Category Archives: Judicial

Montana Supreme Court Candidate Compares Pregnant Women to Animals in Emails about Abortion Ban

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An email from a candidate for the Montana Supreme Court surfaced this week in which he compared pregnant women and fetuses to animals.

Suggesting that if it applies to animals, it applies to women, VanDyke sent an email from his state government account to an Ohio attorney recommending that Ohio amend an amicus brief to reference animal pain statutes to bolster the case against women’s medical privacy in Ohio.  You can read VanDyke’s email and his edits to the referenced amicus brief here.

Screen Shot 2014-10-16 at 10.00.57 PMThe fact that VanDyke spent so much time on right-wing causes in other states like this has recently become a focal in the Supreme Court race. You see, during VanDyke’s very brief stint as a Montana Department of Justice employee, he spent much of his time chasing down right wing lawsuits in other states rather than working on Montana laws as he was asked.  

According to emails from high-ranking DOJ management, KXLH reported, this created frustrations and problems for the other attorneys who had to pick up his slack while VanDyke pursued his wingnut agenda in other states instead of doing the Montana work we taxpayers were paying him for.

Screen Shot 2014-10-16 at 9.53.15 PMEven worse, VanDyke fails to grasp that women, unlike animals, have fully functioning brains and the ability to make choices.  VanDyke isn’t just comparing women to animals: he’s assuming that women are incapable of making our own medical decisions and that, like animals, he should be making choices for us.

Montana doesn’t need a judge who applies animal laws to women.

But at least with these remarks coming to light one mystery is solved.  We now know why the National Republican Party is spending more on this race than VanDyke has raised himself for his entire campaign.  This is a party for which comparing women to animals to try to justify taking away our basic constitutional rights is a key tenet.

TEA Party Republican Rep. Keith Regier made statewide news in 2011 when he compared pregnant women to livestock in the Montana legislature.  And TEA Party Republican Rep. Krayton Kerns earned national derision when he compared Georgetown Law student Sandra Fluke to a rutting bulldog for advocating for contraception coverage. And there have been many others who have done this on the national scene.


BREAKING: National Far Right Working to Flip MT Supreme Court

Today, a national exposé  by Right Wing Watch revealed that right-wing religious extremists and the corporate right have been quietly working to pour massive amounts of out-of-state money into the Montana Supreme Court race hoping to change the balance of the Montana Supreme Court. 

As Miranda Blue writes for Right Wing Watch, the extremists are:

hoping to topple a court majority that has bucked the U.S. Supreme Court on campaign finance issues and could soon hear cases with national implications challenging the state’s marriage equality ban and its abortion clinic buffer-zone law.

The national right hopes to buy a Supreme Court seat for Lawrence VanDyke. You can read the whole exposé here.




Former Colleague Says Voters Should be Concerned about VanDyke

The email below from a former colleague of Supreme Court Candidate Lawrence VanDyke was forward to me recently.   Mr. Black is very high up within the Montana Department of Justice and thus has unique insight.  I’ve pasted the email in its entirety below.

As you know, after a few decades in private practice, I have spent the last few years working as the Civil Bureau Chief in the Montana Department of Justice.  I have spent considerable time lately defending constitutional challenges to Montana laws, including First Amendment challenges to our election laws.  I am concerned about the potential ramifications of the upcoming election, especially with respect to the Montana Supreme Court.  You may not be closely following the race between Justice Mike Wheat and Lawrence VanDyke, so I want to take this opportunity to share a few thoughts and let you know how important it is to re-elect Justice Wheat.

Montana’s Supreme Court elections have been non-partisan for nearly 80 years, and for good reason.   A Montana Supreme Court justice has a very important job, and candidates should be judged on their own qualifications, not by whether they are Ds or Rs.  VanDyke, however,  insists on turning the Supreme Court election into a partisan race, as demonstrated by his campaign website:  At a recent candidate’s forum, VanDyke’s partisan attacks were on full display (audio link::  Listening to the forum takes a little time, but I hope you agree it is worth it.

VanDyke came back to Montana from Texas in order to work for Attorney General Tim Fox in early 2013.  Few people in Montana know much about VanDyke.  He resigned from his position in the Attorney General’s office in January 2014, and has not worked there for months (even though his website still characterizes Attorney General Tim Fox as his “boss”).   I worked with VanDyke for over a year, and had the opportunity to see him in action.  He has little experience with the Montana legal system, and showed little interest developing a working knowledge of how to practice in our courts.  It is my opinion that VanDyke lacks the maturity and work ethic we should expect of someone aspiring to be a Supreme Court justice.

