State v. Barry Allan Beach

STATE OF MONTANA, Appellant, Plaintiff and v.

BARRY ALLAN BEACH, Appellee. Defendant No. DA 11-0723. August Submitted on Briefs 2012. May 14, Decided 2013. Rehearing Denied June 2013 MT 130.

370 Mont. 163.

302 P.3d 47. General; Fox, Attorney Timothy C. Montana Appellant: For General; Helena. Plubell, Attorney K Tammy Assistant Toavs; of Terrance L. Terrance Lee Law Offices Appellee: For Seattle, Camiel, P.S.; Toavs; Point; Garniel; Peter K. Mair & Wolf Washington. Opinion of the Court.

JUSTICE RICE delivered The State of Montana appeals from the order of the Fifteenth ¶1 Court, County, Judicial District Roosevelt granting Barry Allen Beach (Beach) (Nees). a new trial in the matter of the homicide of Kim Nees Court, We reverse the District and address this issue: Did the District concluding Court err that Beach was entitled to a new trial because he had demonstrated his actual innocence?

PROCEDURAL BACKGROUND In early morning 16,1979, hours of June police officers of the Fort Peck body Tribe discovered Nees’s floating Poplar River. She had bludgeoned 7, 1983, been to death. On January Beach Nees, and, bim killing 13,1984, confessed to on April jury convicted of deliberate homicide. The years court sentenced Beach to 100 in the Montana State Prison possibility without the parole. Beach challenged has his conviction in the courts and applied for

clemency. In Beach appealed to this Court. upheld We conviction Beach, and sentence. State v. 217 Mont. 705 P.2d 94 (1985). petition filed a for postconviction relief. We petition dismissed Beach’s because it had beyond been filed the five- year statutory limitation period, and Beach did not submit new evidence establishing that he did not kill Nees. Day, Beach v. 275 (1996). 370, Mont. 913 P.2d 622 Beach then petition filed a for habeas corpus court, in federal asserting his actual innocence. United States Magistrate Judge Anderson recommended that Beach’s petition be denied because procedurally Beach was barred from presenting his claims, constitutional “presentation and his of‘new evidence’ d[id] not finding warrant a ofactual innocence as an exception to the procedural (D. bar.” Beach v. Mahoney, 6, 1997). CV-92-92-BLG-RWA Aug. Mont. Federal District Court Judge agreed Shanstrom Judge with Anderson and denied Beach’s petition, holding that Beach’s evidence was insufficient “to finding warrant a of actual innocence ....” Beach v. (D. Mahoney, 1998). CR 31, 92-92-BLG-JDS Mont. Mar. The Ninth (9th 1999) Circuit McCormick, affirmed. Beach v. 191 F.3d 459 Cir. (table). 2005, In Beach filed an application for clemency executive (the Board). the Montana Board of Pardons and Parole The Board denied application Beach’s because he had “not satisfactorily proven [his] innocence of the crime or submitted newly discovered evidence showing complete justification or non-guilt.” (Emphasis in original.) In 2006, Beach application submitted an to Governor Brian Schweitzer (the who referred it back to the Board. A panel three-member Panel) Clemency of the Board held three-day hearing a to determine August his “actual innocence.” On if Beach’s new evidence established 20,2007, Clemency application “[n]o denied Beach’s because Panel innocence, newly non-guilt evidence of or or discovered proof presented.” ha[d] been justification 2008, petition postconviction filed another for relief

¶5 court, newly proved evidence alleging state district discovered summarily petition The district court denied Beach’s actual innocence. and remanded for the appeal, in a order. On we reversed one-page evidentiary hearing newly an on the discovered district court to hold (Beach I), MT in Beach’s Beach v. State alleged petition. evidence 398, 51, 411, 353 Mont. 220 P.3d 667. ¶ remand, three-day hearing, held a and took On District Court testimony suggested group teenage girls a had from witnesses that presented killed Nees. The District Court concluded that Beach had sufficient evidence ofhis “actual innocence” to warrant new trial. released Beach from the Montana State subsequently District Court pending appeal. Prison appeals. The State

STANDARD OF REVIEW disposition The standard of review of a district court’s of a petition post-conviction findings relief is whether the district court’s clearly of fact are erroneous and whether its conclusions of law are State, 267, 7, 317 457, 545; correct. v. 2003 MT Mont. 77 P.3d ¶ Griffin State, 319, 13, 149, v. MT Porter Mont. 60 P.3d 951. However, brought postconviction an actual innocence claim relief proceeding presents unique posture reviewing for the court. The duly petitioner has been convicted-the State has introduced evidence jury petitioner guilty beyond sufficient for a to find the a reasonable verdict, overturning reviewing doubt. Before court must petitioner supported determine whether the has his innocence claim exculpatory “with new reliable evidence-whether it be scientific trustworthy eyewitness accounts, physical or critical Delo, presented Schlup evidence-that was not at trial.” v. 513 U.S. 324, 115 851, 865 Collins, (1995); S. Ct. Herrera v. accord 506 U.S. (1993). 417-18, if 113 S. Ct. 869-70 To determine the evidence is “reliable,” reviewing analyze court must “whether the new trustworthy by considering it evidence is both on its own merits and... light in the record.” v. pre-existing Menefee, evidence Doe (2d 2004) J.) 147, 161 (Sotomayor, (citing Schlup, F.3d Cir. 513 U.S. at 327-28, 115 867);Herrera, 418, 870; at S. Ct. 506 U.S. 113 S. Ct. at Redcrow, 95, 37, 252, State v. 1999 MT 294 Mont. 980 P.2d 622. The ¶ court must then combine new reliable evidence the old trial evidence and jury determine whether a presented reasonable with this hybrid record petitioner guilty. Herrera, would find the 506 U.S. at 418, 113 870; Schlup, 329, 115 868; S. Ct. at 513 U.S. at S. Ct. at House Bell, 518, 538, 126 2064, 2078 Redcrow, v. 547 U.S. (2006); S. Ct. ¶ Because determination as to juror “whether no reasonable find a petitioner guilty beyond a question reasonable doubt is a mixed fact, of law and we review the district finding court’s ultimate of actual innocence Menefee, 163;House, de novo.” 391 F.3d at 547 U.S. at 539- 40, 126 S. Ct. at 2078.

DISCUSSION above, As noted 2008 Beach filed petition another postconviction relief, alleging that newly discovered evidence demonstrated his “actual I, innocence.” postconviction Beach 13. The ¶ applicable statutes to Beach’s required conviction him bring claim within years five of his 46-21-102, conviction. Section MCA (1995); I, Beach 23. While there ¶ was no statutory exception to this bar, time we have recognized an equitable tolling of the time limit when “strict enforcement would result in a miscarriage fundamental justice.” I, 23; Beach State v. Perry, 455, 462, ¶ Mont. 758 P.2d (1988) (overruled 298, 273 grounds on other Clark, in State v. 2005 MT 330, 32, 1099). 8, 125 330 Mont. P.3d ¶ The “fundamental miscarriage justice” exception applies when petitioner shows he is “actually innocent” of the crime for which he was convicted. State Pope, v. 330, 40-53,

MT 318 Mont. 80 P.3d 1232. I, In Beach we cited the five-prong test Clark, outlined in State v. 2005 MT 330 Mont. 125 P.3d 1099 as the usual framework to determine “newly whether discovered evidence”warranted a new trial:

(1) The evidence must have been discovered since the defendant’s trial;

(2) The failure to discover the evidence sooner must not be the result diligence of a lack of on the defendant’s part; (3) The evidence must be material trial; to the issues at (4) The evidence must be neither merely cumulative nor impeaching; and

(5) The evidence must indicate that a new trial has a reasonable probability of resulting a different outcome. 34). I, Clark, 38 (quoting However, ¶ recognizing that Clark

was not a postconviction relief case where the petitioner filing

168 test ofthe bar, the fifth element we modified statutory time beyond I, 48. To Beach miscarriage justice ¶ of standard.” “conform to demonstrate element, required to fifth Beach was satisfy the modified I, 42-43. Beach ¶¶ “actual innocence.” INNOCENCE I. SUBSTANTIVE INNOCENCE AND PROCEDURAL innocence” of “actual species two recognized have We ¶11 I, and Beach we discussed Pope procedural. claims-substantive Collins, 506 U.S. from Herrera v. framework innocence the substantive framework (1993), innocence procedural and the 390, 113 S. Ct. 853 (1995). 40- 298, Pope, Delo, ¶¶ U.S. 115 S. Ct. 851 v. 513 Schlup from 29, I, 44. 49; Beach “Freestanding” Actual Innocence-Herrera

A. Substantive Claim. alleges substantive, “freestanding,” innocence claim or AHerrera is petitioner demonstrates that newly discovered evidence in the true for he was convicted

“actually innocent” of the crime which truly did not commit the defendant phrase-that of this sense However, 417, duly a Herrera, 113 S. Ct. at 869. 506 U.S. at crime. and carries guilty eyes “in the ofthe law” remains convicted defendant 399, 113 Herrera, S. Ct. at 506 U.S. at guilt, not innocence. presumed the substantial interest guilt of combined with presumption 860. The “necessarily” makes the threshold for Herrera finality of convictions Herrera, “extraordinarily high.” 506 innocence freestanding claims of evidentiary petitioner’s Because the 113 S. Ct. at 869. U.S. at Herrera, relief the Court denied showing particularly weak satisfy this must be met stating what burden without Herrera, S. Ct. 506 U.S. at 113 “extraordinarily high” threshold. at 869. I, “extraordinarily high” this standard In Beach we stated that freestanding claim actual innocence. Beach’s applied

review so, had not done we set forth I, Although Herrera Beach ¶ by “Beach must show clear evidentiary legal standard as follows: found juror no reasonable would have convincing evidence that... prevail for him to on his substantive him of the offense order guilty I, that, if satisfied explained 44.1We Beach innocence claim.” Beach ¶ convincing clear and evidence sentence read: “Beach must show The entire guilty error, juror that, procedural have found him no reasonable would but for Beach, prevail claim.” 44¶ on his substantive innocence in order for him to offense added). correctly ignore the “but for a (emphasis decided to The District Court standard, he entirely. this exonerated from the conviction be (“A I, claim, successful, substantive innocence if results in release.”). claim, Under a Herrera the defendant is petitioner’s truly considered innocent and forever exonerated. Innocence-Schlup “gateway”

B. Procedural Actual claim. necessary The “actual innocence” for of a claim purposes Schlup necessary purposes is different from the “actual innocence” 313-14, Schlup, Herrera claim. 513 U.S. at 115 S. Ct. at A 860-61. procedural, alleges newly Schlup “gateway,” or innocence claim evidence discovered demonstrates “a constitutional violation has wrongful Schlup, resulted” in probably conviction. U.S. at Unlike “freestanding” claim, 115 S. Ct. at 867. Herrera a Schlup a premised underlying allegation claim is on an that constitutional error during resulting wrongful occurred the trial in process, a conviction. Schlup error, a claim an trial accompanies While assertion of a Herrera 315-16, Schlup, claim assumes that the trial was error free. 513 U.S. at 115 Ct. at 861. A claim requires S. Herrera “evidence innocence ... enough ‘constitutionally strong [the sanction] to make criminal even product intolerable’ his conviction was the of a fair trial.” if at 513 U.S. Schlup, (emphasis original). 115 S. Ct. at 861-62 in claim, no “gateway” There is in a Herrera success on as the claim ends the a petitioner forever matter. While Herrera is required to affirmatively “present crime,” that he commit a evidence did not petitioner prove Schlup crime,” “need not that he did not commit the “only in convincing reviewing but has to be successful court that jury likely light reasonable would in convict him of the new added). Pope, words, evidence.” 49 (emphasis In other a Schlup ¶ must petitioner only produce evidence that creates “sufficient doubt guilt justify [criminal about his to sanction] conclusion that his a miscarriage would justice be unless his conviction was the product 316, 115 of a trial.” Schlup, fair 513 U.S. at at 861-62 (emphasis S. Ct. If original). Schlup petitioner required showing, makes this he sentence, procedural phrase noting properly error” freestanding, this that “a or substantive, trial,” claim of actual is innocence founded on the of an error notion free given any procedural there is no thus consideration errors under a Herrera 315-16, Schlup, (noting Schlup claim. See 513 U.S. at 115 S. Ct. at that a 861 claim trial, accompanies an assertion of at claim error whereas a Herrera concedes that the (“The error-free); Pope, trial 48¶ [Herrera] was accord claim stands alone before the convincing accompanied by alleged court and must be more than a claim other infirmities.”). the court his present is entitled to through “gateway” passes bars that error, procedural despite claims of trial constitutional 555,126 Ct. House, S. 547 U.S. claims. normally such prohibit would procedurally (the remand with “may on proceed petitioner at 2087 actual Schlup’s he satisfied claims” because defaulted constitutional his on subsequently prevails petitioner If the “gateway”). innocence Stewart, Carriger v. claims, to a new trial. he is entitled constitutional banc) 1997) (en (9th on his (Carriger’s success Cir. F.3d trial”). him to a new claims “entitled underlying constitutional Supreme Court the U.S. I, agreement with expressed we In Beach a different application “warrant[ed] the claims “gateway” I, 45. “freestanding” claims. Beach ¶ than Herrera proof’ standard Pope, procedure multi-step “gateway” adopted earlier We pass in order to his innocence to demonstrate petitioner requiring claims before his constitutional prove and then through gateway claim, alleging gateway Schlup Pope pursued a new trial. obtaining right to a unanimous verdict jury instruction violated pursue 37. To Pope, him a fair trial. ¶ denied misconduct prosecutorial “necessary claims, introduce the Pope had to time-barred these evidence from the evidence,” in the form ofDNA which he did gateway present the semen underwear that showed vaginal swab and victim’s “it no probable concluded 54. We Pope, not his. doubt that beyond a reasonable juror have found reasonable presented consent if intercourse without guilt/’ of sexual Pope was immediately a new did not order DNA but we the new added). Rather, Pope’s proceeded we then (emphasis Pope, trial. concession, ultimately held and, the State’s upon claims constitutional without a permitted conviction jury instruction that the Only 68. rights. Pope, ¶ vote violated his constitutional unanimous this reaffirmed Pope, a new trial. We did we remand for then 34-35, that the State’s I, explained where we in Beach procedure Pope’s errors had occurred Pope that constitutional concession a new trial. original trial warranted claims Schlup gateway claims and sum, freestanding Herrera “actual innocence.” demonstrate his petitioner that a require

both (“Actual and a petition in a Herrera is different innocence Pope, ¶ must show freestanding petitioner A Herrera Schlup petition.”). find juror” would that “no reasonable convincing and evidence” “clear merely must show gateway petitioner Schlup a guilty, him whereas find him jury” would “likely’ that “noreasonable “probable” that it is or higher A guilty.2 freestanding Herrera claim has the threshold because, met, if petitioner Sehlup gateway the is forever exonerated. A met, because, merely has a if the petitioner claim lower threshold is application procedural and permitted present avoid the bars trial claims constitutional error.

II. THE DISTRICT COURT’S DECISION appreciate District Court failed to that both Herrera freestanding Sehlup gateway require showing claims claims Thus, “actual innocence.” the District Court’s expressed intention to “just” proceed on Beach’s “actual claim not innocence” did differentiate kind analyzing. above, which of claim it was As noted the term “actual uniquely innocence” does not either freestanding describe a Herrera claim or a Sehlup gateway claim-a petitioner must show his actual innocence for analytical either claim. The District Court’s error it permitted pick any rule from I statement Beach pertaining to freestanding “actual innocence’-whether it was from the Herrera or analysis gateway Sehlup the analysis-and apply it to Beach’s claim. frequently It did so thereby conflated the standards. Nevertheless, ultimately District Court slid to the claim,

determination only that Beach had succeeded gateway on his and had failed requirements freestanding to meet stricter aof claim: analysis

After a review of Court’s of the new might reasonably why be asked the Court not just does release Holen, Mr. testimony Beach. The of Mr. only that he saw not Kim (with in the pickup girls) Nees four night other but also male in right seat, leads passenger this Court to conclude that sufficiently the evidence is not and convincing clear to bust down gateway3 absolute innocence have Mr. Beach walk through Also, ait man. we have Mr. Beach’s confession to consider. free However, totality convincing of the evidence is clear enough to Mr. certainly rule that Beach has opened the actual gateway enough innocence sufficiently through to walk that, explained freestanding claim, has been petitioner It for a is successful only jurors potential petitioner if the court none of believes that twelve find the guilty; whereas, claim, gateway petitioner for a if the court successful believes any jurors potential guilty. Schlup, one of twelve would find the defendant not (O’Connor, J., concurring). U.S. at 115 S. Ct. at 870

3Again, “gateway” freestanding there is no Herrera actual innocence claim.

