statement that Barry had confessed in his presence],” says Peter Camiel, Barry’s Centurion attorney. “When you’re telling a jury someone confessed in front of their own attorney, you’re saying there couldn’t have been any coercion or any other tactics because the lawyer was right there, and that just wasn’t true.”
At first blush, Barry’s confession to Kim’s murder is disturbing. It offers both a motive and a means for how Barry could have killed Kim.

Responding to Sgt. Jay Via’s inquiries, Barry detailed how he went swimming the day before Kim’s murder and walked back to town after getting his truck stuck in the sand, according to a transcript of the confession. He said he met up with Kim later that night at the gas station and drove around and eventually parked by the river to smoke a joint and talk. He said he tried to kiss Kim while they were sitting in the truck and when she repeatedly rejected him he grew angry and picked up a 12-inch crescent wrench and started hitting her. Then he said she tried to escape out the driver’s door and he went around and tackled her, choked her, threw her to the ground, and started hitting her with a tire iron. When she stopped moving, he said, he put her body in a plastic bag, dragged her to the ledge above the river and pushed her over the bank; then he threw the car keys, murder weapon and jacket into the river. Then he wiped off his fingerprints in the truck, ran toward home, stopped to burn his bloody clothing in a railroad car and sneaked home and into his bed.

The other account of that fateful day, the one Barry maintained at trial and continues to maintain today, is that he went swimming with two friends outside of town all afternoon and got his truck stuck in the sandy beach when they tried to leave. After damaging his transmission trying to get it loose, Barry got mad and walked back to town to get some help towing out the truck. But when he got home, he says, he was tired from swimming and fed up with his friends and the truck and went upstairs to bed, deciding to deal with it all later.

His mother, Roberta Clencher, said at trial that she looked in to find her son sleeping early the next morning, and then Barry spent the day after Kim’s death branding cattle at his grandparents’ ranch.

But the prosecution pointed out that the alibi Barry and his mom offered wasn’t foolproof, especially in light of a confession that matches part of Barry’s second account and diverges in the hours leading up to Kim’s death.

According to Camiel, Moses tried to discredit the confession by saying it had been coerced, but failed to address substantial inconsistencies between the confession and the facts of the crime scene.

By trial’s end, Barry says, he knew in his gut he would be convicted. Still, he was shocked when the verdict was read.

“When they actually read the verdict, it was like, wait a minute, stop, let’s back up, something’s wrong here,” Barry says. “But you can’t say nothing. You’re instructed by your lawyer not to react in any way, shape or form, and so that’s what you do.”

Today, Barry and Centurion Ministries says the 1984 trial was severely flawed on multiple counts. Besides Racicot’s repeated references to a hair that was inadmissible and linked to Barry only by a discredited scientist, they say critical evidence wasn’t disclosed to the defense prior to or during the trial.

The information Centurion says was withheld includes the taped statement from Burshia, who talked with an alleged witness who Burshia said claimed to have been present when a group of girls beat Kim to death. It also included a report from Poplar resident Richard Holen, who told the police he had been driving behind Kim’s truck heading west out of town at about 2 a.m., about half an hour before Kim was killed. He said he saw four or five people sitting in the cab before it turned off into the park. In a 2002 written statement to a Centurion investigator, Holen reiterated the account he reported to Poplar police.

Both statements contradict the notion—essential to Barry’s confession—that Kim had been with only one person when she was killed.

A close examination of Barry’s confession itself reveals significant incongruities with the crime scene.

Richard Leo, an expert and consultant on police interrogations and confessions and a professor at the University of California, Irvine, was retained by Centurion Ministries to evaluate Barry’s confession and case. He issued a report concluding that Barry’s confession was “almost certainly (if not certainly) false and should not have been relied on or given any weight by the triers of fact who convicted him.”

More specifically, Leo writes: “If one knows nothing about the facts of Ms. Nees’ murder, the scenario presented in Mr. Beach’s post-admission narrative appears plausible, perhaps even compelling…once one studies the objective facts of Ms. Nees’ murder, however, it becomes clear that Mr. Beach’s post-admission narrative does not fit with the crime scene facts, fails to demonstrate guilty knowledge, and is replete with factual errors, physical impossibilities and statements that are completely at odds with the existing physical and medical evidence in this case.”

