Justice JIM RICE delivered the Opinion of the Court.
¶ 1 The State of Montana appeals from the order of the Fifteenth Judicial District Court, Roosevelt County, granting Barry Allen Beach (Beach) a new trial in the matter of the homicide of Kim Nees (Nees). We reverse the District Court, and address this issue:
¶ 2 Did the District Court err by concluding that Beach was entitled to a new trial because he had demonstrated his actual innocence?
¶ 3 In the early morning hours of June 16, 1979, police officers of the Fort Peck Tribe discovered Nees's body floating in the Poplar River. She had been bludgeoned to death. On January 7, 1983, Beach confessed to killing Nees, and, on April 13, 1984, a jury
¶ 4 Beach has challenged his conviction in the courts and applied for clemency. In 1985, Beach appealed to this Court. We upheld his conviction and sentence. State v. Beach, 217 Mont. 132, 705 P.2d 94 (1985). In 1995, Beach filed a petition for postconviction relief. We dismissed Beach's petition because it had been filed beyond the five-year statutory limitation period, and Beach did not submit new evidence establishing that he did not kill Nees. Beach v. Day, 275 Mont. 370, 913 P.2d 622 (1996). Beach then filed a petition for habeas corpus in federal court, asserting his actual innocence. United States Magistrate Judge Anderson recommended that Beach's petition be denied because Beach was procedurally barred from presenting his constitutional claims, and his "presentation of `new evidence' d[id] not warrant a finding of actual innocence as an exception to the procedural bar." Beach v. Mahoney, CV-92-92-BLG-RWA (D.Mont. Aug. 6, 1997). Federal District Court Judge Shanstrom agreed with Judge Anderson and denied Beach's petition, holding that Beach's evidence was insufficient "to warrant a finding of actual innocence...." Beach v. Mahoney, CR 92-92-BLG-JDS (D.Mont. Mar. 31, 1998). The Ninth Circuit affirmed. Beach v. McCormick, 191 F.3d 459 (9th Cir.1999) (table). In 2005, Beach filed an application for executive clemency with the Montana Board of Pardons and Parole (the Board). The Board denied Beach's application 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 submitted an application to Governor Brian Schweitzer who referred it back to the Board. A three-member panel (the Clemency Panel) of the Board held a three-day hearing to determine if Beach's new evidence established his "actual innocence." On August 20, 2007, the Clemency Panel denied Beach's application because "[n]o proof of innocence, or newly discovered evidence of non-guilt or justification ha[d] been presented."
¶ 5 In 2008, Beach filed another petition for postconviction relief in state district court, alleging that newly discovered evidence proved his actual innocence. The district court summarily denied Beach's petition in a one-page order. On appeal, we reversed and remanded for the district court to hold an evidentiary hearing on the newly discovered evidence alleged in Beach's petition. Beach v. State (Beach I), 2009 MT 398, 151, 353 Mont. 411, 220 P.3d 667.
¶ 6 On remand, the District Court held a three-day hearing, and took testimony from witnesses that suggested a group of teenage girls had killed Nees. The District Court concluded that Beach had presented sufficient evidence of his "actual innocence" to warrant a new trial. The District Court subsequently released Beach from the Montana State Prison pending appeal.
¶ 7 The State appeals.
¶ 8 The standard of review of a district court's disposition of a petition for post-conviction relief is whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Griffin v. State, 2003 MT 267, ¶ 7, 317 Mont. 457, 77 P.3d 545; Porter v. State, 2002 MT 319, ¶ 13, 313 Mont. 149, 60 P.3d 951. However, an actual innocence claim brought in a postconviction relief proceeding presents a unique posture for the reviewing court. The petitioner has been duly convicted — the State has introduced evidence sufficient for a jury to find the petitioner guilty beyond a reasonable doubt. Before overturning that verdict, the reviewing court must determine whether the petitioner has supported his innocence claim "with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995); accord Herrera v. Collins, 506 U.S. 390, 417-18, 113 S.Ct. 853, 869-70, 122 L.Ed.2d 203 (1993). To determine if the evidence is "reliable," the reviewing court must analyze "whether the new evidence is trustworthy by
¶ 9 As noted above, in 2008 Beach filed another petition for postconviction relief, alleging that newly discovered evidence demonstrated his "actual innocence." Beach I, ¶ 13. The postconviction statutes applicable to Beach's conviction required him to bring his claim within five years of his conviction. Section 46-21-102, MCA (1995); Beach I, ¶ 23. While there was no statutory exception to this time bar, we have recognized an equitable tolling of the time limit when "strict enforcement would result in a fundamental miscarriage of justice." Beach I, ¶ 23; State v. Perry, 232 Mont. 455, 462, 758 P.2d 268, 273 (1988) (overruled on other grounds in State v. Clark, 2005 MT 330, ¶ 32, 330 Mont. 8, 125 P.3d 1099). The "fundamental miscarriage of justice" exception applies when the petitioner shows he is "actually innocent" of the crime for which he was convicted. State v. Pope, 2003 MT 330, ¶¶ 40-53, 318 Mont. 383, 80 P.3d 1232.
