EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, April 17, 2008

Life's A Beach, Take 2: Why The Transcript Of Barry Beach's Confession Possibly Should Have Been Inadmissible At His Murder Trial

Previously, I blogged about the case of Barry Beach, the Montana man convicted of the 1979 murder of eighteen year-old high school valedictorian Kim Nees on the Fort Peck Indian Reservation in Montana.  Some readers may have seen the two hour Dateline NBC special on the case; those who missed it can watch it through a link provided on the Montanans For Justice website.  My previous post contains a few factual details about the case, and I will now give a very brief recounting of the facts that are relevant to my point in this post, which is that it is questionable to me whether the centerpiece of the prosecution's case -- Barry's confession to Louisiana authorities -- should have been admissible against Beach.  The facts are as follows:

     -Nees was found dead in June 1979;

     -On January 4, 1983, Barry Beach was arrested by Louisiana authorities for contributing to the delinquency of a minor;

     -Louisiana authorities, including Detective Jay Via, thereafter interrogate Beach with regard to the abduction murders of three young Louisiana women;

     -The authorities learn that Beach was from Montana, learn about the unsolved Nees case, and begin questioning Beach about Nees' death as well;

     -Beach confesses to the murders of the three young Louisiana women and to the murder of Nees at the Ouachita Parish Sheriff's Department;

     -The confession is tape recorded, and a secretary creates a typewritten copy of the confession, which Detective Via later reviews and corrects for accuracy;

     -Louisiana authorities later determine that Beach did not commit the Louisiana murders, but they extradite him back to Montana to stand trial for the Nees murder;

     -two to three months later, Lieutenant Alan Warren Nall, the custodian of records at the Ouachita Parish Sheriff's Department, erases the tapes of Beach's confession;

     -because the tapes were erased, Montana prosecutors use the typewritten copy of Beach's confession as the primary evidence leading to his murder conviction;

     -Beach launches several challenges to the verdict, the latest of which was rejected a few weeks ago, with more appeals to come.

Now, those supporting Beach might dispute some of these facts, and they have made many arguments in support of his case, some of which can be found here and here.  On the other hand, the State of Montana has many arguments as to why Beach should have been convicted, some of which can be found here.

Let's, however, ignore those other arguments and any dispute about the above facts and instead ask:  If the above facts are correct, should the typewritten copy of Beach's confession have been admissible at his trial (and will it be admissible if he is granted a new trial)?  Well, pursuant to Montana Rule of Evidence 1002, "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by...these rules...."  In other words, to prove the content of the recordings of Beach's confession, the original recordings were required, except as otherwise provided by the Montana Rules of Evidence.

Pursuant to Montana Rule of Evidence 1004(1), "[t]he original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith."  So, if Nall erased the recordings in "bad faith," the typewritten copy of Beach's confession was inadmissible; if he did not destroy it in "bad faith," the typewritten copy was admissible.

Now, let's look at the deposition of Nall to see why he erased the tapes (look at page 25 of this document):

     -Q.  Okay.  Now, could you tell me where these tapes are today?

     -A.  I disposed of them.  I erased all tapes.

     -Q.  Okay, and would you explain to me the reason why you erased these tapes in this investigation?

     -A.  Originally, Barry Beach was arrested on a Fugitive from Justice warrant from Montana and in the process, in the process of our Court system [?] is then determined whether to be extradited back to Montana or be re-leased.  Now, once it has gone through our Court system and a disposition is put on my complaint stating what the Court so ordered, and if it is so ordered then that he be returned to Montana or if he is ordered released, that is a disposition of clearing or final disposition of that complaint.

     -Q.  Okay, so it is my understanding that the tapes were erased after Barry Beach had been extradited back to the State of Montana?  Is that correct?

     -A.  That is correct.

     -Q.  Okay.  Were you aware of an investigation going on with Barry Allen Beach concerning a Contributing to the delinquency of a juvenile which pre-empted this particular investigation?

     -A.  No.  Not to my knowledge.  It's possible it could be.

Now, let's look at Via's testimony from Beach's clemency hearing (I'm not sure if there's a copy of this testimony publicly available, but I have a copy, and the relevant testimony is on pages 691-692):

     -Q.  What happened with the tape [of Beach's confession]?

