Barry Beach was finally released from prison last month, after 30 years in prison. He was convicted in 1984 for the murder of 17-year-old Kimberly Nees near Poplar, Mont. He was sentenced to 100 years in prison. His road to freedom is about agonizing and painful as it gets. His story also shows how just one wrongful conviction can expose the underlying flaws in our criminal justice system — profound flaws that undoubtedly plague thousands of other cases about which we’ll never know.
The story begins with the brutal murder of Nees in 1979. Because he was a neighbor and had once dated Nees’s sister, the then 17-year-old Beach was initially questioned by police but was never charged. He later moved with his father to Ouachita Parish, La. Beach was arrested in 1983 after his stepmother reported him to police for helping his sister skip school. In reporting him, Beach’s stepmother also told the police that Beach had once been questioned in a Montana murder investigation. At the time, Ouachita police were investigating the local murders of three young women. They quickly figured Beach was responsible for all four killings.
After two days of questioning, Beach confessed to the crimes. But there was one huge problem: He wasn’t in Louisiana at the time the three women there were murdered. He was eventually cleared of those murders. But Beach didn’t have as solid an alibi for the night Nees died. So he was sent back to Montana, where he was charged with her murder.
The fact that Beach confessed to killing Nees at the same time he falsely confessed to killing three other women should have been a sign that perhaps his confession was due more to coercion from his interrogators. (This is not uncommon.) That didn’t seem to faze then-District Attorney Mark Racicot, who proceeded to trial and won his conviction. Racicot would, of course, go on to become an immensely popular Montana governor as well as chairman of the Republican National Committee, and was initially President George W. Bush’s choice to be U.S. attorney general before withdrawing from consideration.
At the center of all of this was a police investigator named Jay Via. It was Via and another investigator who got Beach to confess. His confession was the only solid piece of evidence against him. Beach quickly recanted and said the confession had been coerced with a brutal interrogation and threats of execution. Via denied all this. The interrogation was supposed to have been recorded. That recording would have revealed whether Beach was telling the truth about being coerced. At trial, Racicot claimed that in his confession, Beach revealed details that only the killer could have known. An audio recording would have revealed whether that was true, or whether police had provided those details to Beach themselves (a phenomenon that occurs even among well-intentioned and conscientious investigators). But the audio recording never turned up. Conveniently, Via would later say that he had accidentally recorded over the interrogation. All the other physical evidence that the authorities claimed linked Beach to Nees’s murder has since been lost or destroyed by law enforcement.
Nees’s murder was brutal. She’d been severely beaten, suffering at least 20 blows to the head. She was found after police followed a trail of blood leading from the pickup truck she had been driving. There were dozens of fingerprints on the truck and multiple fresh footprints leading to her body. Police also found a bloody palm print on the passenger-side door that belonged to neither Beach nor the victim. Local speculation has long been that the attractive Nees, who had been named class valedictorian, was killed by a group of jealous classmates. But Racicot set his sights on Beach. It took the jury six hours to convict.
In 2000, Beach’s case was taken up by the advocacy group Centurion Ministries. The organization quickly discovered some fundamental problems with Beach’s trial. Shortly after the murder, for example, a police officer broke into the evidence room. He also happened to be the father of one of the girls some locals suspected in Nees’s killing. Because of the contamination, none of the evidence was supposed to have been used against Beach. Yet twice during the trial, Racicot claimed that a pubic hair allegedly found on Nees’s sweater belonged to Beach. That probably sounded pretty compelling to the jury. But it was also problematic, for a number of reasons. First, the hair was part of the contaminated evidence that had been ruled inadmissible. Second, we know today that hair fiber matching (as opposed to matching DNA taken from hair) is mostly junk science. Third, the crime lab analyst whose report Racicot relied upon in making those statements (which were misconduct in and of themselves) was later fired from his position in a Washington state crime lab for incompetence — specifically, his incompetence at hair fiber matching. The same analyst also gave testimony to help convict to other men who were later exonerated. Fourth, there was no evidence that Nees had been sexually assaulted. In fact, there was no evidence that she had recently been sexually active.