In a recent Great Falls Tribune article, the Director for the Center for Law, Philosophy, and Human Values at the University of Chicago Law School, Brian Leiter, recalled his experiences with Mr. VanDyke several years ago on the issue of a book review written by VanDyke about “intelligent design.” (link:  Professor Leiter believes Mr. VanDyke’s writing on the topic was “intellectually dishonest” and notes:  “Are his religious commitments so strong that it’s going to lead him to ignore the law when they conflict? In that book review, he ignored the science, he ignored the philosophy and he ignored the logic. That would be bad news if he does the same thing as a judge.”

I believe everyone should be free to practice their chosen religion and I admire persons of faith.  Judges, however, should only be concerned with the law.  Based upon my recent experiences with VanDyke, I share Professor Leiter’s concerns — especially with respect to Montana’s election laws.  For example, based upon freedom of religion under the First Amendment, VanDyke has told me he does not believe Montana should be able to regulate speech by religious organizations in our elections.   It would not be difficult for “dark money” interests to use religious organizations as a front to avoid regulation or disclosure.  I am concerned that VanDyke will not cast aside his personal beliefs on these sorts of issues if elected to the bench.

An article on  the recent candidates’ forum discusses the candidates’ views on First Amendment and “dark money” and partisan politics  in judicial elections (links: and ).  My conversations with VanDyke lead me to believe that he does not support many (if any) of our important election laws, including  Montana’s attempts to require disclosure of those behind “dark money” and their activities in Montana elections.

Mike Wheat is longtime Montana resident and practicing attorney.  He is a decorated combat veteran.  He obviously cares about equal justice for all.  Wheat is a distinguished jurist, and deserves to be re-elected.  I hope you agree, and will take the time to discuss this important election with your fellow attorneys, friends , and clients.

Thank you for taking the time to read this email.

I do not speak on behalf of the Montana Department of Justice or Attorney General.  I do not sent this email in coordination with, or even with the knowledge of, any candidate or organization.  I am simply speaking out as a Montana voter on this very important Supreme Court election.  And I would be happy to talk with you further about these matters if you’d like, just let me know.

Michael G. Black

Attorney at Law

P.O. Box 318

Clinton, MT  59825-0318



Meet the Corporations that Want a Montana Supreme Court Seat

Corporate Lobbyists, GOP Operatives Set Up PAC to Back TEA Party Supreme Court Candidate

A barrage of mailers arrived in Montanans’ boxes this week, sent by a group calling itself Montanans for a Fair Judiciary PAC.   The newly-created PAC is spending big money to put another TEA Partier into the Supreme Court who will represent corporate interests over yours.

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A look at who is behind the mailers makes it clear that the Montana Republican machine is kicking its big money power brokers into gear for VanDyke. Here we see they have set up yet another corporate astroturf PAC to use big money to drown out citizens’ interest in the Montana Supreme Court race.

Let’s look at who’s really behind this newly created “group.”   The so-called “Montanans for a Fair Judiciary PAC” was filed on Sept. 9, 2014 with the Montana Commissioner of Political Practices Office. The PAC’s officers are listed as Jesse Luther, Wendy Smith, and Jake Eaton. Smith and Eaton both list 47 North Communications as their place of employment and e-mail contact.

Readers of this blog know Jake Eaton well.  He’s the former Executive Director of the Montana Republican Party–the one who was forced to resign over the scandal to make it more difficult for 6,000 Montanans to vote.   Eaton has also worked for former  TEA Party Congressman Dennis Rehberg and the National Republican Congressional Committee.

Eaton’s firm was the one Jason Priest and Ed Walker used to do the dirty work of the dark money group they set up to buy the last Supreme Court race for TEA Partier Laurie McKinnon. But they weren’t satisfied with just one seat. Priest, Wittich, Essmann and others were the TEA Party were caught emailing each other about their plot to take over the supreme court when a reporter their plot was leaked to the press last session.  

And yes, this is the same group is the group Art Wittich and Jason Priest used send mailers out to attack moderates who tried to support medicaid expansion last session.