172 trial. exception toward a new justice

miscarriage of the actual through passed if Beach has precedent, Pope Given are not barred. claims [then] his constitutional gateway innocence original.) added; brackets (Emphasis through proceeded Beach had thus held that Court The District to entitle Beach This would gateway.” innocence “actual Schlup’s However, instead, the claims. constitutional his time-barred present constitutional present not that Beach need Court held District incorrectly that trial, stating to a new claims, go straight but could up: taken claims could then be constitutional Beach’s through the actual passed if Beach has Pope precedent, Given the are not barred. claims gateway then his constitutional innocence can trial where he words, to a new proceed In Beach can other but also the actual innocence evidence only not present innocence evidence. constitutional omitted). course, (Internal brackets, Of marks, and citations quotation to a new trial and gateway from the leapfrogging not Pope permit does Pope, evidence.” In “constitutional innocence presenting therein analyzed trial error were before claims of petitioner’s constitutional all, point After the entire Pope, 68-69. granted. relief could be be permit the time bar to through “gateway” passing presented. claims can Those constitutional be circumvented so that hearing, not within a new postconviction in a presented claims are trial. evidentiary apply unique The District Court also failed cases. As discussed in required in actual innocence

standard of review only credibility below, analyze must detail court evidence, compare but must also believability proffered ofthe new Comparing the the tested trial evidence. against new evidence 1) judgment as to the court makes an informed evidence ensures that evidence, all of the old and juror given would do what a reasonable 2) upon verdict unreliable new, not overturn a valid based does reviewing stated that a court Supreme Court Schlup, evidence. innocence ‘in concerning petitioner’s “must make its determination illegally evidence, alleged to have been including all the light of it) (but unreliability of and evidence regard any due admitted become wrongly excluded or to have tenably claimed to have been ” at 115 S. Ct. at Schlup, the trial.’ 513 U.S. only available after Collateral Henry Friendly, Is Innocence Irrelevant? (quoting J. 867 (1970)). U. Chi. L. Rev. Judgments, Criminal Attack on “illegally including that to “all” of the Schlup’s reference trial, trial necessarily encompasses at all of the evidence. admitted” House, (“Schlup at makes plain 547 U.S. 126 S. Ct. See evidence, new, the must all the old and habeas court consider ....”). exculpatory practice. We have this incriminating and followed Redcrow, innocence claim because new evidence (rejecting the ¶ guilt presented failed to “overcome”the evidence of Redcrow’s at her trial). However, District Court failed to do so. the nearly 30-page The Court half order spent District of its analyzing evidence, made summarizing only Beach’s new but a of passing general part presented mention of one evidence at Beach’s specifics trial-his confession-and did not of Beach’s consider repeated requests confession. The rebuffed the court State’s analyze evidence, light the old stating: new evidence of trial Schlup “that is not what The explained Court held.” court that its its expand evidentiary inquiry refusal to into all the evidence of at Beach’s trial on of presented reading Schlup was based its Redcrow: its “Schlup progeny exclusively and Montana deal with and constantly concept reiterate the of new evidence its role rejecting petition or a approving post-conviction (Emphasis for relief.” order.) only in District Court Not does this assertion contradict this Redcrow, practice, 37; Pope, 61, illogical. Court’s see it is also The ¶ of importance reviewing critical all by of evidence is illustrated an exaggerated introduced, trial, if the example: during State a videotape clearly depicting victim, killing hearsay testimony a defendant a years offered committing support later about others crime claim But, of actual Of innocence? course not. under District Court’s reasoning, the videotape trial would not be in the inquiry. considered The District by Court erred an failing appreciate that actual innocence claim it to all requires compare of the evidence.

III. THE EVIDENCE Unique evidentiary A. standard of for review actual innocence claims. Freestanding Schlup Herrera claims and claims gateway come to procedural

courts a unique posture. petitioner has been previously trial-i.e., already at convicted the State has introduced jury petitioner beyond evidence sufficient for a guilty find “Thus, eyes law, reasonable doubt. in the petitioner does not ‘innocent,’ contrary, come before the Court as one who is but on the as who process [a] one has been convicted due of of brutal law Herrera, 399-400, 860; murder[].” 506 U.S. at 113 S. Ct. at accord (O’Connor Herrera, 419, 113 Kennedy, JJ., 506 U.S. at S. Ct. at & because, the law eyes in the of is not innocent concurring) (“petitioner event paramount the trial is the system justice, in our (internal defendant”) innocence of the determining guilt or omitted). presumption To overcome marks and citations quotation trial, actual innocence an comes with conviction guilt evidence, weighed when that new reliable must show petitioner actually innocent of the evidence, demonstrates he is the trial against S. Ct. at 867. 513 U.S. at Schlup, convicted of. crime he was evidentiary standard unique two-step inquiry This necessitates review. an “actual innocence” support kind evidence can just any Not support credible, requires petitioner a claim

claim. “Tobe such evidence-whether error with new reliable allegations ofconstitutional accounts, evidence, trustworthy eyewitness scientific exculpatory it be Schlup, at trial.” presented evidence-that was not physical or critical added). In the context of (emphasis at 865 513 U.S. at 115 S. Ct. whether, determine the court must first testimonial new testimony, it finds the witness credible solely on the witness’s based Then, proffered the court must determine whether and believable. light of the evidence testimony is credible and believable new Schlup requires trial: “Because also that petitioner’s at the presented reliable, [reviewing] innocence be court any evidence of actual new pre evidence throws the analyze only must whether new may doubt, whether the new evidence itself existing evidence into but Menefee, light pre-existing evidence.” considered reliable be 327-28, 115 J.); 513 U.S. at (Sotomayor, Schlup, 391 F.3d at 172 accord 867; Pope, S. Ct. at Bessemer, 564, 575, 470 U.S. 105 S. Ct. City In Anderson v. (1985), testing that new Supreme explained Court inconsistencies with

testimony for internal inconsistencies and both findings a trial court cannot insulate its the factual record ensures that “credibility determinations”: simply by labeling them from review may judge that the trial insulate suggest This is not to by denominating credibility them findings from review determinations, go demeanor and inflection for factors other than a witness. Documents or into the decision whether believe story; story may contradict the witness’ or the objective evidence on its face may internally implausible be so inconsistent or itself it. that a reasonable factfinder would not credit appellate of an court propriety well illustrates the ¶25 Menefee the new finding of “actual innocence” when reversing a trial court’s evidence is light unreliable in of the pre-existing trial evidence. In Menefee, the Second Circuit reversed the finding trial court’s of actual petitioner’s innocence for the gateway Menefee, claim. 391 F.3d at 150. petitioner had been convicted of second-degree sodomy stemming from his alleged sexual 14-year-old boy. Menefee, intercourse with a later, 391 F.3d at 153. petitioned Years he alleging for habeas relief newly that discovered evidence actually established he was victim, innocent-the child then age, Menefee, had recanted. 391 F.3d at 158. Similar to the District Court’s assessment here of the testimony of then-child witness Stephanie Eagle Boy, the trial court there found testimony recanting from the victim was “credible in its entirety” and “forthright and responsive.” Menefee, 391 F.3d at 158. The trial recantation, court believed the victim’s and held that petitioner had demonstrated Menefee, his actual innocence. 391 F.3d Circuit, 158. The Second then-Judge Sotomayor writing, reversed explained that whether a only witness was believable was “one element” in the unique standard of claims; review for actual innocence the court must also subjective determine whether its impression that the witness was credible “can light be sustained in of the record as a whole”:

Even where a court finds that a appears telling witness to be truth, must, recognizes, as Anderson evaluate the testimony light of the substance of other considering the potential motives to be untruthful may witness possess, corroboration thereof, or lack internal consistency, and the assumptions inferences or crediting particular testimony would require. Anderson, See 470 U.S. at 105 S. Ct. 1504. particularly This is true in the context of an actual innocence determination, Schlup as requires the habeas court to determine whether the new evidence on which the actual innocence claim is based is reliable. See Schlup, 513 U.S. at 115 S. Ct. 851. In order to where, here, make this assessment as the new evidence entirely consists testimony challenges that the facts on which prosecution the conviction, relied in obtaining the the court must carefully consider the nature of testimony light the in of the existing record to determine whether it can be considered reliable. 327-38, See id. ; Anderson, 115 S. Ct. 851 470 U.S. at S. Ct. 1504. The court’s conclusion that it believed a witness’s testimony evidentiary at an hearing only is one element of the determination testimony the constitutes new reliable evidence. The court must then evaluate whether subjective its light ofthe record testimony can be sustained ofthe

impression aas whole. the victim’s The Second Circuit found 391 F.3d at 165.

Menefee, that two New York because the record showed recantation not credible original the had interviewed the victim before prosecutors state filed, prosecutors told the charges and the victim were Menefee, 391 F.3d at had had sexual intercourse with him. petitioner testified that the hearing, at the innocence the victim 170. Years later any he had denied fabricating his statements because prosecutors were petitioner during and the those between himself impropriety F.3d at 170. The Second Circuit found that a Menefee, interviews. theory that the juror likely “conspiracy” would not credit the victim’s testimony: prosecutors fabricating were testimony prosecutors’ [the victim’s] [the In order to credit over testimony] [the the factfinder would have to conclude that ... their account prosecutors] part conspiracy were of a to fabricate [the victim’s] statements and the notes that recorded prosecutors statement.... it would have to discredit both and find DA’s Office in in order to conspiracy that a existed testimony. victim’s] credit [the

Menefee, improbability juror 391 F.3d at 171. Because of the that a theory testimony conspiracy would credit the victim’s over two testimony the Second Circuit held that the victim’s was prosecutors, Menefee, petitioner unreliable. 391 F.3d at 171. Because the had not evidence, unnecessary presented any new reliable it was for the step unique Circuit to standard of proceed Second second (“Because Menefee, presented any 391 F.3d at 172 Doe has not review. unnecessary reliable it is to determine whether no new juror light newly of Doe’s proffered reasonable would convict evidence.”). Only requires new evidence that further reliable analysis of the claim. step unique requires The second standard of review

court to combine the new reliable evidence with the old trial evidence jury presented and determine whether reasonable with this words, hybrid guilty.4 find the In other petitioner record would reasonable, probabilistic court must “make a determination about what gateway freestanding for a claim. The standard claim This is the standard require petitioner to determine has demonstrated “clear court whether I, convincing juror” guilty, evidence” that “no reasonable would find him hybrid presented if with the record.

177 jurors instructed would do” if the new reliable evidence was properly 329, 115 alongside the trial evidence. 513 U.S. at Schlup, admitted old (“Because 868; House, at a S. Ct. 547 U.S. at 126 S. Ct. at jury it, claim the trial not have Schlup involves evidence did before the requires jurors the federal court to assess how reasonable inquiry record.”). overall, newly supplemented react to the Because the would juror as no a determination to “whether reasonable would find petitioner guilty beyond question a reasonable doubt is a mixed of law fact, finding we review the district ultimate court’s of actual de Menefee, innocence novo.” F.3d at 163. House, Supreme the U.S. Court reversed trial court’s

finding petitioner’s new evidence was insufficient to show House, innocence” gateway “actual under the standard. U.S. that, S. rejected 126 Ct. at 2086. The Court notion a absent showing crediting witnesses, of clear error in individual the Court was required to defer to the trial court’s ultimate conclusion as to whether jury, presented evidence, a with all of the find the petitioner guilty: State argues findings also that the District Court’s in this hands, tie our precluding ruling

case in House’s favor a absent showing of clear as error to the District Court’s specific determinations. This view overstates effect of the District ruling. given Court’s is Deference to a trial court’s assessment of presented it in Schlup evidence the first instance. Yet the inquiry, repeat, requires judgment we a holistic about all the likely jurors and its on applying reasonable effect rule, general inquiry reasonable-doubt standard. As a does not findings fact, turn on discrete regarding disputed points of not the district independent judgment court’s as to whether reasonable doubt that the exists standard addresses.

House, 539-40, added; 547 U.S. at 126 S. (emphasis Ct. at 2078 omitted). citations, marks, quotations internal and brackets The Court court, showing reversed the trial held evidentiary that House’s was sufficient to demonstrate actual purposes innocence claim, gateway freestanding but not for of a purposes claim: is not a aspects This case of conclusive exoneration. Some Muncey’s voice, memory deep State’s evidence-Lora House’s walk, enforcement, evening bizarre his lie to law his appearance body, near the pants-still support and the blood on his an guilt. inference of Yet the central proof connecting forensic House the crime-the and the blood semen-has been called into evidence put forward substantial and House has question, suspect. to a different pointing Schlup standard set forth gateway has satisfied

House defaulted procedurally on remand may proceed claims. constitutional 553-55, at 2086-87.

House, 126 S. Ct. 547 U.S. at review, evidentiary standards of analysis proper this Given trial, and then to at Beach’s 1984 presented turn to the evidence we new evidence. Beach’s Beach’s 1984 Trial. Presented at

B. Evidence After five-and-a- Glasgow April trial was held Beach’s ¶29 guilty deliberations, a unanimous jury returned half hours of three substantive is consolidated below into The trial evidence verdict. areas. 1. The Confession6 1983, Beach made numerous statements During January

¶30 killing Nees. in which he confessed to police Louisiana officers multiple his Poplar had moved from to live with During period, this time Beach Monroe, January Louisiana. On stepmother father and contributing turned Beach in for police called and stepmother Beach’s and taken to the minors. He was arrested delinquency Parish Sheriffs Office. Ouachita 5, 1983, stepmother jail his from January telephoned Beach On Scared, called stepmother her. his and father

and threatened to kill in a suspect Beach had the Sheriffs Office and told them been unsolved might be connected to several Montana homicide they enforcement were concerned They homicides. told law Louisiana committing a murder under “quite capable Beach was because trial in this section is taken from the six-volume All of the evidence referenced record. questions discrepancies and the between his confession Beach raises about however, only mentioning, confession It that Beach’s actual murder scene. bears worth way: description clothing ofNees’s she ofNees’s murder in one contradicts the scene “discrepancies” merely wearing are details that were murdered. The other

was when Further, discrepancies “new these do not constitute not included in Beach’s confession. attorney aggressively Schlup attacked these Beach’s trial evidence” under or Clark. hearing validity pre-trial suppression “discrepancies” in a and the of Beach’s confession by judge validity upheld first trial. The of the confession was and at the 1984 jury. then certain situations.” Via) 6,1983, January Jay On Sergeant (Sergeant Deputy Via Medaries)