¶ 10 In Beach I, we cited the five-prong test outlined in State v. Clark, 2005 MT 330, 330 Mont. 8, 125 P.3d 1099 as the usual framework to determine whether "newly discovered evidence" warranted a new trial:
Beach I, ¶ 38 (quoting Clark, ¶ 34). However, recognizing that Clark was not a postconviction relief case where the petitioner was filing beyond the statutory time bar, we modified the fifth element of the test to "conform to the miscarriage of justice standard." Beach I, ¶ 48. To satisfy the modified fifth element, Beach was required to demonstrate his "actual innocence." Beach I, ¶¶ 42-43.
¶ 11 We have recognized two species of "actual innocence" claims — substantive and procedural. In Pope and Beach I, we discussed the substantive innocence framework from Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), and the procedural innocence framework from Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Pope, ¶¶ 40-49; Beach I, ¶¶ 29, 44.
¶ 12 A Herrera substantive, or "freestanding," innocence claim alleges that newly discovered evidence demonstrates that the petitioner is "actually innocent" of the crime for which he was convicted in the true sense of this phrase — that the defendant truly did not commit the crime. Herrera, 506 U.S. at 417, 113 S.Ct. at 869. However, a duly convicted defendant remains guilty "in the eyes of the law" and carries presumed guilt, not innocence. Herrera, 506 U.S. at 399, 113 S.Ct. at 860. The presumption of guilt combined with the substantial interest in finality of convictions "necessarily" makes
¶ 13 In Beach I, we stated that this "extraordinarily high" standard of review applied to Beach's freestanding claim of actual innocence. Beach I, ¶ 44. Although Herrera had not done so, we set forth the evidentiary and legal standard as follows: "Beach must show by clear and convincing evidence that... no reasonable juror would have found him guilty of the offense in order for him to prevail on his substantive innocence claim." Beach I, ¶ 44.
¶ 14 The "actual innocence" necessary for purposes of a Schlup claim is different from the "actual innocence" necessary for purposes of a Herrera claim. Schlup, 513 U.S. at 313-14, 115 S.Ct. at 860-61. A Schlup procedural, or "gateway," innocence claim alleges that newly discovered evidence demonstrates that "a constitutional violation has probably resulted" in a wrongful conviction. Schlup, 513 U.S. at 327, 115 S.Ct. at 867. Unlike a Herrera "freestanding" claim, a Schlup claim is premised on an underlying allegation that constitutional error occurred during the trial process, resulting in a wrongful conviction. While a Schlup claim accompanies an assertion of trial error, a Herrera claim assumes that the trial was error free. Schlup, 513 U.S. at 315-16, 115 S.Ct. at 861. A Herrera claim requires "evidence of innocence ... strong enough to make [the criminal sanction] `constitutionally intolerable' even if his conviction was the product of a fair trial." Schlup, 513 U.S. at 316, 115 S.Ct. at 861-62 (emphasis in original). There is no "gateway" in a Herrera claim, as success on the claim forever ends the matter. While a Herrera petitioner is required to affirmatively "present evidence that he did not commit the crime," a Schlup petitioner "need not prove that he did not commit the crime," but "only has to be successful in convincing the reviewing court that a reasonable jury would not likely convict him in light of the new evidence." Pope, ¶ 49 (emphasis added). In other words, a Schlup petitioner must only produce evidence that creates "sufficient doubt about his guilt to justify the conclusion that his [criminal sanction] would be a miscarriage of justice unless his conviction was the product of a fair trial." Schlup, 513 U.S. at 316, 115 S.Ct. at 861-62 (emphasis in original). If the Schlup petitioner makes this required showing, he passes through the "gateway" and is entitled to present to the court his constitutional claims of trial error, despite the procedural bars that would normally prohibit such claims. House, 547 U.S. at 555, 126 S.Ct. at 2087 (the petitioner "may proceed on remand with procedurally defaulted constitutional claims" because he satisfied Schlup's actual innocence "gateway"). If the petitioner subsequently prevails on his constitutional claims, he is entitled to a new trial. Carriger v. Stewart, 132 F.3d 463, 482 (9th Cir.1997) (en banc) (Carriger's success on his underlying constitutional claims "entitled him to a new trial").
¶ 16 In sum, Herrera freestanding claims and Schlup gateway claims both require that a petitioner demonstrate his "actual innocence." Pope, ¶ 48 ("Actual innocence is different in a Herrera petition and a Schlup petition."). A Herrera freestanding petitioner must show by "clear and convincing evidence" that "no reasonable juror" would find him guilty, whereas a Schlup gateway petitioner must merely show that it is "likely" or "probable" that "no reasonable jury" would find him guilty.