For instance, according to Leo’s findings and crime scene reports: Barry says in his confession that Kim’s truck was parked next to the train bridge, right by the river, but it was actually 257 feet—almost the length of a football field—away from the river bank. Barry told his interrogators he wasn’t sure if Kim was bleeding after he attacked her in the truck, but the interior of the truck was thoroughly splattered with blood and the seat was soaked; Barry says he choked Kim but the autopsy found no such marks; Barry said Kim was wearing a brown sports jacket and plaid blouse, but she was wearing a white sweater and blue and red blazer; Barry says he pushed Kim over a ledge and into the river, but the 10-foot-high ledge at the scene is too far from the river’s edge for her to have ended up in the water, and footprints were found in the mud at the river’s edge; Barry says he put Kim in a plastic bag and dragged her from the truck to the river, but there was no evidence of a bag or its fragments along the drag trail; Barry says he wiped his fingerprints off the truck but 28 sets of unidentified fingerprints, four palm prints and one bloody palm print were found on the truck that match neither Kim nor Barry.

The phenomenon of false confessions is not widely understood by the public but they have been found to exist with alarming frequency, which has led to requirements in some states that all interrogations be recorded. The Innocence Project, a national nonprofit legal clinic that works to exonerate inmates using DNA evidence, reports that of its first 130 exonerations, 35 involved false confessions, while 101 involved mistaken identification and 21 involved faulty microscopic hair comparison matches. Of the 38 exonerations secured by Centurion Ministries over the years, founder Jim McCloskey says, four resulted from false confessions.


Barry says his determination to free himself hardened the day he walked into prison and found himself housed next to two death row inmates.

“I made a promise to myself when I was in that situation that no matter what came my way in this facility, I would spend every day of life in here trying to live it as normally as I possibly could, as if I was on the streets,” he says. “Because I believed that I belonged out there.”

Barry lost his first appeal when the Montana Supreme Court ultimately upheld his conviction, finding that Barry’s confession hadn’t been coerced or resulted from an improper arrest. In the years after, despite help from a series of pro bono attorneys, he was again turned away by the Montana Supreme Court, and ultimately the Ninth Circuit Court of Appeals, because Barry didn’t raise certain issues—such as his ineffective counsel claim—within the statutory time limits and because he submitted no new evidence that merited revisiting the Supreme Court’s previous finding that his confession hadn’t been coerced.

Over the years, Barry began filing Freedom of Information Act requests on his own and spent hundreds of hours in prison researching his own case and the law. He developed a file and began sending it around the country to people he thought could help him whenever he saw a new book on wrongful conviction issues, or watched TV shows about it. In 1985, Barry says, he saw Centurion Ministries’ Jim McCloskey on “60 Minutes” and sent him a letter.

“You’re an innocent man sitting in prison, and you never, never give up and you try everything you possibly can, even when you’re told you can’t. You’re fighting for your life,” Barry says.

McCloskey left the business world for divinity school and founded the nonprofit Centurion Ministries in 1980 after he began visiting prison inmates. He helped free his first innocent man in 1983, and since then the organization has grown to have five full-time employees. Centurion receives more than 1,000 letters seeking help each year, and satisfies itself through thorough investigation that a potential client is completely innocent of the crime—meaning no direct or indirect involvement or knowledge of the crime—before committing its resources to a case. Due to high demand and limited resources, McCloskey says Centurion can take anywhere from five to 10 years to accept a case, and once work is underway, it’s taken between five and 18 years to free clients. After nine years of waiting, Barry’s case was taken on by Centurion in 2000, and since then investigators Richard Hepburn and Paul Henderson have made more than 30 trips to Poplar and conducted more than 150 interviews around the country with people connected to the case. That process has only strengthened Centurion’s resolve that Barry is innocent.

“We haven’t learned one thing—not one thing in the field—that in any way incriminates Barry or creates suspicion in our minds,” McCloskey says. “The only evidence against Barry was his confession and that confession was full of contradictions and was at odds with the crime scene. It’s an obvious case of an innocent man.”

Hepburn says Centurion’s investigation hasn’t found a single person who saw Barry out and about the small town of Poplar the warm summer night of Kim’s murder.

And Centurion Ministries’ investigation has also unearthed new information suggesting that Kim was murdered by a group of girls, not Barry.