Sheriff Richard (Deputy Medaries of the Sheriffs Office questioning, they talked to for an hour. Prior to their informed rights Beach of his Miranda and Beach signed statement that he understood rights waiving his and was them. Beach confirmed that he was, had stepmother indeed, threatened to kill his and that he suspect in a explained “fly[] Montana homicide. Beach that he could off the handle” and way.” that he dealt with frustration in a “physical January 7, 1983, On Sergeant picked Via Beach up jail from at p.m. 12:24 Sergeant conduct an interview. Via advised Beach of his rights Miranda in transit again questioning before him. The began interview at p.m., interrupted 12:52 but was p.m. 12:58 when police another officer entered again the room. Beach was advised ofhis rights.7 During the initial questioning, killingNees. Beach denied With permission, Sergeant Beach’s performed Via then a voice “stress test, evaluation test” on Beach. In the Beach’s answers to a series of questions were recorded and measured for fluctuations that indicated stress in responses. deception. Stress could indicate test, From the officers believed Beach being deceptive. Throughout the day, permitted Beach was to use the coffee, restroom and have cigarettes, snacks, and pop. Shortly soda p.m., Sergeant after 3:00 requested Via Commander Calhoun to perform a second “stress evaluation test” to confirm his conclusion that being Beach was deceptive about the Nees murder. Commander Calhoun performed another round ofquestioning p.m., until 6:30 when he Sergeant asked Via to reenter the room. When Sergeant reentered, Via Beach eyes” had “tears in his and he told Sergeant Via “he was afraid to admit [] what he had done in Montana[.]” At 6:51 p.m., Beach confessed to killing Nees to Commander Calhoun and Sergeant Via. At p.m., gave 7:08 Beach confession, recorded providing details of up how he had met with Nees day, why her, he had killed her, how he had killed and how he disposed body ofthe and the him tying evidence to the crime scene. He 7 policy, Pursuant to the Louisiana rights Sheriffs office Beach was advised ofhis every policy time someone entered the interview room. This ensured that each officer independently testify could warnings that Beach voluntarily received the Miranda and rights. Overall, waived his [Beach] “record indicates that received ten Miranda warnings January January State, 132, 152, between 4 and 11.”Beach v. 217 Mont. (1985). P.2d taped statement.8 giving after this 40-minute “relieved”

appeared activities and whereabouts included details ofhis Beach’s account Beach said p.m., until 4:30 p.m. murder. From 1:00 day of Nees’s along Poplar River with Shannon Sandy at Beach partying he was leave, group tried to Beach’s When the O’Brien and Calib Gourneau. sand, “very angry.” Beach in the and he became “got stuck” vehicle sand, up.” and he “blew rock it out of the damaged trying his car vehicle,” hitting the vehicle, “kicking the out of the started got Beach “tried to calm vehicle, stomping and around. Gourneau cussing and him and down,”but, only this made “madder explained, Beach [Beach] left argument” an with Gourneau and “got Beach then into madder.” somebody pick he would “send back Poplar. back to He said to walk but did not do so. up,” [Gourneau O’Brien] trial, account of what O’Brien corroborated Beach’s At Shannon Beach, First, Sandy the addition oftwo details. after happened at Scared, stuck, at the car. O’Brien got the car Beach threw beer bottles emerge from and locked the doors and did up rolled the windows Second, angry Beach told O’Brien and car until Beach left. aget that he “wanted to woman.” Gourneau home, refrigerator in the got Beach he looked for beer When however, mind, something changed make to eat. He his started to sometime asleep and fell in his room. Beach awoke upstairs went house, walking town. “after dark.” He left the and started toward station, place Poplar for got popular he to the Exxon service When meet, sitting pickup. in her Beach was teenagers to he found Nees sister, Pam, the time. asked if he could ride dating Nees’s January secretary A at the Sheriffs Office transcribed Beach’s 7 confession. transcription recording Sergeant compared and made clerical corrections Via to the subsequently transcription. technician at the Sheriffs Office erased An evidence containing tape Beach has never claimed that he did not Beach’s confession. However, changing actually give he has offered theories about how the confession. suppression hearing, police wrongfully induced his confession. At the 1984 Louisiana enough him confessed because Commander Calhoun told there was Beach said he murders, “fry see him in the electric chair” for the Louisiana evidence to petition confessing permitted In his 1995 for Beach would be to return to Montana. relief, helpless postconviction he felt after Beach asserted that he confessed because However, seeing family judge. being days or a held four after his arrest without why interview, theory” of he confessed was Beach stated that his “number one in a 2002 Calhoun, Via, Deputy drugged Sergeant Medaries had Commander and milkshake, suggestions: rendering susceptible “I know there was him to the officers’ remember, just my memory go something to to where I don’t in that milkshake. For something happened to me.” Nees, around with and the two drove around Poplar “fairly until it was late at night.” Eventually, they Poplar drove down to the by River the “train bridge,” where Beach said he turned the conversation to topics. “intimate” He asked Nees about “making boyfriend,” love to her and if she would sex have with him. She said no. This him” “upset little, so he try decided to harder. He smoked joint “another with her” in hope that “she get a little bit more up[.]” Finally, messed he “reached over to kiss her and she pushed away.” [Beach] This made mad,” Beach “pretty and he asked why girls Nees Poplar around did not like him. She said it was because he was an “asshole.” upset This “quite Beach grab bit.” He tried to Nees and she slapped over, him. He grabbed arm, reached her pulled and her over next to fought him. Nees back. Beach said fly this made him “off again.” handle He got so mad he really “didn’t [he] know what was doing.” He hit her with his fist. Then picked he a “twelve inch crescent wrench” off the floorboard and started hitting her with it. Nees retreated out the driver-side door of pickup. Beach dropped the wrench as he rushed out the passenger-side door to catch her “before she run off.”He “caught her as she coming out the door.” Beach again her, tried to kiss and Nees scratched only him. This made Beach madder; he threw her up against the truck and choked her. He reached into the back of the pickup grabbed and a tire iron. He hitting “started that, her with telling her going her, [he] was bitch, to kill calling her a cussing her.” He hit “anywhere her everywhere [he] could.” Nees was “covering her head with her arms and screaming.” got Nees away Beach, from and ran to the other side of pickup, but Beach “tackled her” next to the “passenger rear tire” and “hit her a couple more times” on the head with the tire iron. When he realized that Nees “quit had moving,” stopped and stood up. Nees, He looked at back, took a few steps and then body returned to her to check for a pulse. He found none. Beach explained that he then began dispose ofthe evidence. He

threw the crescent wrench and tire iron into the Poplar River. He then began to look for something help drag body over to the river. He plastic found a garbage bag and “tried put body in it.” He was able to fit Nees’s legs folded and torso bag, into the bag with the coming up to under her armpits. Beach held the corners bag ofthe dragged body by the shoulders to the edge of the bank of the river. He pushed body bag edge over the ofthe bank. Beach believed that the plastic bag body came off the when he pushed it over the bank. Beach returned to pickup, pickup keys took the and Nees’s river. bank, them in the and threw the river edge to

jacket, returned his of the truck with and outside the inside wiped then down Beach fingerprints. remove sleeve to shirt way, his Beach home. On foot and went left the scene on Beach

¶39 as off as much blood wiped He in blood. that he was covered realized in a pants and to his shirt body, lighter used a burn from his he could returned his shoes. Beach boxcar, disposed of and nearby railroad soap remaining blood and washed off his underwear home in to He then went bed. and water. advised confession, again Via Sergeant of this At the conclusion

¶40 everything Beach him and asked whether rights his Miranda Beach of “Yes, responded: truth.” Beach complete the “honest told them was anyone give to the statement forced asked if he had been sir.” When statement, he giving the or forced into he was tricked or whether “No, sir.” responded: jail to 8, 1983, Sergeant Via went to day, January The next told murders. Beach unsolved Louisiana three

talk to Beach about did not ask lawyer. Sergeant Via that he had retained Sergeant Via (Kidd), Beach’s Henry Paul Kidd any questions. further Beach request Sergeant Via attorney, subsequently contacted Louisiana to discuss the unsolved January 1983. He wanted meeting on officer, commanding and his Sergeant Via murders. When Louisiana (Lieutenant met with Kidd and Cummings), Cummings Joe Lieutenant rights, Beach the Miranda Beach, read Kidd and Sergeant Via questioned form. When about signed Kidd a waiver Beach and involvement, “on murders, any but mentioned Beach denied Louisiana he had the interview” that during the course of or three occasions two times made at different admissions were killed Nees. Beach’s Via, Sergeant Commander presence interview in the throughout the and Kidd. Calhoun, Cummings, Lieutenant approached Kidd January meeting, Shortly after the wanted to confess them that Beach now officers and told Louisiana relayed Kidd details Louisiana homicides. the three unsolved up followed provided. The officers supposedly Beach had murders that January any of it. On information, could not confirm but on Kidd veracity ofthe information. Kidd about the they confronted falsely had convinced Beach to that he acknowledged to officers Kidd insanity plea. utilize an strategy as a to these murders confess Beach’s personality for up make an alternative so far as to gone had then “Ray Law enforcement ego, named Woods.” murderous alter homicides. in the Louisiana suspect Beach as a dropped trial, During attorney, Beach’s 1984 Charles “Timer” Moses (Moses), vigorously reliability attacked Beach’s confession on Cross-examining Via, Via questioned fronts. Moses about various confessed, “psychologically Beach had been unsound” when he whether murders, obtaining about Beach’sfalse confession to the Louisiana why January about he had not recorded entire 7 interview. Moses questioned whether Via had fed details ofNees’s murder to Beach that confession, why had provided the substance of the Beach been January interviewed for over six hours on Via answered these Calhoun, questions any wrongdoing. Cross-examining and denied played Moses asked if he had the “bad while Via cop” played had “good cop.” asked Calhoun see He whether had threatened to “fry in did the electric chair” if he not confess. Calhoun denied both. stand, Deputy testimony With Medaries on the Moses elicited Henry other criminals-serial Ottis and killers Toole Lucas-had confessed to two three unsolved Louisiana murders to which confessed, Beach had insinuating engaged also the officers were obtaining false confessions.9 jury The went into deliberations with the clear understanding determining

that whether Beach’s confession was or truthful was a product of police judge specifically coercion was critical issue. The charged jury determining with whether Beach’s confession was voluntary closing arguments, lawyers and truthful. In their both Calhoun, points Via, Beach out that and Medaries obtained false confessions to Lucas, making the unsolved Louisiana murders from Toole and thus the same mention, however, insinuation did as Moses at trial. Beach does not that neither Toole charged any nor Lucas was ever with these their murders because confessions were investigation Further, upon by police. likely found to be false further Louisiana is police nothing 1980s, that tactics had to do with these false confessions. Lucas USA,” confessed to “hundreds of unsolved murders in the and has dubbed been “the prolific history.” Gudjonsson, Psychology most serial confessor in world Gisli H. The Interrogations 2003) Sons, (Wiley [hereinafter & and A Handbook 554 Inc. Confessions: Gudjonsson], custody months, inWhile Texas for 18 Lucas to confessed over 600 Gudjonsson, subsequent investigation proved lying, murders. at 555. When to be Lucas explained falsely murders, he he that confessed because of overzealous interrogation tactics, “get revenge police having but to on the him on a arrested made-up charge[,]” “impress judge,” being “biggest firearm because and eyes good.” Gudjonsson, monster alive” in the media “made him feel at 558. Sergeant that, explained clemency hearing during Via at Beach’s he June Montague, being traveled to held Texas where Lucas was Texas authorities interview him about three unsolved Louisiana murders. Via conducted two “killing girls interviews and Lucas admitted to three in the Monroe area.” case. crux of the was the confession Beach’s jury that

argued to the (Racicot), argued: Racicot Marc prosecutor, The questions, two essential down, essentially, to then, this all boils So simple questions, two those you how answer on depending and concern!] questions Those two with. dispensed else is everything you, Judge instructed as the confession and and his the defendant is “if his confession voluntarily made” and is “If the confession to determine. nothing left true,” simply and there about confession, raising questions on likewise focused Moses and the the confession get police by the Louisiana tactics used testimony at trial: police officers’ truthfulness Beach, Mr. talking his interviews about recall Mr. Via You the 11th and January, again and on 7th of see, the 6th and let’s on ... that there was under oath ... 20th, he testified also on secure a the Court and goto before opinion in his adequate belief participation Mr. Beach’s in connection with search warrant explain he that how does in Louisiana. Now murders the three lawyer. Well by this Louisiana says ploy that it was a away? He smart, they that but lawyers may not be now, place first in the like dumb, in and make statement to come in hell are not sure lawyer would have to be absolutely A absur[d]. be Mr. Racicot knows that, you know that and insane to do then, if Mr. Via is Now that I know that. Mr. Racicot knows something about he have had investigator should good such a us about it. able to talk to and would be in his notes and records theory that all of conspiracy Beach’s obviously rejected jury they testified that lying when officers were police the Louisiana occasions. murder on several to Nees’s voluntarily confessed nearby witnesses bridge train Crime Scene-the 2. The OfficerAlfred Lizotte Tribal Police trial, called former At the State ¶46 (Lizotte) patrol Lizotte was on of the crime. testify the scene to about Thunder) (Red the Red Thunder Sergeant Calvin Poplar in with by Poplar the murder, parked pickup and saw a of morning Nees’s had not moved pickup a.m. When the at about 4:15 Bridge Train the pickup, investigate. Approaching to a.m., the officers decided 7:00 on the inside, as outside the as well and hair on they saw blood side. passenger side of the passenger’s the side and the driver’s Next both up “kicked the dirt was marks” where “scuffle there were

pickup was a “blood pickup of the passenger the side Ten feet from places.” away the leading from “drag marks” observed Red Thunder spot.” marks, the edge scuffle and the officers followed these marks to the of there, floating the body, bank of river. From the officers Nees’s saw in two feet of water about ten feet from the lower river face-up bank. Sheriff, of They immediately County notified the the Federal Bureau Affairs, the Bureau Indian and the Fort Peck Tribal Investigation, of soon, Police, representatives agencies responded from all of these crime scene. to the (Wilson) County Errol “Red” the Roosevelt Deputy Wilson of Office testified the evidence in on the pickup.

Sheriffs about pickup explanation inside the with he was consistent Beach’s Nees inside with a wrench: pickup attacked the crescent Q: you sign Did the any any notice scuffle or blood or around vehicle?

A: Yes sir.

Q: you And what did notice? There window; A: was blood on the driver’s the door and there seat; was blood on the there was hair steering [] and blood on the wheel; splattered blood on the ceiling; beer or urine on the driver’s seat, side of the I I was; smelled but couldn’t tell what it there bloody smudgy fingerprints right was on the upper mo[l]ding. Q: Inside?

A: Yes sir. spots seat, There was blood on the back the there splatters was blood the window, heavy on rear blood splatters on window; the driver’s side of rear keys the there were no the vehicle; gear park; on; shift lever was in the radio was CB off; tray radio was the ash was open; ceiling on there were gouge three them; marks with hair hanging out there were gouge marks on steering wheel; the heater was left on and the passenger door was locked.

Deputy Wilson also drag leading away testified trail from had much vehicle less blood than at edge of the bank where Nees’s body pushed over. These details were consistent with Beach’s explanation body he had stuffed most of the into a bag dragging edge of the bank. Wilson and other officers canvassed homes that were near anyone

crime scene determine or anything. whether had seen heard Beach’s residence was enough one houses close warrant visit, stopped and Wilson spoke house. Wilson Roberta Clincher, trial, Beach’s At following testimony, mother. in his break Wilson re-took the stand and testified as follows: your terminated the time we previous

Q. [] I think [Racicot]: Clincher at to Roberta you had talked you if I asked questioning, 16, 1979? morning of June her home on A, Yes. [Wilson]: number-you her and a you questioning was

Q. And that [Racicot]: of other her and a number questioning were other officers anything in or heard they seen or not as to whether people Ann Nees? Kimberly the death of relation to Yes. [Wilson]: A. you a statement make

Q. Did Mrs. Clincher [Racicot]: morning on early in the home having come concerning her son day? particular Yes sir. [Wilson]: A. concerning you a statement relate to

Q. And did she [Racicot]: when he upon person his defendant had blood or not the whether came home? [Wilson]:

A. Yes. that statement? Q. And what was [Racicot]: her that he had told me that the defendant A. She told [Wilson]: at the car, in the sand gotten had it stuck had wrecked drinking get and couldn’t they had been and that swimming hole his fist and hit the car with he told her that he the car out and in blood. how he was covered explain that was to he covered blood? Q. you did tell that was [Racicot]: She [Wilson]: A. Yes. (Sparvier) as Sparvier called Joel Notably, it was Moses who as in the same house Bridge, to the Train lived close Sparvier

witness. did Eagle Boy, his who relative, year Stephanie old then-10 younger may heard Sparvier have thought trial. Moses testify at the However, Sparvier of the murder. night on the something suspicious barking dogs: night he heard that was only thing testified June, 1979. day the 16th Q. your attention to [Moses]: I direct any help? you Did hear screams barking dogs I heard was I didn’t. What [Sparvier]: A. No. everything else. barking drowns out dog [sic] these the area of coming from Q. any didn’t hear screams [Moses]:You bridge? the river No. [Sparvier]:

A. Investigation The Forensic were upon inflicted Nees ofthe wounds The areas ofconcentration consistent themselves were neck, The wounds head, and hands. her being with consistent weapons, inflicted two different with he Beach’s confession that had used a crescent wrench and tire iron. following investigation. Dr. Pfaff details of John testified 16, 1979, body June Nees’s from the Poplar On retrieved Pfaff, and for an Dr. transported autopsy. River Great Falls an performed and experienced physician pathologist,10 forensic the He autopsy subsequent investigation. forensic took injuries, of all she photographs opined of Nees’s that had been by killed blows head: to the