Wendy SmithThe treasurer of the Montana for a Fair Judiciary PAC is Wendy Smith, who is not identified on the 47 North website, but does have a 47 North e-mail address and lists it on the PAC’s official paperwork, as you can see here: Montana for a Fair Judiciary PAC – Filing with Office of Commissioner of Political Practices

Leo Barry, Corporate Lobbyist, has set up a political action committee to influence the Supreme Court race in his favor.

Leo Berry, Corporate Lobbyist, whose firm has set up a political action committee to influence the Supreme Court race in his favor.

The third agent of the Montanans for the Fair Judiciary PAC is Jesse Luther, an attorney with Browning, Kaleczyc, Berry and Hoven, P.C., one of Montana’s largest corporate law firms. Luther is an Associate of the firm, serving its two notorious top extractive industry and large corporate lobbyists, Leo Barry and Mark Taylor.

Mark Taylor, Corporate Lobbyist

Mark Taylor, another Corporate Lobbyist whose firm set up a PAC to influence the outcome of the Supreme Court Race

If you’re not yet familiar with the work of Berry, Taylor and Luther, you’ll know their clients.

Here are a few as listed at the Montana Commissioner of Political Practices):

Coal Mountain Mining, LP

Montana Contractors Association

National Association of Publicly Traded Partnerships

3M Traffic Safety and Security Division

Intoximeters, INC


Montana Self Insurers Association

Consumer Data Industry Association

Phillips 66

MHA, Montana Hospital Association, “An Association of Montana Health Care Providers”

BNSF Railway Company

Benefis Healthcare

Anheuser-Busch Companies

Ash Grove Cement Company

and several others…

(Don’t you just love that they can work for Monsanto, Big Booze and the Hospitals at the same time.)

The fact that Leo Berry and Mark Taylor are going after Mike Wheat and putting big money behind VanDyke is indeed telling. These corporations want a court that represents their interests over ours.


P.S. With every day that goes by it becomes more clear that Lawrence VanDyke is a TEA Party Republican with strong ties to the GOP’s right wing and big corporate interests. One only needs follow the money to see the truth–you won’t get it from VanDyke, which is troubling.


Reason Number #458 Lawrence VanDyke is Lying about Not Being A Right-Winger

TEA Party Supreme Court candidate Lawrence VanDyke is trying desparately to hide his extreme-right views and political affiliations.  He’s doing this for two reasons – first, his views are far outside the mainstream, and second, he plan to  continue to accuse Justice Mike Wheat of being unable to make impartial decisions and claim that he alone can do so because he has no political beliefs or affiliations whatsoever.  If the truth gets out, his strategy won’t work.

Yet VanDyke is having troubles keeping the truth hidden.  His campaign finance reports show he dropped $2,000 on Chris Shipp via Mr. Shipp’s LLC Clear Sky Strategies, as reported in the most recent campaign report from VanDyke.

Mr. Shipp is the former Republican Party Communications Director, and a longtime GOP political operative. Shipp also worked for the TEA Party-controlled Montana legislative “leadership” as well.

Obviously, VanDyke can hire anyone he wants, but he can’t hire the Montana Republican Party’s Comm Director and still claim he has no political affiliation.  I predict there is lots more to come out on VanDyke’s extreme-right beliefs and his true affiliations. Stay tuned.


GUEST POST: No Room on Supreme Court for Fringe Ideologues Who Reject Evidence

by Justin Robbins 

An interesting idea has recently been posited by one of the men seeking to serve the people of Montana as a Justice on our Supreme Court.  The candidate is Lawrence VanDyke, and he asks us to trust that his personal views will not influence his interpretation or application of the Constitution and laws of the state.  It is a tactful, articulate and ironic way to request voters adopt a willful ignorance to the content of his career, while simultaneously awarding credit for his resume.  

It is actually a very clever strategy; relying chiefly on public indifference and cynicism either toward this race, or politics in general.  History is rife with examples of this approach, from Mitt Romney’s assurances about his Mormon faith, to fairy tale grandmas with such big teeth.  However, I submit that the stakes, a seat on Montana’s highest court, are too high to accept VanDyke at his word, or to simply shrug and apply an egalitarian “they’re all crooks.”  We must ask what it is he’d have us ignore. 