     -A.  It was erased.

     -Q.  And did you erase the tape?

     -A.  Absolutely not.  Liuetenant Alan Nall, who was the custodian of record -- when I went -- and it was notified we were having a motion to suppress in this case.  I went upstairs to acquire not only the tapes of the recorded confession but of Carolyn Beach and those other people involved and couldn't find them.  And I went to Lieutenant Nall and asked him where the tapes were, and he said he had erased them.  And I went livid.  I said, "What do you mean you erased these tapes?"  He said, "I erased them."  He said, "They weren't our tapes; they were another state's tapes.  I needed the tapes."  And he erased the tapes.  And I'm serious, I went into a total -- I really, really got mad.  As a matter of fact, that's one of the reasons he was subsequently removed as being custodian of record.  The minute I learned that, I contacted Mr. Racicot, who was with the state attorney's office, to let him know that the tapes had been erased and that they were erased by our custodian of record."

So, that leaves the question:  Was this bad faith?  And my answer is that I'm not sure.  I actually addressed this point in my recent article, Even Better than the Real Thing, where I noted that courts have made it difficult for the opponents of secondary evidence -- such as the transcript -- to prove that the proponent lost the original in bad faith.  And two of the cases I cited lend support to the State of Montana.  In Estate of Gryder v. C.I.R., 705 F.2d336, 338 (8th Cir. 1983), the court found that IRS employees who negligently destroyed original tax documents because they thought that all litigation involving them was completed did not act in "bad faith."  And in United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996), the court found that an attorney who recorded over a tape recording in the ordinary course of business did not destroy the original in "bad faith."

Beach supporters, however, have a good argument that Beach's case is different from either of these two cases.  Unlike in Gryder, Nall had no reason to believe that litigation involving Barry Beach was over; in fact, Nall's deposition indicates that he was not even aware of the Louisiana charges against Beach and was only aware of the Montana charges against Beach which led to his extradition.  Thus, Nall seemingly had every reason to believe that the Montana case to which the recorded confession related was ongoing based upon his extradition.  Furthermore, unlike in Workinger, Nall's destruction of the tapes was not done in the ordinary course of business (although Nall claims the contrary), but instead was a manifest error which led to Nall being removed from his position as custodian.  Beach supporters could argue that his case is more similar to cases such as Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 128 (S.D. Fla. 1987), where the court found that an employee of the defendant destroyed original documents in "bad faith" when he wilfully destroyed them while knowing that litigation involving them was pending.

In other words, it's a close call how a court would rule on this issue, and it appears to me that it's an argument that Beach's attorneys never raised at his initial trial.  In other words, if Beach is granted a new trial, it's an argument his team should definitely raise, and based upon the centrality of his confession to his conviction, a ruling excluding the transcript could very well be fatal to the State's case. It is important to note that Via could still testify about his recollection of Beach's confession because he had independent personal knowledge of the confession that was not dependent upon the recordings (he heard Beach confess); however, it seems to me that the typed transcript of the confession is much more compelling evidence, meaning that its exclusion would be very damaging to the State's case on possible re-trial.  It will certainly be interesting to see if and how this and other issues play out for Beach




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I hadn't heard of this until just a few minutes ago. I clicked on a link, read up a bit, and then ended up here. I can't believe some of the things the state trys to pull off. This is really ridiculous. It's obvious that Beach did not do anything wrong and that the detectives and state were just trying to find somebody to blame, reasonable or not. I will absolutly support Beach, 100%. The fact that this is even happening is just aggrivating. I really hope this campain is successful. He deserves justice just as much as Kim does. Good luck, and I hope I can help.

Posted by: Shyla Allred | Apr 28, 2008 8:42:06 AM

what?? >>-The confession is tape recorded, and a secretary creates a typewritten copy of the confession, which Detective Via later reviews and corrects for accuracy;??? All should have been done in the presence of 2 witness's
then "sealed" This case is totaly scarey , a blatant "ABUSE OF POWERS"

Posted by: Dale S | Aug 6, 2008 3:43:27 PM

It is pretty obvious what has happened here, with Mr. Beach. The crooked bastards who are responsible for railroading him should all either be shot or take his place in prison.