During the ofthe physical body, apparent examination it was that multiple injuries body, head, there were about mainly on her neck, areas involving shoulder and also the arms and hands. The most ones head involving serious were ones and were that her those caused death. autopsy injuries pictures major confirmed that all ofthe sustained area,

by Nees were to her neck and head and to her There hands. were major injuries legs no body. findings to her or the trunk of her These were consistent with Beach’s that he hit Nees in confession had tools, head area with the and were consistent his version also with that he was the sole attacker. possible initially No weapons provided were to Pfaff and he did initially any

not make as to the weapon, conclusions murder but injuries. concluded “blunt force” had caused the After further investigation had possible weapons, police identified asked Pfaff to if determine a crescent wrench metal inch-long and a bar could 20V2 have served as the murder Pfaff metal weapons. excluded the bar as murder weapon, opined but could some Nees’s wounds have by Later, been inflicted receiving confession, the wrench. after Beach’s police asked Pfaff to consider whether Nees’s were wounds consistent with from a iron. blows tire Pfaff concluded that the tire iron could injuries inflicted the have not caused wrench: “Neither [weapon] them, together inflicted all of they but could have all of inflicted them.” already Pfaff further concluded that put Nees was dead when she was river, recently into the and that she had not had sexual intercourse. All these findings were consistent Beach’s with confession. (Mahlum) Moses called County Roosevelt Sheriff Dean Mahlum physical tying

to establish the lack of evidence murder. bloody palm While a had print fingerprints and numerous been taken performed 3,000 autopsies. Dr. Pfaff had over taken samples had been scene, and numerous blood from the crime clothing, none of and from Nees’s the vehicle and outside from inside the lack of testified that Mahlum Beach. matched prints or blood suspicious, opining was not against Beach physical evidence From the likely cause. investigation was crime scene sloppy in the leadership a breakdown had been beginning, there reservation, Indian on an place murder took Because the investigation. involved, agency no were all federal, state, agencies tribal and stored collected evidence was Consequently, clearly charge. scientific manner, in the contamination resulting haphazard at the present not blood was that Beach’s peculiar It evidence. was at the scene the blood located all of scene, explained, Mahlum because Bridge Train area was that the explained He also belonged to Nees. riddled crime scene was why the explained which hangout, popular “junk all over the general cans,” “scraps paper,” with “beer were regarding the murder that rumors also testified place.” Mahlum many possible. leads as checked out as authorities “rampant” and these rumors because However, different from Beach’s confession was story checked out.11 Evidence C. Beach’s New began interviewing 2000s, Ministries early Centurion In the

¶55 Clemency the the murder. claimed to know about people who Also, in clemency petition. three-day hearing on Beach’s held a Panel new claiming to have people several 2007, Dateline NBC interviewed Atkinson, Maude girls”-Sissy of “pack to a pointed information that 2008, Dateline true killers. In Todd-as Nees’s Grayhawk, and JoAnn 1-3,2011, Court the District August murder. On episode ran an on the innocence. new evidence of regarding Beach’s claimed testimony heard testimony. was oral All of this evidence Grayhawk, one of of Maude Judy Grayhawk is the sister-in-law ¶56 that sometime girls.” She testified “pack as the group identified Maude. Maude sounded call from phone received a in 2004 she luring her in the head and kicking to Nees and admitted depressed going was and believed she Maude sounded scared down to the river. claim, prints actual innocence argues furthers his that the absence ofhis girls” by “pack later theory who premised upon Nees was killed that which is notes, However, all implicating as the State themselves. to others made statements finger palm prints and to girls Nees’s assailants submitted asserted to be three of girls’ prints those found FBI, could be matched to reported that none which at the murder scene. says prison. Judy

to that Maude called her because Maude wanted Judy’s away investigator.” help “running son’s from an County was for the Kemp Investigator Ron the Criminal Roosevelt Attorney’s early 2004, to 2006. In Office from 2003 Centurion office, County Attorney’s claiming Ministries contacted have eyewitness, Nees That eyewitness discovered an murder. Calvin Lester, murder, years on the Nees’s when ten night said that he was old, gone girls he had down to railroad tracks and witnessed kicking on the told ground. Kemp someone Lester that Maude Grayhawk by one of Kemp up visiting was the attackers. followed house, agreed Maude at with Kemp Poplar her and she to meet at the day. Police Department the next Maude as appeared promised next day, any in killing Kemp denied involvement Nees. She told that girls Bridge she four other had the Train partied down from p.m. p.m. night 9:30 until 10:00 was Nees murdered. Without more, Kemp found this unhelpful, because the time was at least three hours before the time of Kemp “pushed” Nees’s death. Maude about story, telling her her “several times” he had an eyewitness implicated Nonetheless, deny her in murder. any she continued to involvement, and eventually “upset.” became Calvin Lester later story recanted his that he witnessing admitted had lied about murder and Maude’s involvement. J Poplar anice Johnson lives in previously worked with Maude

Grayhawk at a medical clinic. Sometime between 2005 and investigator Centurion Ministries talk came to to Maude. Maude say directed investigator left, Johnson she not in. After the Maude told did investigator Johnson that she not want to talk to the and, because he was investigating “My the Nees murder car was down night. girls my there that Those had car.” Richard Holen was 19 at the time ofthe murder and had been out

drinking night. a.m., He left bar 2:15 2:30 around a.m. or driving his vehicle out of On Poplar the west. the road about one hundred pickup. feet ahead him was Nees’s Holen people saw five in the cab of the truck. truck turned off the road and headed Bridge. along toward the Train Holen continued the road. Still later night, that by Bridge area, Holen drove back the Train and stated that parked he saw truck They Nees’s there with another vehicle. were parked facing so opposite directions that the drivers could talk while remaining in their Holen provided vehicles. Centurion Ministries a statement in 2002 as to he what saw. Holen’s statement did not include a substantial amount that he information later testified to seeing only Nees’s statement, Holen mentioned

in In his 2002 When Bridge at later hour. asked at the Train parked truck statements, his 2011 his 2002 discrepancy explain this between that something else comes back” and that over time “a little Holen said details. Holen’s 2002 only recently the additional he had remembered in gender occupants as to the of the five was also silent statement interview, later, during Holen years A few his Dateline Nees’s truck. Likewise, Clemency were females. he testified was sure all five postconviction At the were females. occupants Panel that all of story, they that all looked like changed stating he his hearing only door.” Holen’s girls guy “sitting [passenger] except for testimony was his had not explanation for this new revelation that “much.” changed Sissy worked with Four Star lives in Wolf Point and Carl at A&S Industries

Atkinson, “pack girls,” another member (A&S) of camouflage A&S an industrial manufacturer in 1985. was that in he military. U.S. Four Star testified netting for the at the Nees murder. Sissy talking overheard to a co-worker A&S about away to 25 feet the time. standing approximately Four Star was says reading was newspaper Four Star the co-worker Star reported Beach had been convicted of murder.12 Four testified that it was something co-worker said to the effect a shame that the Sissy responded: “They got wrong to Beach. man. happened what kicking Sissy I there.” Then made motions like she was someone Later, and told him that ground. Sissy past on the walked Four Star away crime, a Four gotten “perfect capital she had with the crime.” the first time Star came forward with this information for some years later when Centurion Ministries visited mother’s house original did include looking for someone else. Four Star’s statement any Sissy making “kicking During mention of motions.” hearing, disputed Four Star could postconviction parties whether factory. given this conversation the noise level have overheard testimony regard has over time. Star changed Four Star’s in this Four Clemency quiet it so in the work area when told the Panel that was However, “pin drop.” her that one could hear a Sissy made comments playing “[l]oud Four Star that there was a radio testified it” loud “that muted enough people could hear but not so everyone out.”

12 Beach was convicted in 1984. testimony The State called Richard McDonald to Four Star’s rebut the noise level in A&S. Richard is a retired police as to McDonald of the Fort who in 1983 and again officer Peck Tribe worked at A&S in He testified that area where Four Star worked was particularly noisy large because of the fans that ventilation were constantly running to clear out the that came “terrible smell” off the being made. He that when to talk people nets said wanted to each they other had to shout. Stephanie Eagle Boy grew up years was ten at Poplar, and old She Sparvier

the time Nees’s death. lived with close Joel to the Bridge. hang-out rock,” Her place Train favorite was “the she could Bridge. sit and overlook the night Eagle Boy Train One two approach Bridge. beginning watched vehicles Train At the testimony hearing, her at the Eagle Boy positively identify could only truck, of the midway through testimony one vehicles as a but her she sure that “pickups.”Eagle Boy was both vehicles were said that the pickups pulled together parked facing two and the same direction. got girls Then out ofthe and screaming” vehicles there was “horrific girls yell, 10 to 20 minutes. She heard “Get her!” and “Kickthe bitch!” say, “Please, She also heard girl got another Then it quiet, don’t!” and car police lights showed its up already on. When it reached the it pickups, lights off, shut all Boy of its and Eagle heard “a little whispering or Then something.” pickups one of the drove over to some grass got tall people two out. She “digging” heard “like clinking noise, they dropped like something tools clinking together like you when drop them.” Then both pickups and the police car away Eagle drove from the Boy cousin, area. said Sparvier, her Joel was also outside watching listening Boy to this with her. Eagle surprised to learn Joel Sparvier that had testified Beach’s 1984 trial, only he had heard barking dogs that night, and no screaming. Eagle Boy identify could not night what in 1979 her memory was

of:

Q: you While sitting were out there of all you ... First let me ask you do day remember what it date was or what it was? I

A: No don’t.

Q: you But it know was summer?

A: Yeah. And,

Q: year your grandfather was the died?

A: Yes. Boy’s Eagle correspond failure to if her night know memories cross-examination: during the State’s was confirmed murder Nees’s only- earlier, ago hour a half about Q: And, it true isn’t hot it was of 1979 was because the summer knew it was way you is that correct?

A: Yes. exactly date; you don’t know But, you don’t know

Q: Okay. the summer of except for have occurred it could when correct? Well, I can’t remember.

A: you All confirming that. asking. Just Q: just fine. I am That’s 1979, correct? the summer of know is it was A: Yes. Missoula, formerly in Mohler live and Susan Billie Smith

¶64 Jackson, final member Todd; formerly JoAnn JoAnn worked with During a facility there. assisted-living girls,” of at an “pack her that Todd told day, alleges JoAnn one Smith cigarette break girl another group girls took teenager “she and when she was a She was not-she girl out of the truck. they dragged the the water and happened.” it this, present when do with but she was nothing had story for repeat killed. asked Todd girl The then Smith was generally corroborated Mohler. While Mohler Susan employee, another killing, was at the never said that she story, stated that Todd she and Mohler came Smith “she was not involved.” and that Todd insisted watching Dateline. forward after Sissy acquainted in Falls and was Hall lives Great Kevin a “fair they doing were a time he said both during

Atkinson in Sissy like said he did not when pain killers. Hall amount” cry karma get high and “sit about come around because she would husband had died Sissy told Hall that her former [him].” all the time to beating in Sissy’sinvolvement stemming karma” from because of “bad Sissy high was teenager. Hall testified that she was a girl when story beating, and that she told the brought up the every time she Sissy’s twenty times. Hall testified five and somewhere between Sissy first time telling. each story more detailed with became girls up had beaten merely group said that a brought up, she “they” Sissy had told him that But, by telling, the final girl. another river, they beat her with where had “lured” the victim down girl was tool,” her into the river while “tire and “rolled” and, watching Dateline after Hall came forward unconscious. Sissy statement of what Ministries with a written Centurion provided statement, Sissy had told the Hall said that In the 2010 had told him. story many had given any times but more details than those in the words, first telling. Sissy’s story changed: “Sissy other never occasion, brought beating] up [the more than on one but never provided more detail.” The District explain Court asked Hall to inconsistency testimony between his 2011 and his 2010 statement regarding provided by Sissy. the details Hall offered that he had been off days his “meds” for two in anticipation providing testimony. his He explained kept down, that his medications his ammonia levels high levels put “foggy, hazy of ammonia him in a state” and memory.” caused him to have “poor Michael John Mclntire Sissy lived next door to Atkinson in Great through

Falls from 2004 Sissy’s apartment 2005. Mclntire said that suspicious activity abuzz with “24/7.” After a man up showed threatening Sissy, to shoot Mclntire confronted her and told her that he appreciate did not her putting family danger. activities Sissy Mclntire said that him “straight looked in the face” and told him that he did messing with, not know who he was that she had killed girl up reservation, some on the and that she would kill him too. After Mclntire an article in Beach, saw the Great Falls Tribune about he Tribune, contacted the put who him in contact with Centurion Ministries. Former Sheriff Mahlum is now retired and lives in Wolf Point.

Mahlum testified the 1984 trial and at the postconviction hearing. Mahlum testified that Beach’s confession contained details only Nees’s killer would know. Nees’s wounds were primarily confined skull, region hands, “the the head and also to the backs of the hands[,]” and this information had divulged public. not been to the Nees’s wounds matched Beach’s version of the murder as stated in his Further, confession. Mahlum divulged testified that it had not been public that Nees had been attacked with at least two different weapons, and Beach hitting had confessed to Nees with a tire iron and a crescent opined wrench. Mahlum from his experience that injuries concentrated such as Nees’s indicated perpetrator “one as opposed large to a group people.”13 Analysis

D. of the Old and New Evidence. overturning conviction, Before Beach’s the District Court was to initially granted objection testimony only The court Beach’s to this “but for purposes setting a bit more foundation because we went from a few facts to enough laying why conclusion and not sort of foundation about that conclusion was Thereafter, necessary experience. reasonable.” Mahlum laid the from foundation U.S. at reliability Schlup, Beach’s new evidence.

determine so, the court was to scrutinize doing Ct. at 865. In 115 S. and inconsistencies with testimony internal inconsistencies Redcrow, 172; 62; Menefee, Pope, 391 F.3d at ¶ record.” “pre-existing reliable, the Beach’s new evidence Finally, if the court found the trial evidence and that reliable evidence with court was to combine guilty given find Beach jury if a reasonable would determine that each ofBeach’s new hybrid record. The District Court’s conclusion “credible” evidence of his actual innocence provided witnesses testimony their for internal by probe undermined the court’s failure to statements and to determine previous inconsistencies with their light of the record as a testimony [could] “the be sustained whether Indeed, F.3d at 165. characterized the Menefee, whole.” Menefee “deeply the trial court in that case as approach employed similar Menefee, flawed.” 391 F.3d at 165. troubling findings of the District Court’s was that The most Eagle Boy’stestimony alone had “surmounted” the clear and

Stephanie necessary actual innocence. convincing evidence standard to establish analysis finding improper This illustrates the District Court’s because nothing Eagle Boy proves anything said about Nees’s murder. While Eagle Boy’smemories to the gratuitously the District Court attributed murdered, she twice testified that she could not night Nees was specific night question. correlate the screams she heard to the She only during could state it occurred sometime summer of 1979. Boy’s inability memory night her Eagle to correlate relevant testimony, her Train significantly undermined the value of as the Further, Bridge frequently parties hangout. area was used for and as screams, Eagle Boy night testified that whatever she had heard the Sparvier thing. Joel was outside with her and heard the same However, Eagle Boy, Sparvier had testified at Beach’s unbeknownst Eagle Boy, Sparvier specific night 1984 trial. Unlike remembered the murdered, only thing Nees was and stated that the he heard on that barking dogs. It to conclude that a night was is unreasonable likely Boy’s testimony juror Eagle vague reasonable credit over memory ofthe This is Sparvier’s specific night question. particularly given timing conflicting true of the accounts. submission murder, Sparvier years Eagle Boygave "While testified five after Nees’s Boy heard years Eagle supposedly her account 32 later. watched and hear her girls girl, “whispers” attack another and could even from However, things she and heard inconsistent position. saw were hearing screaming” with the murder scene. After “horrific for 10 to 20 yelling, Eagle Boy minutes and further pickups saw one of the move grass, Then, near tall “digging” “clinking” followed sounds. she However, said the and a car pickups police two left the scene. contrary, leave; Nees’s truck did not it was found at the scene. Although stating she whispering, Eagle Boy could hear did not recount hearing body being dragged the sounds of a edge 250 feet to the of the splashing bank or into the water after being thrown into the river. may Eagle Boy’s While the District Court have found testimony to be compelling, when viewed in comparison to the known crime scene trial, evidence introduced at upon recollection, and the limitations her it is not a reliable account of Nees’s murder. Unlike normally time, memories that fade over the memories of