Turns out it’s an ominous list. In his role as Solicitor General under Attorney General Tim Fox, VanDyke sought to join Alabama filing a brief in the New Mexico case essentially asking the legal standing for discrimination based on immutable personal characteristics.  He also co-wrote a brief with the state of Arizona seeking to apply enhanced government regulations to healthcare.   Bear with me on the high-dollar cover language…it’s part of a larger point. 

The hat-trick here is a 2004 book note VanDyke wrote, for Francis Beckwith’s “Law, Darwinism, and the Public Education,” supporting the teaching of creationism, or “Intelligent Design”, in public schools. His explanation of this is the rest of the larger point:

“Most of the book note simply reported Dr. Beckwith’s arguments,” VanDyke said. “My limited commentary focused on whether First Amendment law was being improperly influenced by the genetic fallacy something that is an interesting academic question for constitutional law in many contexts well beyond intelligent design.”

Did you catch it?  Notice, if you will, his unqualified use of the term “the genetic fallacy” as if he is simply referencing an accepted status of the field genetics, and by association evolution, as fallacy. An artist with the language, this one…a real wordsmith. But, if you take the time to read between his lines, not Supreme Court Justice material.    

The clear common denominator throughout VanDyke’s resume is a conspicuously cloaked religious dogma.  In fairness, a casual review of modern politics indicates many people, especially in rural states like Montana, are just fine with this, and may think it long overdue. However, I would ask you to consider why VanDyke is at once both a proud champion of his causes, and a humble apologist only serving at the direction of AG Fox. If you’ve read this far and still find yourself leaning VanDyke, please consider these final thoughts. 

In 1801, Founding Father and then President Thomas Jefferson responded to a letter from the Baptist Association of Danbury, Connecticut, who had written requesting protection from “infringement on their religious liberty”.  This is the very same language VanDyke employs to argue a New Mexico photographer should have the government bless and codify his right to discriminate against gays.  

The offending party in 1801, from whom the Baptists sought relief, was a rival church; the Congregationalists of Danbury, Connecticut.  It was in his response to the Baptist pleas that President Jefferson assured all people of faith there would “forever be a wall of separation between church and state.” 

What is often forgotten, yet equally often exploited by candidates like Mr. VanDyke, is that the establishment clause in the First Amendment was designed not to stifle religious liberty, but to ensure my religious views could not be imposed on you. The alternative is a slippery slope, at the bottom of which is theocracy; modern examples of which include the Islamic State and the Taliban.  Therefore, whether we agree with Mr. VanDyke’s obvious positions on gay marriage, abortion, and religion in the public schools, it is incumbent on us to evaluate the paths he takes to arrive at his conclusions.

It is critical to have, and Montana deserves Supreme Court justices who will review cases before them on the individual facts and merits, with respect to the rule of law.  That reasoned debate among our leaders be argued rationally and logically, with attention given to the intent of our legislators, and the well being of our citizens and communities. That model is not reflected in either the career or resume of Lawrence VanDyke. 

Supreme Court Candidate Used State Position to Pursue Rightwing Activist Agenda

A very interesting development in the race for the Montana Supreme Court today.

The Great Falls Tribune has uncovered through a public records request that TEA Party candidate Lawrence VanDyke has spent his time on the public payroll chasing down rightwing cases in other states and filing briefs to support the rightwing causes in those states. Presumably he must believe that this  helps raise his profile with right-wingers in advance of his Supreme Court run.

Indeed, the public records were uncovered hot on the heels of a campaign ad VanDyke posted on his website in which he claims he will “apply the law as written” and attempts to paint himself as above political partisanship. VanDyke has apparently balked at his responsibilities as Montana’s solicitor general and instead pursued an activist agenda in other states in cases to block equality for LBGT citizens, eliminate the right to privacy for women, and repeal gun safety laws passed in other states.

But VanDyke did more than just spend your tax dollars chasing rightwing lawsuits in other states. He emailed photos of himself to one  out-of-state attorney working on the right wing cases.  He sent Andrew Brasher, the solicitor general of Alabama, a picture of himself that read: “semi-auto firearms are fun to hunt elk with, as the attached picture attests.”  

Apparently, he then solicited campaign contributions from at least one lawyer working on these cases as well.  As I reported here earlier, this same Andrew Brasher, the solicitor general of Alabama, took time out from trying to shut down women’s health clinics in Alabama, to write VanDyke a $320.00 check.