¶ 17 The District Court failed to appreciate that both Herrera freestanding claims and Schlup gateway claims require a showing of "actual innocence." Thus, the District Court's expressed intention to proceed "just" on Beach's "actual innocence" claim did not differentiate which kind of claim it was analyzing. As noted above, the term "actual innocence" does not uniquely describe either a Herrera freestanding claim or a Schlup gateway claim — a petitioner must show his actual innocence for either claim. The District Court's analytical error permitted it to pick any rule statement from Beach I pertaining to "actual innocence" — whether it was from the freestanding Herrera analysis or the gateway Schlup analysis — and apply it to Beach's claim. It did so frequently and thereby conflated the standards.
¶ 18 Nevertheless, the District Court ultimately slid to the determination that Beach had succeeded only on his gateway claim, and had failed to meet the stricter requirements of a freestanding claim:
(Emphasis added; brackets in original.)
¶ 19 The District Court thus held that Beach had proceeded through Schlup's "actual innocence gateway." This would entitle Beach to present his time-barred constitutional claims. However, instead, the District Court held that Beach need not present his constitutional claims, but could go straight to a new trial, stating incorrectly that Beach's constitutional claims could then be taken up:
(Internal quotation marks, brackets, and citations omitted). Of course, Pope does not permit leapfrogging from the gateway to a new trial and therein presenting "constitutional innocence evidence." In Pope, petitioner's constitutional claims of trial error were analyzed before relief could be granted. Pope, ¶¶ 68-69. After all, the entire point of passing through the "gateway" is to permit the time bar to be circumvented so that constitutional claims can be presented. Those claims are presented in a postconviction hearing, not within a new trial.
¶ 20 The District Court also failed to apply the unique evidentiary standard of review required in actual innocence cases. As discussed in detail below, a court must analyze not only the credibility and believability of the new proffered evidence, but must also compare that new evidence against the tested trial evidence. Comparing the evidence ensures that the court 1) makes an informed judgment as to what a reasonable juror would do given all of the evidence, old and new, and 2) does not overturn a valid verdict based upon unreliable evidence. In Schlup, the Supreme Court stated that a reviewing court "must make its determination concerning the petitioner's innocence `in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.'" Schlup, 513 U.S. at 328, 115 S.Ct. at 867 (quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142, 160 (1970)). Schlup's reference to "all" of the evidence, including that "illegally admitted" at trial, necessarily encompasses all of the trial evidence. See House, 547 U.S. at 538, 126 S.Ct. at 2077 ("Schlup makes plain that the habeas court must consider all the evidence, old and new, incriminating and exculpatory...."). We have followed this practice. Redcrow, ¶ 37 (rejecting innocence claim because the new evidence failed to "overcome" the evidence of Redcrow's guilt presented at her trial). However, the District Court failed to do so.
¶ 21 The District Court spent nearly half of its 30-page order summarizing and analyzing Beach's new evidence, but made only a passing general mention of one part of evidence presented at Beach's trial — his confession — and did not consider the specifics of Beach's confession. The court rebuffed the State's repeated requests that it analyze the new evidence in light of the old trial evidence, stating: "that is not what the Schlup Court held." The court explained that its refusal to expand its evidentiary inquiry into all of the evidence presented at Beach's trial was based on its reading of Schlup and Redcrow: "Schlup and its Montana progeny deal exclusively with and constantly reiterate the concept of
¶ 22 Freestanding Herrera claims and Schlup gateway claims come to courts in a unique procedural posture. The petitioner has been previously convicted at trial — i.e., the State has already introduced evidence sufficient for a jury to find the petitioner guilty beyond a reasonable doubt. "Thus, in the eyes of the law, petitioner does not come before the Court as one who is `innocent,' but on the contrary, as one who has been convicted by due process of law of [a] brutal murder[]." Herrera, 506 U.S. at 399-400, 113 S.Ct. at 860; accord Herrera, 506 U.S. at 419, 113 S.Ct. at 870 (O'Connor & Kennedy, JJ., concurring) ("petitioner is not innocent in the eyes of the law because, in our system of justice, the trial is the paramount event for determining the guilt or innocence of the defendant") (internal quotation marks and citations omitted). To overcome the presumption of guilt that comes with conviction at trial, an actual innocence petitioner must show that new reliable evidence, when weighed against the trial evidence, demonstrates he is actually innocent of the crime he was convicted of. Schlup, 513 U.S. at 328, 115 S.Ct. at 867. This inquiry necessitates a unique two-step evidentiary standard of review.
