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.
-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