A Poplar man who was 10 years old at the time of Kim’s murder and lived on a hill overlooking the crime scene came forward to Centurion in 2002 and signed a statement describing what he witnessed the night of the murder. The man states that he woke up in the middle of the night to go to the bathroom and heard a girl screaming, and saw people fighting down below. He slipped on his shoes and crept down the hill and along the railroad tracks and watched from behind some bushes as a group of girls—he named Sissy Atkinson, Joanne Jackson and Maude Greyhawk—beating Kim. “At first she was inside the truck. They dragged her out and threw her on the ground,” he writes, and then they took turns hitting her with a tool. He says he saw three people drag Kim to the river, and that besides Kim’s truck, three other vehicles were there. He says he didn’t see Barry at the scene. The Independent has withheld his name due to safety concerns, and couldn’t locate him for this story.

In 2003, a Poplar man named Dana Kirn was stabbed to death by Tracy McGowan, who later pleaded guilty to the crime, according to the Associated Press. Centurion’s investigation posits that Kirn’s death was linked to his bitter divorce and custody battle with Maude Greyhawk, which was scheduled for a final court hearing two days after Kirn’s death. Several people, including Kirn’s parents and siblings, told Centurion that Kirn was going to reveal at that hearing that Maude had confessed her participation in Kim’s death to him several times during their marriage.

Additionally, Centurion has collected many statements and letters from Poplar community members who say they’ve been present when Sissy Atkinson bragged about “getting away with the perfect crime” several times over the years.

“Like most people in the community, I believe Kim was beaten by several females, most of whom still live in the area. I have been at parties where they have bragged with statements like, ‘we’ve killed before and we’re not afraid to kill again,’” one letter reads. “It is frustrating for me that my friend is in jail and the real killers are walking the streets with arrogance and without remorse.”

While many Poplar locals are willing to talk about their knowledge and/or beliefs regarding the girls’ involvement, very few are willing to do so on the record. Over and over they cited to this reporter fear for their safety and that of their families; Poplar is a small town, they say, and they can’t afford to make enemies. Centurion investigator Hepburn says this has been one of the most frustrating aspects of the Beach case. He tells a story about interviewing a woman who heard Sissy bragging about Kim’s death, and says when he told her he believed it wasn’t Barry, but other perpetrators, who were responsible, “She just said ‘Duh!’ She said she grew up in Poplar and never knew anyone who didn’t know that,” Hepburn says.

Centurion has taken this information to the attorney general’s office and to Roosevelt County Attorney Fred Hofman. Hofman has facilitated Centurion’s efforts by having an investigator conduct more interviews and compare, unsuccessfully, some of the fingerprints from the crime scene to a fingerprint database. He says it would take some kind of “smoking gun”—like another confession—to officially reopen the case, and that nothing discovered thus far merits that type of action.

“There are some issues that make you wonder, but at this point there’s been nothing that jumps out at you and says, ‘Gee, we need to make this case priority number one and get him out of prison’ or anything,” Hofman told the Independent. “But I am intrigued by the case.”

The main active legal issue concerning Barry’s case is a recent petition for DNA testing of physical evidence from the crime scene. A court order permitting DNA testing was granted in 2005 but the state says it can’t locate the hair Racicot told the jury belonged to Barry, nor can it locate the bloody towel that was found near the scene, more than 100 slides with hairs from the scene, cigarette butts collected from the immediate area, or Kim’s jacket. McCloskey has personally searched through every file in the Roosevelt County Attorney’s office for the missing evidence, and the state has assured Centurion that neither the state crime lab nor the attorney general’s files contain the evidence.

Camiel says that evidence could be a critical component to resolving lingering questions about whose DNA was present at the scene.

“If the hair that Marc Racicot was telling the jury about was DNA tested and it’s not Barry Beach’s, there’s no doubt in my mind he would get a new trial,” Camiel says. “That’s one of the easiest ways to resolve this case.”

Assistant Attorney General Mike Wellenstein, who’s argued for the state against Barry’s appeals since 1992, as well as against his recent DNA petition, says it’s not uncommon for evidence to be destroyed following a case’s first appeal, although the state can’t locate records even tracking the destruction of the Beach case evidence.

Wellenstein downplays the role of the missing evidence: “Even if that evidence was there, I don’t think it would make any change in this case. You have a valid confession and that’s what it was based on from the very beginning.”

Contacted for a response to Barry’s exoneration efforts, Racicot, now the president of the American Insurance Association, seconds Wellenstein’s confidence in Barry’s confession.
“Barry Allan Beach confessed to the crime, so I think that, frankly, with all that history, any notion that there was somehow a mistake in the process is wanting for credibility,” Racicot says.
Regardless, Barry and Camiel can point to dozens of cases across the country where confessions have proved false, and mistakes were made. With the backing of an inaccurate confession and a lack of evidence tying Barry to the crime, they hold firm to their claim that Barry’s case is one such mistake.