¶ 23 Not just any kind of evidence can support an "actual innocence" claim. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324, 115 S.Ct. at 865 (emphasis added). In the context of new testimonial evidence, the court must first determine whether, based solely on the witness's testimony, it finds the witness credible and believable. Then, the court must determine whether the proffered new testimony is credible and believable in light of the evidence presented at the petitioner's trial: "Because Schlup also requires that any new evidence of actual innocence be reliable, the [reviewing] court must analyze not only whether the new evidence throws the pre-existing evidence into doubt, but whether the new evidence itself may be considered reliable in light of the pre-existing evidence." Menefee, 391 F.3d at 172 (Sotomayor, J.); accord Schlup, 513 U.S. at 327-28, 115 S.Ct. at 867; Pope, ¶ 62.
¶ 24 In Anderson v. City of Bessemer, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985), the Supreme Court explained that testing new testimony for both internal inconsistencies and inconsistencies with the factual record ensures that a trial court cannot insulate its findings from review simply by labeling them "credibility determinations":
¶ 25 Menefee well illustrates the propriety of an appellate court reversing a trial court's finding of "actual innocence" when the new evidence is unreliable in light of the pre-existing trial evidence. In Menefee, the Second Circuit reversed the trial court's finding of actual innocence for the petitioner's gateway claim. Menefee, 391 F.3d at 150. The petitioner had been convicted of second-degree
Menefee, 391 F.3d at 165. The Second Circuit found the victim's recantation not credible because the record showed that two New York state prosecutors had interviewed the victim before the original charges were filed, and the victim told the prosecutors that the petitioner had had sexual intercourse with him. Menefee, 391 F.3d at 170. Years later at the innocence hearing, the victim testified that the prosecutors were fabricating his statements because he had denied any impropriety between himself and the petitioner during those interviews. Menefee, 391 F.3d at 170. The Second Circuit found that a juror would not likely credit the victim's "conspiracy" theory that the prosecutors were fabricating testimony:
Menefee, 391 F.3d at 171. Because of the improbability that a juror would credit the victim's conspiracy theory over the testimony of two prosecutors, the Second Circuit held that the victim's testimony was unreliable. Menefee, 391 F.3d at 171. Because the petitioner had not presented any new reliable evidence, it was unnecessary for the Second Circuit to proceed to the second step of the unique standard of review. Menefee, 391 F.3d at 172 ("Because Doe has not presented any new reliable evidence, it is unnecessary to determine whether no reasonable juror would convict in light of Doe's newly proffered evidence."). Only new evidence that is reliable requires further analysis of the claim.
¶ 27 In House, the U.S. Supreme Court reversed the trial court's finding that the petitioner's new evidence was insufficient to show "actual innocence" under the gateway standard. House, 547 U.S. at 554, 126 S.Ct. at 2086. The Court rejected the notion that, absent a showing of clear error in crediting individual witnesses, the Court was required to defer to the trial court's ultimate conclusion as to whether a jury, presented with all of the evidence, would find the petitioner guilty:
House, 547 U.S. at 539-40, 126 S.Ct. at 2078 (emphasis added; internal citations, quotations marks, and brackets omitted). The Court reversed the trial court, and held that House's evidentiary showing was sufficient to demonstrate actual innocence for purposes of a gateway claim, but not for purposes of a freestanding claim:
House, 547 U.S. at 553-55, 126 S.Ct. at 2086-87.
¶ 28 Given this analysis of the proper evidentiary standards of review, we turn to the evidence presented at Beach's 1984 trial, and then to Beach's new evidence.
¶ 29 Beach's trial was held in Glasgow in April 1984. After five-and-a-half hours of deliberations, the jury returned a unanimous guilty verdict. The trial evidence is consolidated below into three substantive areas.
¶ 30 During January 1983, Beach made numerous statements to multiple Louisiana police officers in which he confessed to killing Nees. During this time period, Beach had moved from Poplar to live with his father and stepmother in Monroe, Louisiana. On January 4, 1983, Beach's stepmother called police and turned Beach in for contributing to the delinquency of minors. He was arrested and taken to the Ouachita Parish Sheriff's Office.
¶ 31 On January 5, 1983, Beach telephoned his stepmother from jail and threatened to kill her. Scared, his stepmother and father called the Sheriff's Office and told them Beach had been a suspect in a Montana homicide and might be connected to several unsolved Louisiana homicides. They told law enforcement they were concerned because Beach was "quite capable of committing a murder under certain situations."
¶ 32 On January 6, 1983, Sergeant Jay Via (Sergeant Via) and Deputy Sheriff Richard Medaries (Deputy Medaries) of the Sheriff's Office talked to Beach for an hour. Prior to their questioning, they informed Beach of his Miranda rights and Beach signed a statement that he understood his rights and was waiving them. Beach confirmed that he had threatened to kill his stepmother and that he was, indeed, a suspect in a Montana homicide. Beach explained that he could "fly[] off the handle" and that he dealt with frustration in a "physical way."
