Dateline   |  August 02, 2013

'Return to Poplar River' Part 4

32 years after the murder of Kim Nees, a judge holds a hearing to decide if Barry Beach deserves a new trial

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This content comes from Closed Captioning that was broadcast along with this program.

>>> by 2009 every effort to free barry beach from the state prison in deer lodge , montana, and there were many, had failed. do you really think you're going to get out of here?

>> yes, sir.

>> but despite the years, the stress, had all taken a toll on barry 's mom. after bobby testified at a failed clemency hearing, her health gave out.

>> it was a stress related heart attack.

>> like your body falling apart.

>> yeah. i thought god's promise.

>> there was something sad about her unshakeable certainty in the face of unkept promises. didn't this seem like almost --

>> hope springs eternal.

>> they did a legal hail mary , a motion that found its way to montana supreme court . it asked for a new judge to hear a whole new appeal of beach's conviction.

>> just give us a fair judge. that's all we're asking for.

>> so they asked and then they waited. and the request was approved. the montana supreme court asked a judge with a reputation for toughness to consider the new evidence. in august, 2011 barry walked into the courtroom to a chorus of applause. by then, "dateline's" report on the murder of kim nees had aired, and supporters were there in the courtroom, with judge e. wayne phillips .

>> and another thing the "dateline" report had done, turn up new witnesses.

>> when the whole story was told and the "dateline" piece, these witnesses finally decided, you know, i know something that might be able to help out.

>> that long running rumor the real killers of kim nees were actually girls from her own high school class? the judge would hear much more about this, about, for example, the alleged admissions of guilt by sissy atkinson.

>> that i had no knowledge of it. i was not there.

>> this man testified that sissy herself told him the story several times. told him about the group of jealous girls , how they hit kim with a tire iron , rolled her body into a river.

>> i know for a fact girls murdered kim nees and i know he's not a girl.

>> and then there were two witnesses who came forward to say they heard the same story from joann jackson.

>> she told us that she and a group of girls took another girl by the water. she said they dragged her, beat her, and things got out of hand and she died.

>> joann, why would they do this? and she says she was smart and she was going away to college .

>> but if there was a star witness among the many who appeared, stef ee eagleboyd, ten years old, when she sat on a bluff overlooking the poplar river and heard the sound that's ever since been her recurring nightmare.

>> i could hear all these girls hollering and saying get her and just other girl saying don't, please.

>> judge phillips questioned the witness himself.

>> did you hear screaming?

>> yes.

>> what kind of screaming.

>> like a horrible scream. a high pitched, angry scream, hollering, something you won't forget.

>> she said she never came forward because of the other things she saw from her perch on the bluff that night. soon after the girls stopped screaming, she said, a police car cruised up to the place where it happened and lingered briefly and left. the police must have known and done nothing, she decided. so she said not a word until she heard barry 's story. after all the witnesses testified, it was the state's turn and the state contended that all of them waited too long to come forward, and none was very credible, that barry 's confession was much more compelling.

>> by every court, the confession has always been upheld.

>> the state saw it one way, centurian another.

>> we were cautiously optimistic. barry was more confident than we were. he said guys, this judge is going to reverse this conviction. he says i just got a good feeling about this judge.

>> oh, but good feelings and desired results do not always agree. after all, the montana attorney general believed as did sheriff dean mallon that none of the evidence exonerated barry or pointed to multiple attackers.

>> due to lack of other injuries, we were dealing with one perpetrator as opposed to a large group of people.

>> besides, he said, barry 's confession and conviction settled the matter.

>> if the conviction is expunged, that's a travesty because barry beach killed kim nees.

>> they vacate the judgment, it says that your belief and the veracity of that confession was false.

>> no, what it says is that someone else killed kimberly nees and no one else killed kimberly nees.

>> your confidence is overwhelming.

>> good.

>> this was the moment for that old clich?, the jury was out.

>> all rise.

>> except in this case it was a jury of one. the judge, e. wayne phillips , all up to him now.