But it was Via that contributed most to Beach’s conviction. Though Racicot claimed that Beach had given details about Nees that only her killer would know, Beach actually gave inaccurate information about where Nees’s truck was parked, how she was killed and the nature of her wounds. More damning, Beach also gave information that wasn’t only inaccurate, it was inaccurate in a way that implicated his interrogators. Via, for example, claimed that Beach knew what Nees was wearing the night she died. But he didn’t. As it turns out, Via himself had initially been mistaken about Nees’s clothing. Tellingly, in his confession Beach described the clothes that Via mistakenly believed Nees had on the night of her death, not the clothes she actually wore. That’s pretty strong evidence that Via told Beach what to say.
In 2013, attorneys for Centurion Ministries received a trove of documents demonstrating that there was plenty of reason to doubt Via’s credibility. According to internal disciplinary reports, Via “had been suspended without pay on at least four occasions, was placed on a one-year probation, was ordered to undergo an examination by a neurosurgeon and was twice threatened with the possibility of termination.” More notably, “Via was also repeatedly admonished at various points throughout his career for failing to file timely investigative reports in major cases, including homicide cases.”
Shortly after Beach’s alibi cleared him of the killings of the three women in Louisiana, Via secured confessions from two other men, Henry Lee Lucas and Ottis Elwood Toole, for one of those murders. For cracking the case, Via was profiled in a 1983 article in the New York Times. Here’s an excerpt:
When Sgt. Jay Via talks about Henry Lee Lucas and Ottis Elwood Toole, his voice tightens with emotion and he breaks off.
”They’ll blow your mind,” the Oachita Parish officer said of the two men, who, he went on, speak calmly and in vivid detail of murdering scores of women and men as they traveled across the country, and of sometimes mutilating the bodies.
”You sit down and talk to them for 20 minutes and you come away a babbling idiot,” he continued. ”You can’t get it out of your mind.”
The Times article never mentioned that the authorities had first wrongly charged Beach. Instead, the article noted their caution.
Prosecutors in Florida and Louisiana are moving carefully before going before grand juries, waiting for the police to corroborate evidence or pull together what evidence they have.
To be sure, Lucas and Toole were troubled men. But at least one voice of caution in the article proved prescient:
Tom Whitlock, the lawyer representing Mr. Lucas in Denton, Tex., said: ”I don’t believe he’s committed all the crimes they say he has, not 150. I have my doubts he killed 100. Certainly there’s a temptation for law-enforcement agencies to clear up their books this way. I’m getting too many calls from agencies who have a body and want somebody to blame it on.”
That turns out to be what happened in Louisiana. In 2007, DNA testing cleared the two of the murder for which Via had persuaded them to confess. The tests matched another man already serving a life sentence. Lucas and Toole were eventually convicted of multiple murders and accused of many more, including that of Adam Walsh, son of the TV crime-fighting personality John Walsh. But nearly all of those convictions were based on confessions, some of which have since been disproved. There have since been some serious questions about whether the men were really serial killers or just compliant dupes of law enforcement officials too eager to close unsolved cases.
Even if the two did commit some of the murders attributed to them, for every murder falsely attributed to them, the real killer went free. But more to the point of this post, here we have a police investigator who was somehow able to extract not one, not two, but three false confessions for the same crime.
In 2009, “Dateline NBC” aired a report about Beach’s case. After that report, new witnesses came forward to cast further doubt on his conviction. A Montana district court judge threw out Beach’s conviction, ordered a new trial and released Beach on bond while awaiting that trial. Incredibly, 18 months later the Montana Supreme Court reversed that ruling, reinstated Beach’s conviction and ordered him taken into custody. Beach voluntarily turned himself in, and was taken back to prison. (Incidentally, journalist John Adams pointed out at the time that two of the four judges who reinstated the conviction were appointed to the bench by . . . Mark Racicot. One of them worked for Racicot when he was the state attorney general, and Racicot endorsed her when she ran for a position on the state’s supreme court.)
Last year, Montana’s Board of Pardons and Paroles again denied Beach’s request for clemency. Shortly after, the state legislature passed a law granting the governor the authority to overrule the board. That law took effect in October. Last month, Gov. Steve Bullock signed an order granting Beach clemency, which finally allowed for his release.