¶ 33 On January 7, 1983, Sergeant Via picked Beach up from jail at 12:24 p.m. to conduct an interview. Sergeant Via advised Beach of his Miranda rights in transit and again before questioning him. The interview began at 12:52 p.m., but was interrupted at 12:58 p.m. when another police officer entered the room. Beach was again advised of his rights.
¶ 35 At trial, Shannon O'Brien corroborated Beach's account of what happened at Sandy Beach, with the addition of two details. First, after the car got stuck, Beach threw beer bottles at the car. Scared, O'Brien rolled up the windows and locked the doors and did not emerge from the car until Beach left. Second, the angry Beach told O'Brien and Gourneau that he "wanted to get a woman."
¶ 36 When Beach got home, he looked for beer in the refrigerator and started to make something to eat. He changed his mind, however, and went upstairs and fell asleep in his room. Beach awoke sometime "after dark." He left the house, and started walking toward town. When he got to the Exxon service station, a popular place for Poplar teenagers to meet, he found Nees sitting in her pickup. Beach was dating Nees's sister, Pam, at the time. Beach asked if he could ride around with Nees, and the two drove around Poplar until it was "fairly late at night." Eventually, they drove down to the Poplar River by the "train bridge," where Beach said he turned the conversation to "intimate" topics. He asked Nees about "making love to her boyfriend," and if she would have sex with him. She said no. This "upset him" a little, so he decided to try harder. He smoked "another joint with her" in hope that "she would get a little bit more messed up[.]" Finally, he "reached over to kiss her and she pushed [Beach] away." This made Beach "pretty mad," and he asked Nees why girls around Poplar did not like him. She said it was because he was an "asshole."
¶ 37 This upset Beach "quite a bit." He tried to grab Nees and she slapped him. He reached over, grabbed her by the arm, and pulled her over next to him. Nees fought back. Beach said this made him fly "off the handle again." He got so mad he "didn't really know what [he] was doing." He hit her with his fist. Then he picked a "twelve inch crescent wrench" off the floorboard and started hitting her with it. Nees retreated out the driver-side door of the 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 was coming out the door." Beach again tried to kiss her, and Nees scratched him. This only made Beach madder; he threw her up against the truck and choked her. He reached into the back of the pickup and grabbed a tire iron. He "started hitting her with that, telling her [he] was going to kill her, calling her a bitch, and cussing her." He hit her "anywhere and everywhere [he] could." Nees was "covering her head with her arms and screaming." Nees got away from Beach, and ran to the other side of the 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 had "quit moving," Beach stopped and stood up. He looked at Nees, took a few steps back, and
¶ 38 Beach explained that he then began to dispose of the evidence. He threw the crescent wrench and tire iron into the Poplar River. He then began to look for something to help drag the body over to the river. He found a plastic garbage bag and "tried to put the body in it." He was able to fit Nees's folded legs and torso into the bag, with the bag coming up to under her armpits. Beach held the corners of the bag and dragged the body by the shoulders to the edge of the bank of the river. He pushed the body and bag over the edge of the bank. Beach believed that the plastic bag came off the body when he pushed it over the bank. Beach returned to the pickup, took the pickup keys and Nees's jacket, returned to edge of the river bank, and threw them in the river. Beach then wiped down the inside and outside of the truck with his shirt sleeve to remove fingerprints.
¶ 39 Beach left the scene on foot and went home. On his way, Beach realized that he was covered in blood. He wiped off as much blood as he could from his body, used a lighter to burn his shirt and pants in a nearby railroad boxcar, and disposed of his shoes. Beach returned home in his underwear and washed off the remaining blood with soap and water. He then went to bed.
¶ 40 At the conclusion of this confession, Sergeant Via again advised Beach of his Miranda rights and asked him whether everything Beach told them was the "honest and complete truth." Beach responded: "Yes, sir." When asked if he had been forced by anyone to give the statement or whether he was tricked or forced into giving the statement, he responded: "No, sir."
¶ 41 The next day, January 8, 1983, Sergeant Via went to the jail to talk to Beach about three unsolved Louisiana murders. Beach told Sergeant Via that he had retained a lawyer. Sergeant Via did not ask Beach any further questions. Paul Henry Kidd (Kidd), Beach's Louisiana attorney, subsequently contacted Sergeant Via to request a meeting on January 11, 1983. He wanted to discuss the unsolved Louisiana murders. When Sergeant Via and his commanding officer, Lieutenant Joe Cummings (Lieutenant Cummings), met with Kidd and Beach, Sergeant Via read Kidd and Beach the Miranda rights, and Beach and Kidd signed a waiver form. When questioned about the Louisiana murders, Beach denied any involvement, but mentioned "on two or three occasions during the course of the interview" that he had killed Nees. Beach's admissions were made at different times throughout the interview in the presence of Sergeant Via, Commander Calhoun, Lieutenant Cummings, and Kidd.