Beach’s miraculously new witnesses have sharpened in detail over the years. 2002, In Richard Holen did not gender know the of the five he occupants saw in Nees’s In vehicle. he told Dateline and the Clemency Panel that he they remembered were all females. In a startling new detail emerged-he now remembers that there were four females and one in pickup, male and the male was in sitting passenger seat next to the door. It is unreasonable to conclude that a juror reasonable substantially would credit Holen’s frequently changing testimony. The same is true testimony about Kevin Hall’s Sissy Atkinson get high

would on pain killers with him and beating girl. recount Sissy Hall stated that told him that she group girls and a beat girl. aup repeated She story this to him somewhere between five twenty times without providing However, 2011, “more detail.” Hall’s story changed and he testified that Sissy instead provided more details with each subsequent telling story. This culminated a final telling in Sissy they which said river, had “lured” the victim to the beat tool,” her with a “tire and rolled her into the river. questioned by When the District Court about this substantial change memory, Hall had explanation no other gone than he had off his “meds” in anticipation Further, of his testimony. “rolling” version of the “unconscious” victim into the river conflicts with the physical evidence. The victim “rolled,” was not dragged, but and the victim already dead when she was thrown into the river. testimony Hall’s reliably does not counter the trial and it is unreasonable to conclude that a juror reasonable likely testimony. credit the Carl Four Star came forward for the years first time over 15 after hearing Sissy original Atkinson’s comments. His version did not make Sissy mention of making “kicking motions.” He originally said he could Sissy’s he could overhear in A&S Industries so pin drop hear a that a away. hearing, At the he testified from 20 to 25 feet statement to hear it but not so loud enough people loud playing radio was everything out.” “it muted a story seeing girls kicking girl his of Lester recanted Calvin

¶73 Grayhawk Maude Bridge seeing at the Train and ground victim on the attackers, so, Investigator Kemp before he did among the but Maude, Poplar at the Police agreed Kemp to meet contacted who interview, pressed point Maude to the During Kemp Department. tears, eyewitness kicking an who saw her telling her there was Nonetheless, change story her Maude did not victim at the scene. not involved in the crime. she was recall a conversation with JoAnn Billie Smith and Susan Mohler killing, a Mohler recalls Todd cigarette

Todd on a break about but (Todd) killing. involved stating that she was not with highlighted, Mahlum and as mentioned Finally, as former Sheriff above, objective evidence theory Beach’s new is inconsistent with offered injuries and the crime scene. Beach witnesses who Nees’s and group girls heard statements that a attacked kicked Nees. Star, Judy Grayhawk, include Carl Four Susan These witnesses Mohler, Smith, story arising Michael John Mclntire. The Billie weapon; no theme a from these statements offers consistent about However, rather, by beating kicking. attack was primary by jury testimony supported heard Dr. Pfaffs forensic numerous showing major injuries that all were to her photographs Nees’s head, neck, significant injuries and hands. There were no to Nees’s legs pointed single torso. This to a attacker-consistent or evidence theory. Beach’s confession and inconsistent with the new Nees’s injuries weapons, two consistent with the crescent were caused identified-again wrench and tire iron that Beach consistent with his testimony. Signs confession and inconsistent with the new of scuffle ceiling steering marks on the and on the pickup-gouge inside ofNees’s attached, heavy on the side of spatters wheel with hair blood driver’s window, wheel, steering the rear hair and blood on the seat and beer consistent with Beach’s account of or urine on driver’s seat-w'ere sitting while she commencing upon the attack Nees with wrench seat, in the driver’s and have no known connection with the new tire, rear theory. pooled passenger Blood was near the side less leading away along drag blood was found trail from explanation upon truck-consistent with Beach’s of his final assault body body at that until lying put Nees and her lifeless location he in a plastic bag dragged it to the river bank. This evidence has no theory. known connection to the Deputy new Wilson testified at trial that Beach’s mother said Beach had early returned home in the morning hours “covered with blood.”Beach’s confession indicated that he was details, covered with blood after the assault. Even small such keys truck, as the missing from Nees’s are consistent with Beach’s confession keys river, that he threw the in the and have no known connection theory. to the new In view ofthe contradictions between the testimony new objective trial, and the evidence tested at we must conclude that the testimony new provide does not a reliable account of Nees’s death that displaces the trial upon evidence which Beach was convicted. The District Court found Beach’s new “testamentary evidence as

uniquely objective” as DNA evidence in other proved cases that actual innocence. upon Based our assessment of the we cannot agree. The Supreme Court has described the kind of evidence necessary to establish actual innocence and overturn a conviction as “exculpatory evidence, scientific trustworthy eyewitness accounts, or physical critical presented evidence-that was not at trial.” Schlup, 513 U.S. at 115 S. Ct. at 865. Beach’s new evidence-the statements by offered the witnesses in postconviction the hearing-did provide not this kind of reliable evidence. As trial, he did in the Beach conspiracy offers a theory

involving the four police Louisiana (Sergeant Via, officers Commander Calhoun, Deputy Medaries, and Lieutenant Cummings) who testified that Beach confessed multiple times to killing Nees. Several of these by statements Beach were made with his lawyer Louisiana present. All of the Louisiana officers any denied that trickery or threats were used against Beach. While Beach offers allegations to the contrary, there is no evidence that the officers used improper tactics. Sheriff Mahlum giving denied the Louisiana police officers details ofthe murder scene. Yet, provided Beach eerily confession consistent with the details of the crime scene and with wounds, Nees’s including details that were not divulged to the public. conspiracy Beach’s theory new; is nothing it was aggressively pursued by during Moses Beach’s 1984 trial. The jury rejected then, and we jury do not believe the was unreasonable in doing so.

¶78 Beach’s new evidence-in the form testimony of primarily hearsay, internally inconsistent, and inconsistent with evidence presented at Beach’s 1984trial-does not reliably displace the evidence trial, tested at Beach’s including his Having confession. concluded that evidence, we providing reliable satisfy step the first failed to Beach Menefee, analysis. See step of to the second proceed need not (Because any new reliable presented had not the defendant F.3d at 163 further). However, the matter evidence, unnecessary to consider it was reliable, we conclude deemed to be evidence was if Beach’s new even “a to demonstrate is not sufficient his new evidence light of the new likely convict him jury reasonable I, Instead, reviewing after 49; accord Beach Pope, ¶ evidence.” case, record of the we combined, hybrid evidentiary entirety of the crime. likely to convict Beach would still be jury conclude a fatal to both evidence is requisite reliable present Beach’sfailure to failed to claims. He has thus Schlup actual innocence his Herrera and I, 42-43. fifth element of the Clark test. satisfy the modified CONCLUSION IV. mistake, deliberately, of District Court made evidence, closely the old failing consider

listening to the new District Court found the Thus, compelling matter how evidence. no be, by refusing as a matter of law it committed error new evidence during presented with the evidence together consider that evidence testimony its impression trial to determine whether the 1984 After a review of the record as a whole. light could be sustained reliable provide that Beach did not all the we conclude the trial evidence and displaced his actual innocence that evidence of Our conclusion is consistent with thus his conviction. Panel, Clemency made the unanimous three-member determination case, that Beach’s inquiry an exhaustive into performed which face, their lack allegations initially troubling are on but substance summary provide fitting closely scrutinized. Their comments when matter: of this study by reading complete files began

All three us our us, initially taking Ministries. Allthree of submitted Centurion value, may that Montana have at face were alarmed contents years. these It was wrongly man for all imprisoned an innocent proceeded and that we to undertake posture perspective from that followed, However, then an upon in this matter. what our efforts before, study, during, and after the inquiry exhaustive they alleged did unfurl as were hearing, simply the facts not multiple Ministries claims. The characterized in the Centurion witnesses, evidence of “the real eye allegations physical crooked or being ignored by law enforcement-either killer” inept-did great not materialize. sympathy We have for those who only read the Centurion Ministries allegations and become alarmed, because that was our experience; allegations but those were demonstrated as true very even with the wide latitude afforded Centurion simply Ministries-the facts have not been representatives demonstrated tobe as alleged. for Mr. Beach have Mr. culpability Beach’s has vigorously been contested eloquently, but we have found that lacking contest to be substance. Applying proper standard

¶80 of review to the new evidence by Beach, offered we determine he has failed to sustain his burden of demonstrating either a freestanding gateway claim or a claim of “actual innocence.” The District Court’s order is reversed. Beach’s petition for postconviction relief dismissed. is denied and BAKER,

JUSTICES McKINNON and DISTRICT JUDGE SIMONTON, sitting for CHIEF JUSTICE McGRATH concur. McKINNON,

JUSTICE concurring. I Opinion believe the Court’s correctly resolves present Beach’s appeal under the test we articulated in prior appeal, Beach’s Beach v. (Beach State, 2009 MT 411, 220 353 Mont. I), P.3d 667 I and have signed Opinion. However, thus my view, our decision in Beach I confused the governing postconviction law claims, “innocence” and for this I reason would limit application Beach Fs present case. In cases, future I would instead apply legal analysis standards and set forth starting below. As a point discussion, for this I review relevant points from Beach’s trial.

I. Beach’s Trial “[I]n state criminal proceedings the trial is paramount event determining the guilt or innocence of the defendant.” Herrera v. Collins, (1993). 390, 416, 113 506 U.S. S. Ct. Beach, For “paramount place event” took five-day over a period in commencing April 9 and concluding April 13. One of the central issues at trial concerned validity

truthfulness of Beach’s confession because, to the crime. This was as prosecutor Marc Racicot conceded jury closing argument, there was no physical reliable evidence retrieved from the crime scene pointing specifically perpetrator to Beach as the of Kim Nees’s death. Moreover, conceded, as Racicot also the investigation had been mismanaged and certain contaminated, evidence had been thus unusable, rendering due to improper policeprocedures. instance, For footprints at the crime scene were inconclusive investigators because in the course of over the area agencies had walked

from five different type of shoe kept had evidence, and no record been collecting had barefoot any of them been wearing or whether each officer was river). (from containing that did not A towel blood wading into the evidence, custody in with other placed had been match Nees or Beach the towel was found. and where not known when yet was passenger the exterior bloody palm print on Investigators had found it. determine who had left they were unable to pickup, of the but side mishandled. Hair evidence also had been Moses, in his counsel, emphasized F. “Timer” Defense Charles to the tying Beach physical the lack of evidence closing argument investigative careless He on law enforcement’s crime. focused evidence, criticized the mishandling of and also procedures example, at trial. For certain evidence prosecution’s produce failure to photographs introduce that the had failed to prosecution he noted typing, call an to discuss blood bloody palm print, expert failed to (not fingerprints belonging to information about other provide failed Beach) scene, of the produce photographs found at the failed to samples hair taken pickup, explain inside the failed to whether blood scene, produce found at the failed to from Beach matched hair testimony that any failed to introduce photographs footprints, of the garbage bag, explain with a and failed to drag line was consistent short, bloody portrayed towel. In Moses significance holes, unexplained questions, case as full of riddled with State’s critical devoid of evidence. shortcomings physical with the undisputed Given the Indeed, Racicot heavily relied on Beach’s confession. prosecution jurors point that the confession was “the focal of this whole

told the to two argued He that their decision the case boiled down inquiry.” voluntarily made? And is it true?” In [the confession] “Was questions: jury credibility had assess the regard, this Racicot stated that the Via, Calhoun, Lieutenant (Sergeant the four officers Commander Medaries) had contact with Beach when Cumming, Deputy who at Beach’s trial custody he in Louisiana and who had testified acknowledged Racicot incriminating statements. about testimony-if they they if the officers’ found jurors that did not believe untruthfully about the circumstances that the officers had testified jurors should find Beach not surrounding Beach’s confession-then that Beach’s they the officers and found guilty. But if believed truthful, jurors should find voluntary and then confession was guilty. Racicot and questions Moses addressed these jury with the note, detail. Of particular argued Racicot that the confession was true because it included facts that had not been revealed the public that even law enforcement officers had not known the time. Moreover, the confession included intimate and minute details about occurred, how the murder and most ofthose details were corroborated by independent evidence. example, For the location ofblood inside and pickup outside the and the location and nature ofthe wounds on Nees’s body were consistent description with Beach’s ofrepeatedly hitting her with a 12-inch crescent wrench inside pickup and then a tire iron outside the pickup. There were gouge marks in the ceiling of the pickup steering wheel, and on the which presumably created B.each when, confession, as stated in his he repeatedly struck Nees with the crescent wrench pickup. inside the Nees’s father testified that when police property returned his from pickup, a 12-inch “chrome” crescent wrench missing collection, from his tool which was consistent with Beach’s statement that he had used a 12-inch “chrome” crescent wrench to beat Nees and had then tossed the crescent wrench (and iron) the tire into the Poplar River. Doctor testimony Pfaff s about postmortem injury on Nees’s back corroborated Beach’s description of dragging Nees over to the river after killing her. The presence of by blood the pickup by the river bank-together with the lack of along blood drag trail between those points-was two consistent explanation Beach’s placed he had body Nees’s in a garbage bag in drag order to her to the river. The condition in which pickup had on, been found-in park, off, radio CB and heater on-was consistent with Beach’s statement that he and Nees had been sitting in the pickup stationary in a position. Beach stated that he had removed purse Nees’s from the pickup and laid it outside the pickup, which is where investigators found it. Beach stated that wiped he had vehicle, his fingerprints offthe which was consistent with the fact that fingerprints none of his were found. Beach stated that he had thrown keys river, the pickup into the which was consistent with the fact that law keys. enforcement never found the Racicot argued that all of these consistencies corroborated and demonstrated the truthfulness of Beach’s confession. Moses, hand, on the other pointed to the absence of corroboration

between certain details. For example, Beach had stated that he threw Nees’s jacket down her body, yet jacket no was found there when investigators arrived several hours later. The garbage bag Beach had referred to in his confession was never found either. Moses also interrogation, the Louisiana that, to Beach’s prior the fact

discussed County Sheriffs Office with the Roosevelt in contact officers were murder. the circumstances Nees’s about received information trial that he had obtained Indeed, Via admitted Sergeant he authorities before from Montana background information talking he was that ... we would know what questioned “[s]o could ask Mr. Beach the [we] and “sothat during the interview about” however, Beach was suggested, Moses appropriate questions.” time not have the interview and could mentally at the unstable questioning. the officers’ voluntary responses given appropriate Beach’s that, during preceding or six hours five implied Moses statement, Beach with the facts the officers confronted recorded County Sheriffs Office and by the Roosevelt supplied details those giving incorporated a confession which intimidated Beach into facts and details. among Montana and jury rejected conspiracy the notion of a The a false confession from enforcement officials to secure

Louisiana law testimony credited the Louisiana jury implicitly Beach. The officers’ voluntary and truthful. that Beach’s confession was both and found guilty charge on the of deliberate jury returned verdict homicide, that Beach had finding beyond a reasonable doubt and a tire iron on bludgeoned to death with a crescent wrench Nees 16, June Appeal

II. Beach’s Direct and First Petition State Postconviction 1984, raising in appeal Beach filed a direct to this Court October ¶89 (1) jurisdiction try him for the district court lacked five issues: (2) court, homicide; granting the district after his first deliberate venue, denying change erred in his second motion to change motion to (3) venue; denying suppress erred in his motion to his the district court confession, by the confession was tainted constitutional violations since (4) giving the district court erred in not procedural irregularities; (5) state; and regarding instruction mental jury particular the maximum by imposing possible its discretion district court abused adduced at argue appeal Beach did not on evidence sentence. homicide. support trial insufficient to his conviction deliberate conviction, concluding that none of This Court affirmed Beach’s Beach, entitled him to relief. State v. appeal issues he had raised on (1985). 132, 705 P.2d 94 217 Mont. in postconviction relief petition Beach filed his first for state

¶90 statutory filing years past the deadline for 1995-more than six October petitions-raising such the same claims he had raised on direct appeal confession, concerning plus a claim that his trial counsel had been ineffective. He also asserted that his confession was false. This Court barred, however, determined that Beach’s they claims were because already against had been decided him appeal on direct or because he (but not) could have raised them did appeal timely on direct or in a postconviction petition. We further held that presented Beach had not any justify “new evidence” that would equitable exception an to the statute of limitations. Accordingly, we dismissed petition his first in (1996). February 1996. Day, 370, Beach v. 275 Mont. 913 P.2d 622 III. Beach’s Second State Postconviction Petition Beach is in now his second round of postconviction proceedings state court. He filed his second petition postconviction for state relief 18, January time, on 2008. This he pursued two separate and distinct relief, avenues of which are critical understanding to an legal presented issues in this case.

