Judge Says Beach Still Deserves a New Trial - ABC FOX MONTANA NEWS, WEATHER, SPORTS - KTMF/KWYB

Judge Says Beach Still Deserves a New Trial

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MISSOULA -

Barry Beach's attorney is asking the Montana Supreme Court to reconsider its decision which put him back behind bars.

The attorney for the convicted murderer said in the petition for rehearing filed Tuesday that the Supreme Court originally ordered a 2011 hearing to determine the credibility of new evidence in the case. He said the majority of justices in the recent 4-3 decision "discarded wholesale" District Judge E. Wayne Phillips' findings from that hearing and instead applied a new standard of review in the case.

The ruling said Phillips gave too much weight to testimony offered by new witnesses who said Kimberly Nees was killed in an out-of-control fight among girls.

Judge Phillips is speaking out about the recent Supreme Court reversal of his decision. He responded to questions in an exclusive email telling ABC FOX MONTANA he still thinks Beach should get a new trial.

On November 23, 2011, Judge Phillips issued a ruling saying based on new witness testimony Beach should get a new trial. The decision meant Beach would walk away from a courtroom a free man for the first time in nearly 30 years.

State prosecutors appealed the decision and two weeks ago the Montana Supreme Court issued a decision saying Judge Phillips failed to consider the old evidence in addition to the new evidence. They overturned his decision and sent Beach back to prison.

Phillips has since retired from the bench, but after making a few phone calls ABC FOX MONTANA was able to reach him by email. Sarah Gravlee asked him what he thought of the recent Supreme Court decision and if he still thinks Beach should get a new trail.

In his response Judge Phillips makes it clear that he respects all the justices of the Montana Supreme Court including Justice Jim Rice who wrote the majority opinion sending Beach back to jail, but Phillips also makes it clear he thinks his decision should hold.   Phillips wrote, "Justice Rice and I have known each other for many many years, I like him a lot; I respect his analysis, but I think I was correct in mine frankly."

Still, Phillips said he struggles with his decision to free Beach knowing that the man is back behind bars again. He writes, "My error created a situation where a man has all the unimaginable joys of freedom after 28 years in prison is sent back (sic), never to see the light of day again... I just regret that I may have done a great harm to his spirit."

Phillips said under previous legal precedent, the new evidence presented in his courtroom should grant Beach a new trial. He writes "There was no question in my mind that a jury SHOULD hear the new evidence."

When asked if he thinks Beach killed Nees all those years ago, Phillips writes, "I had the authority under the Absolute Innocence proceeding to let him go free.  But there was enough evidence that he may actually have been present that night.  Whether he did the foul deed, the three women did it, whether he was present and too drunk to even know what was going on and has since translated that into innocence, I do not know.  It is (a) decision like that which makes me glad we have a jury system.  I think a jury should have had a shot at it all."

Beach has served about 28 years of a 100-year sentence without the possibility of parole. Phillips said if Beach were tried and convicted of the same crime today, his maximum sentence would be about 25 years. He writes, "It is a form of injustice that he was sentenced in the day and age he was."

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