One wonders what conversations took place between VanDyke calling to say “hey I’d love to help you with your right wing cause in Alabama” and the Alabama attorney saying “hey I’d love to send you a check for your Supreme Court race.”

So VanDyke is not as he presents himself, and Montanans should be very wary of electing him to the Supreme Court.

You can read the whole article on the Great Falls Tribune website here or download a PDF of the article here. 

Montana is at the Forefront of National Fight Against Election Corruption

A Montana case is the next battle in the fight to keep elections from being for sale to the highest bidder by keeping campaign finance limits in place.

Now, a group of leading national legal non-profit advocacy groups including Free Speech for People, former Montana Supreme Court Justice James Nelson, the American Independent Business Alliance,  the American Sustainable Business Council, the Campaign Legal Center, Common Cause, Justice at Stake and the League of Women Voters are joining Montanans in the fight to keep Montana’s campaign finance limits in place.

The groups joined the defense of Montana’s campaign finance limits with an amicus brief and and amici brief in Lair v. Motl.  They are urging the U.S. Court of Appeals for the Ninth Circuit to overturn a District Court ruling that struck down Montana’s political campaign contribution limits.  Earlier, a District Court disregarded both Ninth Circuit and Supreme Court precedent to overturn Montana’s limits on contributions to state candidates, including judges, from individuals and political parties.

In Lair v. Motl, American Traditions Partnership board member Doug Lair wants campaign finance limits abolished.  Several prominent Republican office holders and candidates in Montana caught up in the infamous Meth House Scandal, in which documents belonging to the infamous American Tradition Partnership (ATP), were found in a Colorado meth house.  The documents incriminated TEA Party Senate leader Art Wittich, Mike Miller, Derek Skees, Pat Wagman, Jerry O’Neil, Bob Wagner, Dan Kennedy, Scott Mendenhall, Wendy Warburton, Ed Butcher, and Tom Burnett to name a few.  Wager, Burnett, Miller, O’Neil and Wittich are currently running for office.

Here’s how Ron Fein, Legal Director of Free Speech For People, explains it:  “Campaign contribution limits are justified by an interest in ensuring political equality for all, regardless of access to wealth. When political equality is jeopardized, democracy itself is at risk.”

Justice James Nelson, a former Justice of the Montana Supreme Court, and on of the court’s most respected justices, said, “Candidates for political office and elections should not be for sale to the biggest spenders. The Supreme Court has decreed that money equals speech; and contribution limits help to level a playing field tipped in favor of the big spenders by Citizens United.”  I could not agree more.

The District Court overturned the Montana’s candidate contribution limits applicable to individuals and PACs, even though the limits have already been upheld by the Ninth Circuit.

In addition to the limits on candidate contributions from individuals and PACs, the lower court struck down Montana’s limits as they apply to contributions from political party committees. Montana does not limit the amount that any individual or PAC may give to political parties, but instead restricts the “aggregate” amount a candidate can receive from his or her political party.

Surprisingly, the issue hasn’t been covered by Montana news outlets, even though its the next step in a nationwide battle to protect America’s and Montana’s elections from corruption.

After all, this case comes on the heels of the Supreme Court’s recent decision in McCutcheon v. FEC, which struck down longstanding limits on the total amount of money wealthy individuals could contribute to federal candidates in an election cycle. As with the Citizens United ruling which now allows unlimited corporate dollars into our elections, the high court’s McCutcheon decision is unleashing further money into the political process from wealthy interests.

We’ll see if it gets more attention by Montana reporters after the op-ed by Justice Jim Nelson and Ron Fein appeared in yesterday’s Billings Gazette.

Four Reasons the Affordable Care Act Is Not Going Anywhere

TEA Partiers briefly went nuts this morning.  That’s because a D.C. circuit court’s three-judge panel ruled that Congress did not intend for anybody in states that use the federal marketplace to get the insurance subsidies available to people in other states.

But the frenzied celebratory consumption of snack cakes was short lived.  Just hours later a three-judge panel in the Fourth Circuit Court of Appeals found that Congress did intend people receiving coverage through the federal government to get subsidies.

The issue at stake here is of particular interest to Montanans because we’re one of the 27 states that uses the federal marketplace.