¶ 42 Shortly after the January 11 meeting, Kidd approached the Louisiana officers and told them that Beach now wanted to confess to the three unsolved Louisiana homicides. Kidd relayed details of the murders that Beach had supposedly provided. The officers followed up on the information, but could not confirm any of it. On January 20, 1983, they confronted Kidd about the veracity of the information. Kidd acknowledged to the officers that he had convinced Beach to falsely confess to these murders as a strategy to utilize an insanity plea. Kidd had gone so far as to make up an alternative personality for Beach's murderous alter ego, named "Ray Woods." Law enforcement then dropped Beach as a suspect in the Louisiana homicides.
¶ 43 During Beach's 1984 trial, his attorney, Charles "Timer" Moses (Moses), vigorously attacked the reliability of Beach's confession on various fronts. Cross-examining Via, Moses questioned Via about whether Beach had been "psychologically unsound" when he confessed, about obtaining Beach's false confession to the Louisiana murders, and about why he had not recorded the entire January 7 interview. Moses questioned whether Via had fed details of Nees's murder to Beach that provided the substance of the confession, and why Beach had been interviewed for over six hours on January 7. Via answered these questions and denied any wrongdoing. Cross-examining Calhoun, Moses asked if he had played the "bad cop" while Via had played the "good cop." He asked whether Calhoun had threatened to see Beach "fry in the electric chair" if he did not confess. Calhoun denied both. With Deputy Medaries on the stand, Moses elicited
¶ 44 The jury went into deliberations with the clear understanding that determining whether Beach's confession was truthful or was a product of police coercion was a critical issue. The judge specifically charged the jury with determining whether Beach's confession was voluntary and truthful. In their closing arguments, both lawyers argued to the jury that Beach's confession was the crux of the case. The prosecutor, Marc Racicot (Racicot), argued:
Moses likewise focused on the confession, raising questions about the tactics used by the Louisiana police to get the confession and the truthfulness of police officers' testimony at trial:
¶ 45 The jury obviously rejected Beach's conspiracy theory that all of the Louisiana police officers were lying when they testified that Beach voluntarily confessed to Nees's murder on several occasions.
¶ 46 At trial, the State called former Tribal Police Officer Alfred Lizotte (Lizotte) to testify about the scene of the crime. Lizotte was on patrol in Poplar with Sergeant Calvin Red Thunder (Red Thunder) the morning of Nees's murder, and saw a pickup parked by the Poplar Train Bridge at about 4:15 a.m. When the pickup had not moved by 7:00 a.m., the officers decided to investigate. Approaching the pickup, they saw blood and hair on the inside, as well as outside on the passenger side.
¶ 47 Next to both the driver's side and the passenger's side of the pickup there were
¶ 48 Deputy Errol "Red" Wilson (Wilson) of the Roosevelt County Sheriff's Office testified about the evidence in and on the pickup. The inside of the pickup was consistent with Beach's explanation that he attacked Nees inside the pickup with a crescent wrench:
Deputy Wilson also testified that the drag trail leading away from the vehicle had much less blood than at the edge of the bank where Nees's body was pushed over. These details were consistent with Beach's explanation that he had stuffed most of the body into a bag for dragging to the edge of the bank.
¶ 49 Wilson and other officers canvassed homes that were near the crime scene to determine whether anyone had seen or heard anything. Beach's residence was one of the houses close enough to warrant a visit, and Wilson stopped at the house. Wilson spoke with Roberta Clincher, Beach's mother. At trial, following a break in his testimony, Wilson re-took the stand and testified as follows:
¶ 50 Notably, it was Moses who called Joel Sparvier (Sparvier) as a witness. Sparvier
¶ 51 The areas of concentration of the wounds inflicted upon Nees were her head, neck, and hands. The wounds themselves were consistent with being inflicted with two different weapons, consistent with Beach's confession that he had used a crescent wrench and a tire iron. Dr. John Pfaff testified to the following details of his investigation.
¶ 52 On June 16, 1979, Nees's body was retrieved from the Poplar River and transported to Great Falls for an autopsy. Dr. Pfaff, an experienced physician and forensic pathologist,
The autopsy pictures confirmed that all of the major injuries sustained by Nees were to her neck and head area, and to her hands. There were no major injuries to her legs or the trunk of her body. These findings were consistent with Beach's confession that he had hit Nees in the head area with the tools, and were also consistent with his version that he was the sole attacker.
¶ 53 No possible weapons were initially provided to Pfaff and he did not initially make any conclusions as to the murder weapon, but concluded that "blunt force" had caused the injuries. After further investigation had identified possible weapons, police asked Pfaff to determine if a crescent wrench and a 20½ inch-long metal bar could have served as the murder weapons. Pfaff excluded the metal bar as the murder weapon, but opined that some of Nees's wounds could have been inflicted by the wrench. Later, after receiving Beach's confession, police asked Pfaff to consider whether Nees's wounds were consistent with blows from a tire iron. Pfaff concluded that the tire iron could have inflicted the injuries not caused by the wrench: "Neither [weapon] inflicted all of them, but together they could have inflicted all of them." Pfaff further concluded that Nees was already dead when she was put into the river, and that she had not recently had sexual intercourse. All of these findings were consistent with Beach's confession.