I noticed Via’s name in Beach’s case because back in 2008, I also investigated and wrote a story about a case in which he was involved. In 1998, Jimmie Duncan was convicted for the 1993 murder of 2-year-old Haley Oliveaux. The case against Duncan was largely built on testimony from the controversial Mississippi-based medical examiner Steven Hayne, and from bite mark evidence procured by the now-discredited dentist Michael West. In a video obtained by Duncan’s defense team years after his conviction, West can be seen repeatedly jamming a mold of Duncan’s teeth into the skin of the girl’s lifeless body, a practice multiple forensic specialists have said is malpractice at minimum, and may amount to felony evidence tampering.
But Duncan was also convicted due to testimony from a jailhouse informant. Michael Cruse testified that Duncan confessed to him while the two shared a cell for a single day in December 1993. Years after his conviction, Duncan’s attorneys were able to track down a third man in the cell who signed an affidavit stating that not only did Duncan never confess, he insisted on his innocence, despite Cruse’s repeated efforts to get him to incriminate himself. Duncan’s attorneys later obtained signed affidavits from two other inmates who were in the Ouachita Parish jail at the same time as Duncan. Both say a law enforcement official promised them leniency if they’d lie and testify that Duncan had confessed.
The investigator who was working with both Cruse and the two who claim they were asked to lie? Jay Via.
Charles Parker, who had worked as an informant for the FBI, wrote a letter of complaint to the district attorney’s office about the incident. In a later interview with Duncan’s post-conviction attorneys, he described how an investigator named Jay Via approached him and fed him information about Duncan’s case. “He gave me details of the crime, saying that the child was less than two years [old] and that she had been anally raped,” Parker said “He told me that when I came forward I was to say that Jimmie had confessed to biting the child while he was raping her.”
Parker said that in exchange for his testimony, Via promised “he would talk to the DA and would get my sentence reduced.” Parker said he refused, because he thought Duncan was being railroaded. Via then allegedly threatened him with repercussions.
As for Cruse, he asked for immunity from his own burglary and theft charges in exchange for his testimony against Duncan. The theft charge was later dropped. Neither Cruse’s request nor Parker’s letter was turned over to Duncan’s attorneys before trial. Duncan was convicted in 1998 and sentenced to death.
Despite his long (and largely kept under wraps) disciplinary history, Via was never fired from Ouachita Parish. He retired after a 29-year career and several promotions. Mark Racicot today serves on various boards and is a partner at Rudy Giuliani’s law firm. He still maintains that Barry Beach is guilty.
Barry Beach is free today, largely due to the work of Centurion Ministries, some dogged journalists, and an army of activists.
Jimmie Duncan is still on death row in Louisiana.
When I first wrote about Duncan’s case, I thought Steven Hayne and Michael West were the most disturbing aspects of his conviction. And to be sure, between them the two have tainted thousands of cases and sent who knows how many innocent people to prison. But you could say the same thing about Jay Via. Duncan’s case is merely where the two intersect.
Racicot committed clear misconduct, was never disciplined for it, and went on to have a successful career in politics, thanks largely to his start as a prosecutor. The prosecutor in Duncan’s case was never disciplined for failing to turn over the exculpatory evidence in that case, either. Then there’s that hair fiber analyst in Beach’s case who sent other innocent people to prison. There are the thousands of other cases in which similar forensic evidence was misused or overstated. There are the judges who let all of this happen, and the county officials who refused to fire Via. To my knowledge, there has been no official effort to review all the other cases that may have been tainted by Via. In Mississippi, Attorney General Jim Hood is not only refusing to conduct a thorough review of cases involving Steven Hayne and Michael West, he has tried to block others’ efforts to do so.
So many implications — and that’s just from these two murder cases, 15 years apart, in just one state. I’ve found that if you pick at the threads of a wrongful conviction, you’ll find that this is often the case — that the problems that caused are not only not isolated to that case; they’re also pervasive, systematic and entrenched. Extrapolate these problems across 50 states and the federal courts, and you start to get a sense of just how expansive and overwhelming the problems in the criminal justice system really are. Never mind fixing the criminal justice system. We still haven’t even stopped the bleeding.