A. Statutory Exception 46-21-102(2), § under MCA In relief, his first avenue of sought Beach advantage to take of a change in the 1997, law. Prior to a petition for postconviction relief could be filed years within five of the date of the conviction. Section (1995). 46-21-102, MCA provision, Under this Beach had until May 1989 to file a timely postconviction petition. 1997, In the Legislature shortened filing period year to one from the date that conviction (1997). becomes final. 46-21-102(1), Section MCA addition, however, Legislature enacted a statutory new exception deadline, allowing a claim of factual innocence to brought be petition filed within year one of discovering the upon evidence which (1997). such claim is predicated. 46-21-102(2), Section MCA 46-21-102(2), invoked MCA, § as authority for bringing a claim of innocence. In Crosby State, v. 155, 2006 MT 460, 139 332 Mont. P.3d we

adopted a method analysis brought claims 46-21-102(2), under § MCA.We first “newly reviewed the discovered evidence” test set forth Clark, State v. 2005 MT 330 Mont. 125 P.3d 1099. Crosby, 18-19. That test was conceived to timely address a motion for a new trial filed 46-16-702, MCA, defendant under days § within 30 following guilty Clark, verdict. See 27 n. 3. A motion for a new trial under this statute may granted be “in the justice.” interest of Section 46-16-702(1), MCA. To prevail on such a grounded motion newly on evidence, discovered we held that the defendant must show: (1) The evidence must have been discovered since the defendant’s 204

trial; must not be the

(2) sooner discover the evidence the failure to part; on the defendant’s diligence lack of result of a trial; (3) at to the issues must be material the evidence merely (4) nor neither cumulative must be the evidence impeaching;

(5) a reasonable that a new trial has must indicate the evidence outcome. resulting in a different of probability Crosby apply this five- Clark, appropriate deemed 34. We filed under petition timely postconviction test factor 15, 20. 46-21-102(2), Crosby, MCA. ¶¶ § relief his first avenue of on Crosby, Beach based light of 46-21-102(2), MCA, a claim of Also, requires Clark test. because § year filed within a newly discovered evidence to be based on innocence analysis under Clark to Beach limited his discovering the 19, January 2007. He on and after evidence he had discovered other than Beach persons established argued that this evidence sentence be He that his conviction and requested Nees’s death. caused any allege trial. Beach did not granted and that he be a new vacated relief; he conjunction this avenue of claims in constitutional evidentiary showing satisfied Clark argued that his simply a new trial. warranted Exception under Miscarriage of Justice

B. Fundamental Schlup contrast, relief, did involve avenue of Beach’s second analysis here was based on claims. His

constitutional articulated miscarriage justice” exception “fundamental 298, 115 (1995), Delo, S. Ct. 851 Schlup Court in v. 513 U.S. Supreme Redcrow, 95, 294 v. 1999 MT Mont. adopted by this Court State 383, 330, MT Mont. 80 Pope, and State v. 980 P.2d judicially recognized doctrine exception P.3d 1232. This is person a convicted seeks review to situations where applies trial, the claims are original out ofhis but arising constitutional claims reasons, the statute of limitations or such as procedural barred 313-22, 513 U.S. at petitions. Schlup, prohibiting rule successive 333, 339, 112 860-64; Whitley, U.S. S. Ct. Sawyer v. S. Ct. 51-55; Redcrow, 31-34; Pope, see also (1992); ¶¶ 2518-19 barred, if the 46-21-102(1), -105(1)(b), If the claims are MCA. §§ result in a refusing to entertain them could persuaded court may excuse the justice, then the court miscarriage fundamental merits. the claims on the bar and review procedural

205 tied of Supreme “miscarriage Court and this Court have justice” present postconviction petitioner’s the context to the 321, Redcrow, 864; at Ct. at Schlup, innocence. 513 U.S. 115 S. 33-34; Pope, “[t]o 55. This done ensure the fundamental miscarriage justice of would exception only remain ‘rare’ would be case,’ ‘extraordinary ensuring in the same time applied while at the truly extend exception the relief to those who were deserving.” 321, result, Schlup, 513 U.S. at 115 S. at 864. As a Ct. concededly “even the existence ofa constitutional meritorious violation justice is not in itself a of miscarriage sufficient to establish that would [postconviction] allow a court to reach the merits of a barred claim.” 316, 513 Schlup, U.S. at 115 S. Ct. at 861. In addition to alleging violation, petitioner present constitutional also must “newevidence 316, 115 Schlup, Restated, of innocence.” at at 513 U.S. S. Ct. 861. he “supplement! showing ] must his constitutional claim with a colorable Wilson, 436, 454, of factual innocence.” v. Kuhlmann 477 U.S. 106 (1986) 2616, (plurality). showing S. Ct. 2627 A of sufficient factual innocence, coupled alleged with an error in the original constitutional trial, of application miscarriage justice warrants In exception. of essence, the exception safety functions as “a valve for the extraordinary case,” 333, Schlup, 513 U.S. 115 S. Ct. at 870 (internal (O’Connor, J., concurring) quotation omitted), marks where is persuaded the court that “a probably constitutional violation has innocent,” in the resulted conviction one who is actually Schlup, of 513 (internal omitted). 321, U.S. at 115 S. Ct. quotation at 864 marks case, such a the societal in finality conserving judicial interests yield imperative correcting resources must fundamentally of unjust 320-21, 324, 115 864, incarceration. 513 Schlup, U.S. at S. Ct. at 865. Conversely, it important petitioner’s is to be clear claim provide innocence this situation “does not itself basis for Instead,

relief. his relief depends critically claim for on the validity [underlying constitutional] claims.” 513 U.S. at Schlup, showing S. Ct. at 861. An adequate merely of innocence entitles the petitioner to receive underlying review those claims. In this respect, demonstrating the “gateway”through innocence is which the petitioner in order pass must to have his otherwise constitutional barred claims 315, 115 Schlup, considered on the merits. 513 U.S. at S. Ct. at If “presents the petitioner strong evidence of innocence that a so court have cannot confidence in the outcome of the trial unless the court nonbarmless also satisfied that the trial was free of constitutional gateway through pass allowed to error, should be petitioner 513 U.S. at Schlup, claims.” underlying merits of his argue at 861. 115 S. Ct. in his errors three constitutional alleged Schlup, on Based (2) (1) evidence; failed to disclose the State original trial: evidence, thus referred to nonexistent facts and misstated prosecutor (3) ineffective counsel rendered trial; defense a fair denying Beach strong of innocence was new evidence argued that his He assistance. him these claims and have barred through gateway get enough a claim of assessing regard, In this a court the merits. reviewed on exception must miscarriage justice under the innocence actual 327-28, U.S. at Schlup, and new. the evidence-old consider “all” 518, 538, Ct. Bell, U.S. 126 S. 867; v. Ct. at House 115 S. (2006). he analysis, limit his as reason, Beach did not For this 2077 the relief, discovered within of to the evidence in his first avenue had Rather, evidence he had he also included months. preceding twelve that, light in January 19, 2007. Beach maintained to prior discovered guilty found him evidence, juror would have this no reasonable of all murder. of Nees’s did not raise to note here that Beach important It is

¶99 Herrera, under 506 U.S. claim ofinnocence freestanding constitutional is Schlup-which under what 390,113 A claim of innocence S. Ct. 853. 513 Schlup, rather than substantive.” procedural, raised-“is Beach innocence under 314, 115 adequate showing at An of at S. Ct. 860. U.S. instead, relief’; the a basis for provide “does not itself Schlup underlying critically validity of his depends on petitioner’s relief 315, at 115 S. Ct. at 861. For Schlup, claims. 513 U.S. constitutional Beach, withholding prosecutorial the State’s counsel are the trial, the ineffectiveness of defense misconduct at procedural claims; showing simply innocence is his substantive otherwise barred claims. obtaining review of those prerequisite for of innocence contrast, “freestanding” or claim In a substantive ¶100 innocence claim does by itself. A substantive a basis for relief provides trial; contrary, presumes violations at to allege not constitutional fair and error free.” “entirely were underlying proceedings that the 314, theory behind a 115 S. Ct. at 860. The Schlup, 513 U.S. at fair and that, proceedings the trial were although claim is substantive petitioner’s free, shows that newly discovered evidence error incorrect, or continued factually and his execution conviction House, 547 U.S. thus violate the Constitution. imprisonment would 313-17, 115 S. Ct. at 554, 2086; Schlup, 513 U.S. at 126 Ct. at S. 862, 860-62; Herrera, Here, 869. 506 U.S. at S. Ct. at as noted, Beach did claim that trial was fair and error free. To the not his contrary, he in his brief that “the new evidence discovered in asserted case, errors which occurred in the correcting this combined trial, original acquittal” Schlup. would result Mr. Beach’s under Response C. The the District Order State’s Court’s petition. State moved to dismiss Beach’s As to his first relief, rely avenue of the State that Beach contended could on 46-21-102(2),MCA, present newly his discovered evidence because § Legislature limited applicability provision of this April 24, final convictions became after 1996. See Laws of Montana, 1997, 9(1), ch. Beach’s §§ Since conviction became 1985,1 argued subject final the State that he remained to the pre- five-year period, making January limitations his 2008 petition Mahoney, 21, 11, time barred. v. See Morrison 2002 MT 308 Mont. 196, 41 P.3d 320. As to Beach’s avenue of under Schlup, second relief argued the State new evidence “is not reliable nor is it compelling guilt.” either Beach’s innocence or someone else’s The District Court Beach’s petition dismissed March 2008. order, one-page its petition court noted that procedurally barred, and time proffered that Beach’s evidence “does not finding warrant a of actual support innocence in miscarriage fundamental justice exemption [sic] to the time requirements.”

IV. I Beach Court, appealed this which its issued decision in agreed November 2009. We with the State that Beach could not proceed 46-21-102(2), under MCA, because his conviction § became final before the 1, statute’s effective date. Beach 21-22. This ¶¶ disposed conclusion Beach’s of first avenue of relief. subject law, Since Beach was pre-1997 provided to which a

five-year statute of limitations statutory exception newly with no evidence, January discovered and since petition Beach’s 2008 was thus untimely, we held that he could escape time bar and obtain review “only of his claims if he can satisfy miscarriage the fundamental of justice exception.” I, Beach was the This second avenue of relief ¶ had argued support petition. Beach in Although of his the District 1 definition, statutory Under the Beach’s conviction became once final this Court appeal its petitioning issued decision in his direct time for United States (1997). Supreme expired. 46-21-102(1), Court for review Section MCA justice miscarriage of satisfy Beach did not

Court concluded legal to discuss ... court “failed that the we observed exception, I, thus deemed 25. We Beach applied.” ¶ that it had standard instructions to Court with to the District necessary remand the case to evidence under Beach’s evidentiary hearing and to evaluate conduct an view, my I, in problem, 51. The Beach legal ¶ standard.” “the correct value, is that our precedential Fs about Beach my thus concern legal standard. the correct did not set forth opinion innocence” “gateway adopted previously This Court determining whether standard for Schlup as the framework from 33-34, 37; Redcrow, Pope, miscarriage justice ¶¶ exists. fundamental the merits of argue through gateway 55-59, pass To 67-69. ¶¶ that, light claims, Beach had to show underlying constitutional than not that no reasonable evidence, likely it is more new reliable a reasonable doubt. guilty beyond him to find would have voted juror 868. The 324, 327, 329, 115 S. Ct. at 513 U.S. at Schlup, new turn, all the evidence—Beach’s Court, in had to consider District make his 1984 trial-and adduced at as the evidence as well reasonable, properly about what determination probabilistic House, 547 U.S. the overall record. jurors dobased on instructed 537-38, Ct. at 2077. 126 S. this well- apply Court the District did not direct We Rather, a new test we fashioned however. approach, considered Clark, Sawyer and directed Schlup, elements from composed I, 37-48,51. Under law- it instead. Beach apply District Court to this Court are Court and the District principles, of-the-case and, noted petition;2 Beach’s as the Beach I test to apply constrained present appeal has resolved Beach’s outset, I the Court at the believe Nevertheless, Fs new test lacks correctly. test under that have confused devising I that in it we and fear support, precedential clarification, therefore, explain I three shall purposes the law. For or analysis I is incorrect I the Beach areas believe specific where legal the correct my view are forth what and set problematic, principle Court, deciding presented, or rule of law states a case “When this decision, pronouncement the law of the case and must necessary becomes such upon progress, trial court and throughout subsequent both in the its adhered to be Link, 217, 30, Inc., MT 328 Mont. ¶ subsequent appeal.” v. Mont. Rail Winslow generally practice to refuse to 260, 121 expresses the of courts doctrine P.3d 506. “This 47, 18, 369 Wagner, Mont. 2013 MT reopen decided.” State v. what has been omitted). (internal quotation marks P.3d 1142

209 future principles apply that should cases.

A. Reliance on Clark First, the Beach I is based on Clark. See Beach primarily test ¶107 However, I, 37-38, question 47-48. Clark did not involve the miscarriage should justice exception whether the fundamental be applied Clark test conceived procedural to a bar. The five-factor timely 46-16-702, to address a motion for a new trial under MCA.See § Clark, 27 The a defendant who files a contemplates n. 3. Clark test ¶ evidence, trial, on newly motion for a new based discovered within Clark, days following 34; 46-16-702(2), a guilty verdict. See ¶ § MCA; 3, Clark, Respt. see Br. at also State v. 2004) (No. (Mont. 4, http://searchcourts.mt.gov/index.html Aug. 04-282) (reciting that for a days Clark filed his motion new trial 30 verdict). jury’s after defendant, therefore, A quite differently Clark is situated than Schlup

a A petitioner. only recently Clark defendant has been convicted, and new evidence has been since trial. discovered his new evidence is itself the for basis relief. If the evidence indicates that newa trial would have “a probability resulting reasonable in a (and test, different outcome” if the other factors of Clark such as met), diligence, are then the Clark is entitled new defendant to a trial. Clark, 34. ¶ hand, A Schlup petitioner, on the years-perhaps other is

decades-beyond the filing date of his conviction. His time for a motion 46-16-702, a MCA, for new trial under long passed, has as has § his pursuing time for a appeal. direct He is barred challenging even from through his conviction postconviction proceedings-unless he shows a miscarriage fundamental of justice. Unlike a Clark defendant’s new relief, which itself the Schlup petitioner’s basis a new relief’; rather, evidence “does not itself provide basis for his claim premised for relief is on constitutional errors in original trial. Schlup, at 513 U.S. 115 Ct. at Schlup petitioner S. 861. A offers i.e., new escape bar, evidence in order to the procedural pass “to through the gateway argue his underlying merits of claims.” Schlup, U.S. 115 S. Ct. at 861. He must “that show it is likely more than that no reasonable juror would have convicted him in light Schlup, new evidence.” 513 U.S. at Only S. Ct. at if petitioner Schlup showing makes sufficient prevails ofinnocence and on the merits underlying ofhis constitutional claim(s) is he then entitled to relief. Seen in this light, plainly the Clark test is inapposite make wrong to Clark and I we were

Schlup petitioner, believe (see test in I. It is true Beach miscarriage justice basis of 40) to a the Clark factors I, appropriate apply deemed it that we Crosby, newly discovered evidence petition alleging postconviction 260, 8-13, 307 233, 37 Mont. P.3d Abe, 20, ¶¶ in State v. 2001 MT and ¶ cases, miscarriage not with the were concerned 77. But in these two we Crosby petitions could file their justice exception, since Abe 46-21-102(2), Abe, Thus, Crosby Crosby, 15; 6-8. MCA. ¶ ¶¶ under § someone, test to like authority apply not to Clark and Abe were (1) 46-21-102(2), MCA, rely Beach, is not entitled to on who § (2) a not as basis for newly his discovered evidence presented has innocence relief, through gateway the actual passing but as basis trial-based claims. arguing the merits of his constitutional Procedural Innocence Claims B. Substantive versus our ofsubstantive versus My point 111 second relates to discussion ¶ miscarriage justice exception procedural claims. We stated that actual, innocence, legal, or rather than or “concerns substantive I, that ‘actual procedural innocence.” Beach 31. We also stated “the ¶ inquiry may interplay involve of substantive and innocence’ I, original). (emphasis innocence Beach 43 procedural ¶ claims.” connection, that once actual petitioner we indicated shows this through procedural gateway, may he pass sufficient innocence (1) original errors in his pursue alleged then relief for constitutional (2) I, 32-36, Beach trial or demonstrate his substantive innocence.3 ¶¶ procedural Regrettably, conception of 43-45. this substantive generate prone missed the mark and is confusion. claims justice is miscarriage exception It true that the concerned is innocence,” “legal as distinct innocence.” This with “actual from 339-40, 112 Sawyer, 505 S. Ct. at distinction was mentioned in U.S. 3 (Beach 44-45) I, explicit in Beach’s ¶¶ This is our discussion of claims but more (Beach 33-36). I, successfully Pope Pope passed ¶¶ discussion of After subtle in our claims, gateway, through thus State conceded constitutional and we 67-68, I, Pope, a new trial. 70. In we reasoned that the State’s ¶¶ remanded for Beach newly Pope’s whether “obviated the need to evaluate discovered evidence concession I, (Notably, Pope innocence.” 35. had “not ¶ demonstrated his substantive actual Beach truly proves claim that the DNA evidence that he is innocent.” made a substantive 55.) Pope they Pope, suggested We then that Beach and are similar in that both relied ¶ that, pass through gateway, they but are different in once on evidence to new gateway, alleged through Pope relief for trial-based constitutional obtained I, Beach relief based on innocence. Beach violations whereas seeks his substantive 36,