¶ 54 Moses called Roosevelt County Sheriff Dean Mahlum (Mahlum) to establish the lack of physical evidence tying Beach to the murder. While a bloody palm print and numerous fingerprints had been taken from the crime scene, and numerous blood samples had been taken from inside and outside the vehicle and from Nees's clothing, none of the prints or blood matched Beach. Mahlum testified that the lack of physical evidence against Beach was not suspicious, opining that sloppy crime scene investigation was the likely cause. From the beginning, there had been a breakdown in leadership in the investigation. Because the murder took place on an Indian reservation, federal, state, and tribal agencies were all involved, with no agency clearly in charge. Consequently, evidence was collected and stored in a haphazard manner, resulting in the contamination of scientific evidence. It was not peculiar that Beach's blood was not present at the scene, Mahlum
¶ 55 In the early 2000s, Centurion Ministries began interviewing people who claimed to know about the murder. In 2007, the Clemency Panel held a three-day hearing on Beach's clemency petition. Also, in 2007, Dateline NBC interviewed several people claiming to have new information that pointed to a "pack of girls" — Sissy Atkinson, Maude Grayhawk, and JoAnn Todd — as Nees's true killers. In 2008, Dateline ran an episode on the murder. On August 1-3, 2011, the District Court heard testimony regarding Beach's claimed new evidence of innocence. All of this evidence was oral testimony.
¶ 56 Judy Grayhawk is the sister-in-law of Maude Grayhawk, one of the group identified as the "pack of girls." She testified that sometime in 2004 she received a phone call from Maude. Maude sounded depressed and admitted to kicking Nees in the head and luring her down to the river. Maude sounded scared and believed she was going to prison. Judy says that Maude called her because Maude wanted Judy's son's help in "running away from an investigator."
¶ 57 Ron Kemp was the Criminal Investigator for the Roosevelt County Attorney's Office from 2003 to 2006. In early 2004, Centurion Ministries contacted the County Attorney's office, claiming to have discovered an eyewitness to the Nees murder. That eyewitness, Calvin Lester, said that on the night of Nees's murder, when he was ten years old, he had gone down to the railroad tracks and witnessed girls kicking someone on the ground. Lester told Kemp that Maude Grayhawk was one of the attackers. Kemp followed up by visiting Maude at her house, and she agreed to meet with Kemp at the Poplar Police Department the next day. Maude appeared as promised the next day, and denied any involvement in killing Nees. She told Kemp that she and four other girls had partied down by the Train Bridge from 9:30 p.m. until 10:00 p.m. the night Nees was murdered. Without more, Kemp found this unhelpful, because the time was at least three hours before the time of Nees's death. Kemp "pushed" Maude about her story, telling her "several times" that he had an eyewitness that implicated her in the murder. Nonetheless, she continued to deny any involvement, and eventually became "upset." Calvin Lester later recanted his story and admitted that he had lied about witnessing the murder and Maude's involvement.
¶ 58 Janice Johnson lives in Poplar and previously worked with Maude Grayhawk at a medical clinic. Sometime between 2005 and 2007, a Centurion Ministries investigator came to talk to Maude. Maude directed Johnson to say she was not in. After the investigator left, Maude told Johnson that she did not want to talk to the investigator because he was investigating the Nees murder and, "My car was down there that night. Those girls had my car."
¶ 59 Richard Holen was 19 at the time of the murder and had been out drinking that night. He left a bar around 2:15 a.m. or 2:30 a.m., driving his vehicle out of Poplar to the west. On the road about one hundred feet ahead of him was Nees's pickup. Holen saw five people in the cab of the truck. The truck turned off the road and headed toward the Train Bridge. Holen continued along the road. Still later that night, Holen drove back by the Train Bridge area, and stated that he saw Nees's truck parked there with another vehicle. They were parked facing
¶ 60 Carl Four Star lives in Wolf Point and worked with Sissy Atkinson, another member of the "pack of girls," at A & S Industries (A & S) in 1985. A & S was an industrial manufacturer of camouflage netting for the U.S. military. Four Star testified that in 1985 he overheard Sissy talking to a co-worker at A & S about the Nees murder. Four Star was standing approximately 20 to 25 feet away at the time. Four Star says that the co-worker was reading a newspaper that reported Beach had been convicted of murder.