Posted by: D. Newman | Jan 25, 2009 9:45:03 PM

If people looked into the things that happen in montana they would be very very surprised there are around forty unsolved murders in a population of around 900. Raciot has been accused of covering up the "heroin harbor" for years so why wouldn't he make sure an innocent man be imprisoned. It is so amazing that witness after witness are dismissed. maude grayhawk admitted kicking Kim in the head. When raciot was govenor so many people requested investigations of their county and somehow the crooked ones were never investigated. Not surprising alot of county official were somehow or someway connected to raciot

Posted by: j | Feb 10, 2009 12:35:32 PM

When is Montana going to stop prolonging the truth? It's been 27 years too long! Ms. Kim Nees is just as deserving as Barry for justice!!

A few of the FACTS that are documented and undeniable most of which are found on the www.montanansforjustice.com website.

From the beginning Montana had help railroading Barry. While in Louisiana custody 3 1/2 years AFTER Ms. Nees murder Barry was coerced into signing 3 different confessions for 3 different murders!

Mike McGrath the then Attorney General of Montana own investigation before the Board of Pardon's and Parole hearing, received statements, which state how 4 different people are known to have had the same necklace that belonged to Ms. Nees. Autopsy reported a piece of broken chain was found on her person. These admissions alone should be enough to free Barry!

I didn't hear Mike McGrath's office bring it to the attention of the BOPP members or Barry Beach's attorneys. Aren't they supposed to disclose this information?

To this day there are still 10 UNIDENTIFIED FINGER PRINTS AND ONE BLOODY PALM PRINT! I'd put money on a bet the FBI's database holds the secret to opening those prison gates! This case should never have been closed until every one of those prints had been identified.

Last but not least I didn't find one single document showing where any of the suspected natives gave any of their finger prints, blood or hair samples for comparison. One was known to have clumps of hair missing from her scalp directly after Ms. Nees murder! Fact is the FBI cleared Barry Beach after the murder!

Barry's a political prisoner and it's evident. Mike McGrath is now the Chief Justice of Montana's Supreme Court. Barry's been waiting for 15 months on a decision from the court. How much longer is it going to take for Barry and Ms. Nees to get justice in Montana?

The evidence is clear, the murderers have talked! If Barry can be treated this way in Montana so can the rest of us!

This needs to end NOW!

Thank you

Posted by: barrybeachsupporter | Nov 20, 2009 12:11:18 PM

After watching the 2 hour documentary, reading the transcript parts, for the first time in my life, I have decided to communicate with an inmate, Barry, because I believe in him so much and I sorely hate the injustice I have no doubt he has suffered because Someone else absolutely refuses to Man Up and admit in public that their way of thinking and form of Justice is just wrong. I'm sorry but I too am from the south and at 64 yrs. old, I have known Many people that are So redneck, they would rather die than to admit "I'm was wrong", or even say, "I'm sorry". Thank God I wasn't raised that way. I pray that before I die, I see that Barry is a free man.

Posted by: sandra smith | Sep 28, 2010 4:31:38 PM

My wife and I watched the 2 hr Dateline program about the murder of Kim Nees and we are outraged over such an obvious miscarriage of justice. At the very least, the complete lack of ANY forensic evidence that places Barry Beach at the scene of the crime meets the “reasonable doubt” standard. No juror in their right mind could have found otherwise were it not for prosecutorial misconduct, inept legal representation and questionable police tactics or all of the above. Barry Beach has been denied a fair trial for over 25 YEARS and the poor residents of Montana have been “thrown under the bus” by their own officials in front of the entire nation. I only wish I could do more than just post a comment...what a travesty!

Posted by: Michael and Janet Van Natten | Oct 22, 2011 9:24:50 AM

Hard to believe in this day and age that this travesty of justice can occur. Hard to believe. An innocent man behind bars and the actual murderers are out and about. Shameful. With all the evidence avaiable and the Supreme Court simply dismisses it!?! He was coerced into a false confession. Just so shameful. I feel for him and for his mother and friends who have to witness such obvious distortion of fairness. I'm sure if he was the son of one of the justices, they would be scrambling to set him free. Oh wait, their child would have had good representation from the get go. So, so shameful.

Posted by: Ann Brown | Aug 2, 2013 7:19:59 PM

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