211 2518-19, 527, Murray, and can be traced back to Smith v. 477 U.S. “ (1986). 537-38, 2661, concisely, 106 S. Ct. 2668 Stated ‘actual innocence, legal means factual not insufficiency.” innocence’ mere 614, Bousley States, 623-24, 1604, v. United U.S. 118 S. Ct. 523 1611 (1998). “A prototypical example of ‘actual innocence’ in a colloquial wrong sense the case where the has person is State convicted the ofthe 340, 112 innocence,” Sawyer, “Legal 505 S. crime.” U.S. at Ct. at 2519. contrast, error in legal requires refers to a the trial itself (9th 1080, Johnson, 2002); reversal. Gandarela v. 286 F.3d Cir. (5th 1992). Hargett, Johnson v. F.2d 859-60 Cir. miscarriage justice exception applies only petitioner to a who actual, innocence, legal demonstrates factual mere innocence. Indeed, purpose: permit is the exception’s review of an otherwise barred claim where the court is convinced that probably constitutional violation in the has resulted conviction of one actually Schlup, who is innocent. U.S. at S. Ct. at 864. say innocence, But to exception that the concerns “substantive innocence,” . . . procedural I, rather than as confusing, is the notion of an “interplay” procedural between substantive and claims, 36, I, innocence, innocence Beach 43-45. A claim of for ¶¶ purposes justice procedural, of the of “is miscarriage exception, rather 314, than substantive.” 513 U.S. at S. Ct. at Schlup, 115 860. It is the (if mechanism which petitioner showing his of innocence sufficient) may of an allegation obtain review otherwise barred of original constitutional error in A petitioner trial. who shows actual has, effect, innocence under procedural/gateway standard miscarriage justice exception established that the of should to apply him and that his claim trial-based should be reviewed on its merits. innocence, A of hand, substantive claim other ¶114 on the is an independent apart avenue of miscarriage justice relief from the of Herrera, 404-05, exception. 862-63; at 506 U.S. 113 S. at Carriger Ct. (9th 1997) banc). Stewart, (en v. 132 F.3d Cir. The confusion claims-procedural arises because both a substantive-require (with of showing “actual innocence” based on new evidence claim requiring substantive “more of convincing proof innocence” than claim). House, 2087; the procedural 5A1 U.S. at 126 S. Ct. at 132 F.3d But the A Carriger, at 477. essential distinction is this: showing sufficient a of actual innocence under a substantive claim is (but lesser) by itself, relief a showing basis for whereas sufficient claim actual innocence under a basis for a procedural escaping is a procedural underlying Schlup, bar on an constitutional claim. 513 U.S. results claim substantive A successful at 860-61. 313-15, 115 S. Ct.

at judicial claim leads exoneration, procedural a successful whereas meritorious, which, then if claim trial-based constitutional of a review 13, 14, 16. Opinion, trial. See ¶¶ of a new grant in the results of Proof C. Standard proof. For substantive the standard concerns My point final convincing by clear “Beach must show

claims, we stated error, juror would no reasonable that, procedural but for a evidence I, procedural 44. For of the offense.” guilty him have found satisfy a modified version must claims, that Beach we stated are incorrect. standards I, both 45-48.1 believe test. Beach Clark Claims for Substantive 1. Standard in Beach we articulated convincing” standard “clear and The Sawyer. In that traced to claims can be innocence I for substantive justice miscarriage examined Court Supreme opinion, “actually he was claimed that a who applied petitioner as exception seeking petition Sawyer had filed penalty.” innocent of the death sentence, but the claims relating to his claims of constitutional review showing he had Hence, the issue what barred. procedurally were exception. The miscarriage justice satisfy the make in order to convincing by clear that he “must show Court held Supreme error, juror would no reasonable that, a constitutional but for evidence Sawyer, 505 penalty.” the death eligible for petitioner found the have at 2517. 112 S. Ct. U.S. at a procedural standard for adopted this Supreme Court sentence, death petitioner’s claim related to

innocence conviction. See petitioner’s related to a innocence claim substantive 2523-25; Schlup, 513 U.S. at 347-50, 112 Ct. at S. Sawyer, 505 U.S. has latter, Supreme Court As to the 324-26, 115 S. Ct. at 865-67. claims claim-assuming such substantive/freestanding that a indicated innocence” convincing proof of require “more cognizable4-would are any indeed, claim; “the threshold procedural/gateway than a ‘extraordinarily [would be] claim freestanding innocence hypothetical 555, 126 (quoting Herrera, Ct. at 2087 ”House, U.S. at S. high.’ 869). there freestanding claim-where 417, 113 at With a S. Ct. U.S. at new evidence original trial-the the fairness of question is no about Schlup, innocence.” petitioner’s] [the “unquestionably establish must 4 assumed, argument, only that for the sake of Supreme has Court House, 547 possible the federal Constitution. are under claims ofinnocence substantive 417, 2086-87; Herrera, Ct. at 869. 554-55, U.S. at 113 S. 506 126 S. Ct. at U.S. at

213 316-17, claim, gateway U.S. at 115 S. at 862. a on the 513 Ct. With hand, only “raise[ ] need about other the new evidence sufficient doubt petitioner’s] guilt to in the ofthe trial [the undermine confidence result trial without the assurance that that was untainted constitutional 316-17, U.S. at at Schlup, showing error.” 513 115 S. Ct. 862. The for gateway a claim is lower because petitioner claiming justice

a he falls within of miscarriage trial, at exception [and thus] asserts constitutional error degree conviction is not entitled the same of as one respect concededly Accordingly, petitioner free of constitutional taint. a asserting carry both innocence and constitutional error “need less of a respect burden” with than a petitioner innocence like only Herrera who claimed innocence.

Carriger, (citing at Schlup, 316, 115 F.3d 477-78 513 U.S. at S. Ct. 861). at required Beach I’s articulation ofthe showing for a substantive

innocence claim does accurately not reflect standard high applicable to such proof represents “[A] claims. standard of attempt an to instruct factfinder concerning degree of confidence our society should thinks he have in the correctness factual conclusions a particular type adjudication.” Schlup, 513 U.S. at (internal omitted). Ct. at quotation S. Carriger, marks Ninth Circuit concluded a petitioner asserting substantive/freestanding innocence go beyond claim “must guilt, demonstrating doubt about his affirmatively prove must probably he is innocent.” 132 F.3d at The court cited Justice .5 origin Blackmun’s Herrera dissent as the this standard Justice turn, Blackmun, support discussed two considerations that standard:

First, new evidence of may long innocence be discovered after the time, may defendant’s conviction. Given the passage it be retry difficult for the State defendant who relief from obtains his conviction or sentence on an actual-innocence claim. The majority opinion, assumed, Rehnquist only In the Herrera Chief Justice for the argument, cognizable, sake of substantive innocence claim thus did and he claim, except “extraordinarily articulate the standard for such a to note that would be Herrera, 417, 113 high.” Blackmun, hand, Ct. at 506 U.S. S. 869. Justice on other cognizable, showing concluded that a substantive claim is and he thus articulated what necessary Herrera, 441-44, 113 he believed is to obtain relief under it. 506 U.S. at (Blackmun, Stevens, Souter, JJ., dissenting). S. Ct. at & 882-83

214 the final word may constitute thus proceeding

actual-innocence fact, this light In of may punished. be the defendant on whether should or sentence constitutionally valid conviction an otherwise constitutionally Second, after conviction lightly. aside not be set presumption of of the the defendant strips trial adequate the proving of bears the burden government innocence. doubt, the once but beyond a reasonable guilt defendant’s must innocence so, proving done the burden has government inquiry is The actual-innocence defendant. to the convicted shift sufficiency of the from review distinguishable therefore is the defendant is not whether question the where has met its constitutional government whether the innocent but guilt beyond a reasonable defendant’s proving the burden the determination of challenge a defendant seeks doubt. When sentenced, it is fair validly convicted after he has been guilt innocence, just not his proving him the burden of place on guilt. raising doubt about his Stevens, (Blackmun, 442-43, 113 S. Ct. at 882-83

Herrera, U.S. at 506 omitted). (citations Notably, Justice Souter, JJ., dissenting) & as ill-suited to substantive rejected Sawyer standard Blackmun 6, 113 & n. S. Ct. at 882 & Herrera, U.S. at 442 inquiry. 506 innocence Souter, JJ., (Blackmun, Stevens, dissenting). & n. 6 discussion, contemplated Herrera Court this To summarize 119¶ claim. freestanding innocence standard for a “extraordinarily high” an Likewise, the Court Schlup at 869. at 113 S. Ct. 506 U.S. petitioner’s new fail unless that such a claim would indicated innocence. 513 U.S. at establishes]” his “unquestionably evidence claim of raising a substantive 316-17, petitioner Ct. at 862. A 115 S. of a fair and product conviction was the concedes that his innocence beyond a proved guilt has government trial. The error-free doubt, stripped presumption of the and he has thus been reasonable claim, is petitioner If on his substantive innocence. successful (see retry Opinion, him may the State not exonerated and forever 13). considerations, that apparent it seems we light of these ¶ claim proof for a substantive appropriate standard understated (even convincing I, by clear enough 44. It is not to show in Beach ¶ evidence) petitioner found the juror would have that no reasonable claim, go petitioner must on a substantive guilty.6 prevail To 6 freestanding reason, apply the standard for claims stated I For this would today’s Opinion 13, 16, in future cases. n. 4 of ¶ at ¶ affirmatively, raising guilt; about his he must beyond doubt Moreover, he must do so unquestionably, establish his innocence. light proof guilt on and in of the of his based reliable new evidence 417-19, I Herrera, U.S. at Ct. at trial. S. 869-70. standard-which, note, I apply foregoing overrule Beach I and 48-49, recognition Pope, Schlup with our consistent while “only convincing reviewing court petitioner has be successful likely would not him in jury light a reasonable convict new evidence,” petitioner present proves “must new Herrera evidence she he or did not commit the crime.”

2. Standard Procedural Claims noted, adopted As we a modified of Clark test version as ¶120 analyzing procedural I, the framework for a innocence claim. Beach already discussed, For 45-48. the reasons the Clark test was ¶¶ not test, as a miscarriage justice envisioned be used fundamental of 107-110, not applied purpose. supra. should be for that See ¶¶ specific As for the showing needed to on a prevail ¶121 claim, procedural/gateway in I opined Schlup, Redcrow, we Beach that equivalent” and Clark “rough[ly] standards, articulate and we thus apply directed District Court to as Schlup part Redcrow of I, 45, 48, fifth Clark’s factor. Beach I do agree 51. that the ¶¶ standards from these three are I equivalent, agree cases nor do they can or be should fused into one. First, Clark, under fifth factor of “the evidence must

indicate that a trial a probability resulting new has reasonable in of a Clark, different outcome.” 34. Schlup, conversely, Under ¶ petitioner must likely juror, show it is “more than not” that “no acting reasonably, would voted guilty.” have to find him Schlup, 513 327, 329, 867, U.S. at explained Clark, 115 S. Ct. at 868. 36, We ¶ that the probability’ “reasonable is standard lower than the “more (albeit, than likely not” using standard the terms “probably” and “51 not”). or percent greater chance” in lieu likely of “more than The Supreme Court made has similar observations. U.S. Schlup, 513 at 327 45; & n. 115 at 332-33, S. Ct. 867 & n. 513 Schlup, U.S. at (O’Connor, J., S. atCt. concurring). Showing “a reasonable probability of... a different outcome” is sufficient for granting a new trial to who days guilty defendant files a motion within 30 after wholly verdict. But it is finding insufficient for a fundamental miscarriage justice procedurally would warrant review of years barred constitutional claims after asserted the conviction. The miscarriage justice exception applied must remain “rare” and be at 321, 115 S. Ct. at 513 U.S. “extraordinary Schlup, case.” in the

only 864. Schlup standard inRedcrow, foregoing applied Second, we Redcrow, But near 37. ¶ claims. petitioner’s of the

in our evaluation “A fundamental stated: then paragraph, we that same the end of find, ofnew light jurya could only when arises miscarriage justice the crime.” innocent of actually is defendant evidence, that and 51 oí at language adopted Redcrow, This is the ¶ however, jury “a is not whether stage, gateway at question I. The Redcrow, 37. actually ¶ innocent.” is that the defendant find ... could doubt.” reasonable would have “any juror reasonable It is whether analysis gateway Ct. at 2077. House, at 126 S. 547 U.S. do. do, jury could not what jurors would what reasonable focuses on (distinguishing Ct. at 868 115 S. 513 U.S. Schlup, See evidence-i.e., any whether of insufficient claims governing standard governing the standard convicted-from juror could have rational convicted; the have juror would no reasonable Schlup-i.e., whether conclusion, reach its the trier offact to power” “the focuses on former fact). The ofthe trier of likely behavior” focuses on “the the latter while Redcrow, 37, not a correct statement language from quoted standard. gateway innocence Schlup’s under law justice” miscarriage of course, defining “fundamental Of approach adopt the same law, required are not we under Montana Nevertheless, habeas cases. Court in federal Supreme applied Pope. In in Redcrow Schlup the standard adopt to purported we Court’s definition of Supreme “[t]he indicated that doing, so we longstanding our justice comports with” miscarriage of fundamental regularly procedural bars applying of importance of “the recognition view, gateway Redcrow, my Schlup’s In consistently.” 34. ¶ well-considered, to that and I would adhere is sensible and approach escape to petitioner seeks postconviction in cases where approach constitutional review of otherwise barred bar and obtain procedural standards and tests analysis the other inject we into claims. When engender confusion purposes, we created for different were reasons, I For these analytical framework. Schlup’s clear undermine the entirety and reaffirm I test in its the Beach would overrule Schlup. forth in analytical approach set Summary D. alleges constitutional who sum, petitioner a postconviction from barred trial, procedurally who is original but

errors in miscarriage a fundamental claims, must demonstrate those bringing

217 justice in to order receive review his claims on the merits. To do so, petitioner must supplement his constitutional claims with a (as showing sufficient of factual innocence from legal distinct innocence). specifically, petitioner More must come forward “with evidence, reliable it exculpatory new evidence-whether be scientific accounts, trustworthy eyewitness physical or critical evidence-that presented 324, 115 not at Schlup, was trial.” 513 U.S. at S. Ct. at 865. that, light evidence, The it petitioner must show of this new is more than likely juror, acting reasonably, not that no would have voted to beyond guilty 327, find him at Schlup, reasonable doubt. 513 U.S. 867, 115 S. Ct. at 868. court, turn, examine reviewing must all new, incriminating exculpatory-without regard evidence-old and necessarily to whether would be admitted under the rules of admissibility govern record, at trial.7 Based on this total the court reasonable, make a probabilistic must determination about what properly jurors 327-29, instructed do. Schlup, U.S. at House, 867-68; 538, 126 S. Ct. at at Ct. U.S. S. at 2077. The court’s independent function is not to make an factual determination about occurred; rather, likely jurors what it is to likely assess how reasonable overall, House, would react to newly supplemented record. 547 U.S. 538, 126 S. Ct. at demanding, 2077-78. While standard is it does require guilt certainty petitioner’s absolute about or innocence. The gateway stage burden at the likely “is demonstrate that more than not, light new ... any juror reasonable would have House, reasonable doubt.” 547 U.S. at 126 S. Ct. at 2077. If the petitioner showing, makes this then court will review his constitutional claims on the in a postconviction proceeding merits from he previously procedurally which was If prevails barred. he on his claims, petitioner constitutional then the is entitled to a new trial. procedural/gateway framework, Distinct from this innocence particular point, Pope On petitioner’s this I our believe refusal in consider statement; open confessions to the crime—one in a sworn the other in court-was error. 6-10, Pope, promised Pope’s against See The State had not to use confessions him, preclude considering but did not this Court from the confessions in determining “actually By limiting he whether innocent” crime. our question “only evidence,” Pope, consideration of that admissible we violated Schlup’s question command that the court consider all the evidence. Since the innocent, petitioner factually agree whether the is I with Rice Justice the Pope’s guilt Pope, confessions were evidence of that should been have considered. 89¶ J., (Rice, Gray, C.J., dissenting). & substantive/freestanding claim of under a relief may seek petitioner errors allege constitutional does not There, petitioner the

innocence. underlying his conviction proceedings that the trial; his he concedes in U.S. at Schlup, free.” fair error “entirely and were sentence factually is conviction that his instead claims 860. He 314, 115S. Ct. at thus imprisonment continued execution or that his incorrect and of convincing proof “more requires This the Constitution. violate House, 547 requires. innocence standard gateway than the innocence” raising beyond go must petitioner 555, 126 Ct. at 2087. S. U.S. at affirmatively, innocence his must establish guilt about doubt light and in reliable new evidence based on unquestionably, 862; 316-17, 115 S. Ct. U.S. at Schlup, 513 at trial. guilt of his proof F.3d at 869-70; Carriger, 132 417-19, 113 Ct. at S. Herrera, 506 U.S. at MCA, 46-21-102(2), is to how § arises as Finally, question in analyses Schlup and Herrera consistently applied to be This petitioner. 46-21-102(2), MCA, is available to cases where § states: section evidence newly discovered alleges the existence

A claim that a whole evidence as light of the that, and viewed proved if criminal engage in the did not petitioner that the would establish convicted, may be raised petitioner for which conduct the conviction the date on which year filed within petition discovers, or petitioner date on which final or the becomes discovered, existence ofthe reasonably have should later. whichever 46-21-102(2), MCA.