Back behind the prison walls, Barry holds his gaze steady, and one gets the sense that he’s been waiting a long time to speak these words: “I would like to look you in the eye as well as Gov. Schweitzer and anyone else and tell you, I did not kill Kim Nees; I was not present when Kim Nees was killed; I had nothing to do with the murder of Kim Nees.”

In mid-August, Camiel filed an application for clemency with Gov. Schweitzer. Schweitzer told the Independ-ent Oct. 4 that his legal staff was still reviewing the application. Informed that Barry hopes for an opportunity to speak to him face to face, Schweitzer says it’s too early to commit to that, but notes that he offered to meet with inmate David Dawson prior to his August execution and thus, “it wouldn’t surprise me that I would meet with individuals.”

Eric Stern, Schweitzer’s senior counselor, says he doesn’t think the governor’s office can or will respond to the application unless Schweitzer receives a recommendation from the Board of Pardons. In November, the Board of Pardons rejected Barry’s pro se application to restructure his sentence so he might be eligible for parole; his 100-year sentence is one of the harshest sentences ever meted out in Montana for a single homicide by a juvenile, according to Centurion Ministries. The Parole Board issued a one-paragraph decision that it had found “insufficient cause” for a public hearing on his case. “In the Board’s opinion, you have not satisfactorily proven your innocence of the crime…” the board’s decision read in part.

Camiel knows there is some debate among state officials regarding the circumstances under which the governor can act on a clemency application, but says, “we think as an executive he has that authority.” He says the governor could also ask the attorney general’s office to reopen the case or to lift deadline restrictions currently preventing a new court from hearing Barry’s case.

Though Barry aches for exoneration, and is constantly working on legal efforts toward that end, he also says he’s nervous about the prospect of reentering the free world after 24 years of institutional life and facing social stigmas he doesn’t think he will ever be able to shake.
“I want to go and live my life. I want to go and do some of the things that I probably would have done in the last 24 years,” Barry says, rattling off a long list of unfulfilled dreams that includes elk hunting, attending a professional football game and NASCAR race, coaching a little league team, seeing the country.

Barry laughs at the prospect of choosing what he would do first: “I probably would have my mother take me to Kentucky Fried Chicken so Mom and I could sit down for a bucket of chicken.”

Friend Darlene Peterson, who keeps in weekly contact by phone and daily contact by mail with Barry, says they talk about all the things he will have to relearn and adapt to if he is eventually released. She designed a website about his efforts and has met with state legislators in recent months about Barry’s case and potential avenues for addressing it. She helped gather signatures from more than 150 of Poplar’s residents on a petition urging Gov. Schweitzer to take action on Barry’s behalf.

She hopes to one day soon be able to teach Barry how to drive in traffic and see for himself how the prices of blue jeans and gallons of milk have changed in 23 years. Barry’s mom, Roberta Clencher, jokes about the lag that Barry will feel: “He thinks he’s going to come out and wear his brown corduroy bell bottom pants and silk shirts.” But there’s a sadness in the joke, too, and she says she sometimes feels like she’s stuck in the early ’80s, when her son was young and full of dreams.

Barry still has his dreams, but 23 years behind bars have taken nearly everything else away from him, and he’s pragmatic about the life that may be waiting for him on the other side of the prison walls.

“I’m 44 years old and I’ve never had the chance to be married or to have a career,” he says. “I don’t have a 401K to go home to; prison doesn’t have a retirement plan. You don’t get out of here after twenty-some years and have a secure future. Most importantly, even if I beat this and get to go home, society will never, ever accept me, because every time I go sign up for something I have to mark that little box that says I’m a convicted felon. So I’m fighting with everything I have to go back to a society that’s never going to accept me.”

But despite the challenges he knows stand between him and his release, and whatever comes after, Barry says he puts his trust and his hope in the truth. He says that’s the one thing no one can take away.

“What I do have is something that an old traditional medicine man once told me: The truth needs no alibi,” Barry says. “And I do have the truth. I’ve got almost 24 years of incarceration and I’ve never once lost sleep because of a guilty conscience, because I know that I didn’t kill Kim Nees…So on the truth alone I will walk out of prison. They can call it justice, they can call it a pardon, they can call it whatever they want to call it—it’s the truth.”