Judge won't step down in Beach evidence case

A judge who denied convicted murderer Barry Beach's petition for a hearing on what Beach calls new evidence in the case said he won't assign a new judge to the case. Beach, who is serving 100 years in prison for the 1979 murder of 17-yearold Kim Nees of Poplar, is seeking a new trial, arguing that testimony by others during a state board of Pardons and Parole hearing in 2007 connected a group of girls to the murder. However, the board called that testimony double and triple hearsay that would not have been admissible in court. The board rejected Beach's petition to be pardoned, have his sentence commuted to time served or allow him the possibility of parole. In March 2008, Cybulski rejected Beach's request for a hearing, saying that prosecutors had reviewed the evidence and interviewed witnesses. "Had this shown that Beach was truly innocent, the prosecutors would be morally and ethically bound to act to see that justice was done," Cybulski wrote. In November, the Supreme Court said Cybulski's "skeletal" order did not include the analysis on which he based his decision and ordered another hearing. "The judiciary cannot abdicate its responsibility to undertake an independent evaluation based on the court's deference to the state's perceived adherence to moral or ethical obligations," Justice Brian Morris wrote for the court. Beach's attorney, Peter Camiel, has said the case will now go back to District Court for the judge to decide if testimony given before the Board of Pardons and Parole "is in fact new evidence," or was available when Beach was tried. If the judge finds that the testimony is new evidence, he must then hear from those witnesses, along with the state's cross-examination, and decide if there is a "reasonable probability" That a new jury hearing the case would have reasonable doubt about Beach's guilt. If so, Beach would get a new trial. Camiel filed a motion for substitution of judge shortly after the high court's ruling last fall, but Cybulski denied the motion on Jan. 12. Another attorney for Beach, Terrance Toavs of Wolf Point, said Beach hasn't decided if he will appeal Cybulski's order. "We're discussing the options, and it will ultimately be Barry's call," Toavs said.