Section apply the Crosby discussed, appropriate we deemed As Crosby, section. filed under this timely petition to a Clark test claims, “actual innocence” discussion of foregoing light 20. In suited to properly the Clark test is however, whether question I Clark, defendant must show: petition. Under analyzing such (1) the defendant’s discovered since must have been The evidence trial;

(2) must not be the evidence sooner the failure to discover part; defendant’s diligence on the of a lack of result trial; (3) the issues at material to the evidence must be merely (4) cumulative nor be neither the evidence must impeaching; reasonable

(5) trial has a indicate that a new must the evidence in a different outcome. resulting probability Clark, These bear whether trial be factors on a new should (the 46-16-702, statute); granted under MCA “new trial” § 46-21-102(2), MCA, hand, says nothing on the other about new § test, moreover, only trial. The a reasonable requires probability Clark outcome; 46-21-102(2), MCA, in a that a new trial will result different § conversely, requires the evidence to “establish” he did petitioner’s engage not in the criminal which conduct for he was convicted. The requires diligence; Clark court test the to assess the defendant’s 46-21-102(2), MCA, however, its diligence § has own standard: the petition timely year is if it filed is within one of the date on the which discovered, conviction final the which petitioner became or date on the reasonably discovered, or should have the existence of the whichever is later. The Clark test requires the evidence to be material to the issues at trial and merely not cumulative or impeaching; 46-21-102(2), MCA, short, states no § such criteria. In the Clark test 46-21-102(2), MCA, and require showings differently distinct for § situated individuals. history 46-21-102(2), MCA, I note that the legislative of while § thin,

somewhat is originally consistent with this conclusion. As (1997) proposed, House Bill 222 filing reduced the time limit on petition postconviction year, relief one exceptions. no Opponents argued categorical ignored of bill that this limitation recent developments in DNA testing courts from prevent considering testing cases in which DNA proved unequivocally that the petitioner Apparently was innocent. such response objections, in Judiciary House Committee House incorporate amended Bill 222 to “newly discovered evidence” exception 46-21-102(2), now contained at § MCA. on 46-21-102(2), Based the statute’s language, appears §

MCA, effectively-though perhaps intentionally-a is codification of the substantive/freestanding Supreme claim that the Court in Herrera (and House) again only assumed, for the of argument, sake cognizable under Court, the federal Constitution and this likewise, actually has assumed but grant exists has never relied on to relief. An obvious one-year filing difference is the deadline 46-21-102(2), Supreme § MCA. Neither Court nor this Court specified claim whether a substantive innocence under timeframe particular filed must be within

Constitution8 resolve necessary I it is the new do not believe discovering evidence. necessary to here, as it is Until such time question however. one-year limit should not control the statute’s decide whether well, complicating further as I would avoid constitutional-based claims simply law already complex apply area of above-stated an brought claim of innocence whether it is standards for a substantive 46-21-102(2), Thus, the Constitution or under MCA. § under the his affirmatively unquestionably establish petitioner must the twelve innocence, on new evidence discovered within based reliable light proof filing petition of his preceding months trial. guilt Beach’s Claim V. Discussion of Beach’s explains why Court new evidence persuasively foregoing satisfy requirement the threshold fails to Opinion, not “reliable.” 68-78. tests-specifically, his evidence is following I agree analysis join I that it. also offer the with must why additional observations as to Beach’s claims fail. A. Innocence Substantive a “extraordinarily high” required the standard Under innocence, finger

substantive/freestanding simply pointing claim of the here, attempted Beach to do possible perpetrators-as at other has Likewise, hearsay-is attempting poke on largely inadequate. based attempted holes to the crime-as Beach has also in one’s confession (and here, jury rejected) in his using arguments the same he made the affirmatively unquestionably not that 1984 trial-does establish There petitioner the is innocent. is no DNA or other scientific evidence trustworthy Beach the There is no proving that did not commit crime. establishing that Beach was in another location when alibi evidence one, confession, no a the crime occurred. There is let alone reliable the and that stating another individual that he or she committed crime beyond a reasonable jury Beach did not. Beach’s trial found bludgeoned doubt that Beach Nees to death with crescent wrench that a claim Justice Blackmun concluded Herrera substantive innocence Eighth cognizable Clause under the Cruel and Unusual Punishments of 506 U.S. and under the Due Process Clause of Fourteenth Amendment. Amendment Stevens, Souter, JJ., (Blackmun, dissenting). 430-37,113 & These S. Ct. at 876-80 II, respectively, correspond Montana Sections 22 and with Article Constitution. assuming9 a tire Even that raised iron. Beach a substantive claim-i.e., conviction, although of a fair product

innocence that his trial, factually and error-free is nevertheless incorrect-Beach’s short proving evidence falls far claim.

B. Procedural Innocence analysis conducting gateway stage our at the we must decide, all likely based whether it is more than not on juror beyond that no have find Beach guilty reasonable voted to mind, agree a reasonable doubt. With that standard in I cannot sufficiently Beach’s contention that his new evidence establishes his say, actual innocence. Beach to the crime. He did simply confessed not Rather, did provided “I it.” he intimate minute of exactly details how he committed the then disposed crime and the evidence. With (the perhaps exception description one wearing what Nees was night), the details of his confession were consistent with crime Opinion, scene. 29 n. 6. Importantly, provided Beach details that investigators instance, previously were unaware of.For he stated that used garbage bag dragging body river, he when Nees’s which explained along the lack of blood trail. drag posits While Beach that the Louisiana planted officers such details of the crime in his head, transcript telephone of a conversation Sheriff between Sergeant Mahlum and Via reflects that Beach himself provided the example, details.10For Mahlum exactly wanted to know where pickup keys had thrown the into the replied river. Beach that he had keys thrown the to his as he right, facing body, Nees’s which upstream. meant Contrary to Beach’s insinuations Mahlum and the

Louisiana engaged conspiracy officers in a coerce giving him into commit, false to a confession crime he did not there is no evidence claim, substantiating this let alone new evidence that did jury already rejected when theory consider it this back 1984. 9 Contrary brought I to statements in Beach that Beach “both and substantive procedural” January I, 43, 44, petition, innocence claims in ¶¶ his 2008 see Beach he actually only procedural 99-100, Schlup, supra. raised under claim see confession, Following speak got asked with Beach to Mahlum. in touch Via put Mahlum keep and then Beach the line. on Beach asked Mahlum “to kinda it away my get from pretty “[slhe’ll mother till I to talk chance to her” because take it Thereafter, spoke line, though appears hard.” Via and Mahlum without on Beach the enough answers, Via, provide questions. Beach through that was to close to Mahlum’s and consistent

Furthermore, never a coherent provided has Beach man-confessed to he-a innocent why supposedly as to explanation that Calhoun gone alleging Beach has from brutally murdering Nees. confess, if not to in the chair” he did “fry him he would electric told advances, him with homosexual that threatened claiming the officers he the so could be contending sought only please he to officers that to Montana, being he felt after held asserting helpless to to that returned the days. theory incommunicado Beach even offered for several fed before his being milkshake while he was drugged his the officers contrary theory that he had not confession; yet, alleged the he also suffering at the time of his hunger fed and from extreme been why he confessed are Bottom line: Beach’s theories confession. continually evolving, only which serves to undermine inconsistent point, has credibility of them. More to the never of all any substantiating of his presented a of credible evidence shred supposedly false giving confession. explanations insight Supreme provides in House into opinion Court’s necessary through gateway showing pass obtain sort Not the DNA evidence of barred constitutional claims. even review crime question into House’s involvement in the and the calling “evidentiary disarray” surrounding enough the blood evidence were House, against at prosecution’s evidence him. U.S. overcome 540-48, Supreme S. 2078-83. The Court also considered 126 Ct. at had suspect evidence that another murdered victim-in compelling had particular, provided the victim’s husband. Two witnesses credible crime; testimony actually confessed to the two more the husband (a fight by the husband and an suspicious had described behavior alibi) time crime; false attempt to construct a around House, history described a of abuse. 547 U.S. at still other witnesses 548-53, 126 S. at After its consideration of all the Ct. 2083-85. evidence, the Court concluded that while the case was not Supreme exoneration, proof connecting conclusive “the central forensic one of blood and the semen-has been called into House crime-the put pointing has evidence question, and House forward substantial House, 553-54, at suspect.” at 126 S. Ct. a different 547 U.S. “although is Accordingly, Supreme Court concluded issue close, jury rare heard all the . . . this is the case where-had the likely than that no reasonable conflicting testimony-it more juror viewing as a would lack reasonable doubt.” the record whole 554,126 contrast, explained House, U.S. S. at 2086. as Ct. stated, just simply for the there is no Opinion, this Court’s reasons falsely murdering reliable evidence Beach to Nees and that confessed “pack girls” are instead for her responsible that death. years, through Over the has been one last Beach federal

¶137 including Circuit; an proceeding, appeal habeas to the Ninth two postconviction clemency proceedings; executive and two state he has proceedings. persistently While maintained his innocence throughout proceedings, repeatedly produce any these he has failed to establishing reliable new evidence that fact to the satisfaction of the decision, or August board tribunal involved. In its that, Board Pardons Parole aptly Montana observed “[u]ltimately, that home gone his statement detectives he had after it, murder and to convince do chilling tried himself he did not is, provides seems Board explanation as what to this the likeliest observed, he is doing what still.” As the Board further order to says believe Beach’s claim he did not do what his confession he did, every single “we would have believe that one of the law lying enforcement officers was steadfast in at the time the confession taken, through suppression hearing, through trip another trial, changed Montana for the and even most now when have careers one life-threatening faces a such adopt health crisis.” To a belief require persuasive a far more evidentiary showing than Beach has made here.

VI. Conclusion conclusion, while I concur in Court’s application ¶138 I analytical framework, only Beach I purposes do so for ofthis case and Beach’s are claims that now before us. For purposes of future cases involving innocence, or procedural substantive claims of I would apply overrule Beach I and the standards that I detailed have above. Lastly, I agree fully with the analysis Court’s and conclusion that and, thus, Beach’s new is not evidence reliable that Beach’s innocence Opinion, claims must fail. 68-78. I concur. BAKER, RICE,

JUSTICE JUSTICE and DISTRICT COURT join JUDGE SIMONTON Concurrence ofJUSTICE MCKINNON. JUSTICE MORRIS dissents. This post- Court determined that Beach could petition relief, though time-barred,

conviction even such relief was otherwise Beach, if he could produce new evidence of actual innocence. We remanded the evidentiary case District Court to conduct an hearing. applied The District Court procedures the standards and set forth Beach. The District Court determined that Beach’s witnesses Beach’s actual hearing demonstrated

at the offered new evidence a new trial. granted innocence by which the forth and standards procedures We set light of his should Beach’s new evidence Court evaluate District hearing or to be found relief post-conviction effort to obtain new Beach, procedures These serve as law of the actually innocent. 51. ¶ Court in its recognized has the “states long This Court when case. decision, necessary law to the such opinion principle or rule of the v. Beartooth Elec. becomes the law of Fiscus pronouncement case.” also,Federated (1979); 434, 437, 591 P.2d 196, 197 see 180Mont. Coop., 288, 33, Anderson, 60, MT 297 Mont. 991 P.2d Co. v. 1999 Mut. Ins. ¶ throughout of case “must be adhered to its 915. The law the progress, upon subsequent in the trial court and subsequent both clearly that the “may opinion if the be of former appeal” even Court 437, Fiscus, 180 Mont. 591 P.2d at 197-98. decision is erroneous.” at testimony of each of Beach’s The District Court found ¶142 Court credible and The District observed witnesses be believable. each The District Court presented by the demeanor of witness Beach. carefully detailed what it found credible about each witness. The the fact that most witnesses had no District Court considered Beach, Nees, the town or had Poplar, accordingly, connection to Court, fact, no to lie. The as the sits motive District trier better credibility position to observe the and determine than this witnesses 89, 31, 173, Finley, 199; MT 252 Court. State v. 2011 360 Mont. P.3d ¶ Co., 494, 138, v. 905 AA Corp. Double Newland & Mont. P.2d (1995). presided The has at least 35 District Court over criminal experience gauging credibility has I cannot trials and witnesses. determination vantage this that the Court’s say point from District credibility believability rises to the regarding witnesses’ level Clark, clearly erroneous. 39. ¶ weighed The District Court next the evidence the State presented against at Beach’s trial Beach’s new original evidence juror had that no reasonable determine whether Beach demonstrated beyond Beach, find Beach doubt. guilty reasonable ¶ 331-32, 115 513 U.S. at S. Ct. at The Court concludes that Schlup, 869. ignored presented had the District Court the evidence that the State against specifically Beach in the trial. 21. District Court The ¶ concern, however, in this its order on the State’s motion for addressed stated, “[i]t is stay. [Beach’s] The District Court confession argument. entirety of the State’s That confession was constitutes by this court in its Order.” considered point Beach’s constituted “the of this confession focal whole 85. The at inquiry.” Concurring Opinion, State conceded Beach’strial ¶ reliable the crime physical that no evidence retrieved from scene tied Concurring Opinion, murder. District Court’s ¶ that it compared hearing against statement had evidence at properly Beach’s confession indicates that the District Court weighed the State’s evidence from Beach’s 1984 trial against new evidence Beach, presented 48; 331-32, 115 at the hearing. Schlup, 513 U.S. ¶ S. Ct. at 869. The court’s it to weighing evidence led conclude that no hearing

need existed for Beach have a post-conviction new relief standing based on the fact that Beach had demonstrated free by meeting higher actual innocence claim burden of persuasion. Beach, 44-45; Schlup, 513 U.S. at 115 S. Ct. at 861. The concluded, instructed, Court juror, properly “[n]o District reasonable could have testimony Eagle-Boy] [of combined that Ms. with the testimony of Ms. Eagle-Johnson, White Ms. Smith and Ms. Molar and not had reasonable doubt whether Mr. Beach committed murder.” The District Court followed this Court’s on instructions remand from Beach, 51. This ruling likely will final chapter marks what be the in the

saga Barry Beach. a justice system We oversee criminal that seeks guilt through resolve defendant’s processes created and by Humans, nature, administered humans. are fallible and the processes that share fallibility. humans create this same system requires that we final judgment make the on the District Court’s ruling. Jackson, context, Justice different era and different Supreme described United States role in reviewing Court’s infallible, of a “[w]e decisions state court: are not final because we are are only but we infallible we Allen, because are final.” Brown v. (1953) 443, 540, (Jackson, J., U.S. 73 S. Ct. concurring). The attempted comply District Court scrupulously with its mandate from Court alleged Beach, this to consider Beach’s new evidence. ¶ say I rulings cannot the District Court’s rise level of abuse discretion, Beach, 14, and, affirm accordingly would the order of the District Court. join

JUSTICE COTTER and JUSTICE WHEAT the Dissent JUSTICE MORRIS.

Case Details

Case Name: State v. Barry Allan Beach

Court Name: Montana Supreme Court

Date Published: May 14, 2013

Citation: 302 P.3d 47

Docket Number: DA 11-0723

Court Abbreviation: Mont.