But the Affordable Care Act subsidies aren’t going anywhere.  Here’s why:

1. The DC appeals court decision was made only by a three judge panel, not the full DC court of appeals.  The federal government says it will appeal to the full DC court of appeals. This means that all eleven judges would review the ruling.  The D.C. Circuit as a whole is much more liberal than the panel of three judges who heard the case.  It has seven judges appointed by Democrats and only four appointed by Republicans.  This means that the full court is likely to reverse the earlier decision.

2. The Fourth Circuit also liberal-leaning, so even if the Affordable Care Act’s opponents requested a full review to the Fourth Circuit, their ruling upholding the Affordable Care Act would still stand.

3.  As Vox reported earlier today, this means full panels of both circuit courts are likely to uphold the Affordable Care Act subsiies.  This means the Supreme Court is actually less likely to weigh in.  They are more likely to get involved with cases when  two lower courts with inconsistent rulings.  Of course they can choose whether to weigh in or not.

4. Finally, its pretty ludicrous to try to argue that Congress intended that the subsidies would only apply in states that run their own health insurance marketplaces.  “It is…clear that widely available tax credits are essential to fulfilling the Act’s primary goals and that Congress was aware of their importance when drafting the bill,” the Fourth Circuit Court ruled. Experts up and down the line agree that they couldn’t possibly have meant anything else.

The impact to tens of thousands of Montanans and millions of Americans who would no longer get a price break on insurance would be devastating.

Commissioner of Securities and Insurance Monica Lindeen reported recently that there are 30,000 people who were previously uninsured who gained coverage in Montana under the Affordable Care Act.  If the subsides were stripped from these middle class and low-income people, their premiums would have been an average of 76 percent higher in price than what they are paying now. Many of these people would no longer be able to afford health coverage.

If the DC panel’s ruling were upheld it would be one of the most devastating blows to middle class America in the nation’s history. It puts into perspective just how devastating a blow a faction of TEA Party legislators dealt Montanans last session.  That’s when they voted to bar Montana from accepting the money to pay for 100% of the health care coverage costs for 70,000 working poor Montanans.

Montana uses the federal marketplace because the Montana legislature rejected two bills in 2011 to create a state-based marketplace: HB 124 and HB 620 .

You can read the DC Circuit Court of Appeals anti-Affordable Care Act 2-1ruling here: Halbig v. Burwell,No. 14-5018 (D.C. Cir. July 22, 2014)

The Fourth Circuit ruling upholding the Affordable Care Act 3-0 is here: King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014).


Barry Beach Tries for Clemency, Again

Barry Beach, serving a 100 year prison sentence with no possibility of parole, has applied to the Montana Board of Pardons for clemency.  If he gets what he wants then the Board will recommend to Governor Bullock that Beach be made eligible for release, having now served 30 years in prison for a 1983 crime he says he did not commit. Bullock could then accept or reject the recommendation.

An all-star lineup of politicians has written letters on Beach’s behalf including Conrad Burns, John Tester, Brian Schweitzer and John Bohlinger.  Bullock’s duty as Attorney General was to argue in support of Beach’s conviction, but that doesn’t preclude him from now allowing Beach to be paroled.  But this is all assuming that the Board gives Beach a favorable ruling.  If the Board turns Beach down then it’s the end of the line for Barry.  He will live out the rest of his life in prison unless he lives to the age of 118.

In 2011, a district Judge in Lewistown ordered Beach released after a hearing was held in which new doubt about his conviction was raised.  Six months later the Supreme Court overturned the order and sent him back to jail.  Beach took advantage of his freedom and started his own business, and otherwise lived out his brief respite without incident.

The doubts surrounding Beach’s conviction are well known to anyone who has followed the sizable amount of journalism on the case.   The short story is that his conviction was based entirely on a confession, which he says was coerced by the policemen who had him in custody.  There was no forensic evidence of any kind that tied Beach to the crime.

The Missoula Independent did a very thorough write-up a few years ago, which I encourage you to read.  To summarize, in 1983 Beach was convicted of the murder of Kim Nees, a high school classmate.  Beach was 17 at the time of the murder.  There were many fingerprints and footprints found at the crime scene, which was a muddy river bank where Kim Nees’s body was found face down in shallow water not far from her truck.   None of these prints matched Beach.  There were eyewitnesses who told police investigators that they had seen a gang of women in the truck with Nees shortly before she was murdered.

Beach was arrested in Louisiana three years later, for a misdemeanor.   While in custody, the police took his confession to four murders, three local murders and the Nees murder, which they learned about after calling up to Poplar Montana to ask local police about Beach.  The three local Louisiana murders which Beach confessed to were later determined to have nothing to do with him because he hadn’t even been in the state at the time of their occurrence.

Beach has always claimed that his confession to the Nees murder, in which he admits to beating Nees with a wrench for rebuffing his sexual overtures, was coerced with deprivation, intimidation, threats of torture and the electric chair, and many deceptive promises made to him by the four officers who were present when they took the confession.   The confession was taken in a notoriously corrupt Louisiana sheriff’s office. There was a tape recording of Beach’s confessions including his confession to the Kim Nees murder, but it vanished, as did all of the physical evidence collected at the crime scene, including items such as cigarette butts with unidentified fingerprints on them.

And then there was the prosecutor, the future Governor Marc Racicot who tried the case. In his opening statement to the jury, Racicot announced that he would soon be showing the jury a single pubic hair that had been discovered on the sweater of the victim and which had similarities to Beach’s hair.  But Racicot never produced any such piece of evidence.  Worse, he referenced the hair a second time, in his closing statement.

Racicot also called to the stand one of the the Louisiana cops who took Beach’s confession, an officer named Jay Via.  Via testified that Beach’s Louisiana attorney was in the interrogation room when Beach confessed. But Beach’s attorney, upon hearing this (he was in Louisiana during the trial), denied it vehemently in a sworn affidavit, essentially accusing Racicot and Via of perpetrating a blatant lie into evidence.

Three local girls (two of whom had immediate relatives who were working in the Poplar police department at the time of the murder, including one who broke into the evidence room during the trial) were among the initial suspects, in part because they were known to hold a strong animus against the victim.  In the years since, a number of locals in Poplar have come forward to say that they have heard first hand admissions of guilt by at least two of these women.  These locals testified at the 2011 hearing that led to the release of Beach by district judge E. Wayne Phillips who presides in Lewistown.

Judge Phillips, you will appreciate, used to work for Tea Party wingnut Art Wittich  when Wittich was counsel to GOP governor Stan Stevens.  So Phillips is no bleeding heart, apparently, and might even be a Tea Partier.

Montana Attorney General Tim Fox has stated that Beach should remain in prison for the next 70 years because he confessed and was convicted, and thus is guilty.  This has been the line out of the AG’s office since the early 2000s.

Nobody will ever know what took place on the night that Kim Nees was murdered, nor has Beach proved his innocence despite what his advocates might say.  Innocence cannot be proven here, I suppose, unless one of the other suspects admits under oath or on video tape to having committed the murder.

But given the history of this case and the facts surrounding the trial, it’s hard to imagine that the Board of Pardons would not at least make a recommendation to the Governor that Beach’s sentence be restructured so that he can apply for parole.  We should all be concerned with a case in which a 17 year old kid gets sent away for life with no possibility of parole, in which an a prosecutor with political ambitions presents lies to a jury to substantiate his case, in which a questionable confession is the sole piece of evidence, and in which much evidence was destroyed or simply disappeared.

This is Beach’s third try at clemency.  The first time he represented himself.  On his second try he was represented by pro bono attorneys from Centurion Ministries, an outfit which has freed over 100 wrongly convicted individuals, usually on DNA evidence but sometimes on false confessions.  That was in 2006, and he sought a full pardon and a declaration of innocence.  He lost.  This time, he is simply seeking a commutation of his sentence to time served.   We will see how he does.

Even if he had been proved guilty with overwhelming evidence, I might still support an opportunity for parole after 30 years of prison given his age at the time of the crime.  In fact, the U.S. Supreme Court no longer allows life without parole to be meted out to a minor, even in cases in which guilt is overwhelmingly obvious.  But with the amount of doubt surrounding his conviction, justice probably requires Beach to be free now.

Fox apparently disagrees.  I’d be interested to know how Racicot feels.  All Racicot has ever said to the press is that he has “no doubt that Barry Beach is guilty as charged.”   That was in 2007.  He has not specifically ever addressed the size of the sentence, and whether it might be a tad too heavy given the case history.  My guess is that we won’t hear from Racicot on this issue.  Because he probably knows, in his heart, that parole eligibility would be proper; and yet to express support for it would be to admit that he has doubts in his head about what he did in the courtroom in 1983.