¶ 61 The State called Richard McDonald to rebut Four Star's testimony as to the noise level in A & S. Richard McDonald is a retired police officer of the Fort Peck Tribe who worked at A & S in 1983 and again in 1989. He testified that the area where Four Star worked was particularly noisy because of the large ventilation fans that were constantly running to clear out the "terrible smell" that came off the nets being made. He said that when people wanted to talk to each other they had to shout.
¶ 62 Stephanie Eagle Boy grew up in Poplar, and was ten years old at the time of Nees's death. She lived with Joel Sparvier close to the Train Bridge. Her favorite hang-out was "the rock," a place she could sit and overlook the Train Bridge. One night in 1979, Eagle Boy watched two vehicles approach the Train Bridge. At the beginning of her testimony at the 2011 hearing, Eagle Boy could positively identify only one of the vehicles as a truck, but midway through her testimony she was sure that both vehicles were "pickups." Eagle Boy said that the two pickups pulled in together and parked facing the same direction. Then girls got out of the vehicles and there was "horrific screaming" for 10 to 20 minutes. She heard girls yell, "Get her!" and "Kick the bitch!" She also heard another girl say, "Please, don't!" Then it got quiet, and a police car showed up with its lights already on. When it reached the pickups, it shut all of its lights off, and Eagle Boy heard "a little whispering or something." Then one of the pickups drove over to some tall grass and two people got
¶ 63 Eagle Boy could not identify what night in 1979 her memory was of:
Eagle Boy's failure to know if her memories correspond to the night of Nees's murder was confirmed during the State's cross-examination:
¶ 64 Billie Smith and Susan Mohler live in Missoula, and formerly worked with JoAnn Todd, formerly JoAnn Jackson, the final member of the "pack of girls," at an assisted-living facility there. During a cigarette break one day, Smith alleges that JoAnn Todd told her that when she was a teenager "she and a group of girls took another girl by the water and they dragged the girl out of the truck. She was not — she had nothing to do with this, but she was present when it happened." The girl was then killed. Smith asked Todd to repeat the story for another employee, Susan Mohler. While Mohler generally corroborated the story, she stated that Todd never said that she was at the killing, and that Todd insisted "she was not involved." Smith and Mohler came forward after watching Dateline.
¶ 65 Kevin Hall lives in Great Falls and was acquainted with Sissy Atkinson in 2004, during a time he said they both were doing a "fair amount" of pain killers. Hall said he did not like when Sissy would come around because she would get high and "sit and cry about karma all the time to [him]." Sissy told Hall that her former husband had died because of "bad karma" stemming from Sissy's involvement in beating a girl when she was a teenager. Hall testified that Sissy was high every time she brought up the beating, and that she told the story somewhere between five and twenty times. Hall testified that Sissy's story became more detailed with each telling. The first time Sissy brought it up, she merely said that a group of girls had beaten up another girl. But, by the final telling, Sissy had told him that "they" had "lured" the victim down to the river, where they beat her with a "tire tool," and "rolled" her into the river while the girl was unconscious. Hall came forward after watching Dateline and, in 2010, provided Centurion Ministries with a written statement of what Sissy had told him. In the 2010 statement, Hall said that Sissy had told the story many times but had not given any more details than those in the first telling. In other words, Sissy's story never changed: "Sissy brought [the beating] up more than on one occasion, but never provided more detail." The District Court asked Hall to explain the inconsistency between his 2011 testimony and his 2010 statement regarding the details provided by Sissy. Hall offered that he had been off his "meds" for two days in anticipation of providing his testimony. He explained that his medications kept his ammonia levels down, and that high levels of ammonia put him in a "foggy, hazy state" and caused him to have "poor memory."
¶ 67 Former Sheriff Mahlum is now retired and lives in Wolf Point. Mahlum testified in the 1984 trial and at the 2011 postconviction hearing. Mahlum testified that Beach's confession contained details only Nees's killer would know. Nees's wounds were confined primarily to "the skull, the head region and also to the hands, backs of the hands[,]" and this information had not been divulged to the public. Nees's wounds matched Beach's version of the murder as stated in his confession. Further, Mahlum testified that it had not been divulged to the public that Nees had been attacked with at least two different weapons, and Beach had confessed to hitting Nees with a tire iron and a crescent wrench. Mahlum opined from his experience that concentrated injuries such as Nees's indicated "one perpetrator as opposed to a large group of people."
¶ 68 Before overturning Beach's conviction, the District Court was to determine the reliability of Beach's new evidence. Schlup, 513 U.S. at 324, 115 S.Ct. at 865. In doing so, the court was to scrutinize the testimony for internal inconsistencies and inconsistencies with the "pre-existing record." Menefee, 391 F.3d at 172; Pope, ¶ 62; Redcrow, ¶ 37. Finally, if the court found Beach's new evidence reliable, the court was to combine that reliable evidence with the trial evidence and determine if a reasonable jury would find Beach guilty given the hybrid record. The District Court's conclusion that each of Beach's new witnesses provided "credible" evidence of his actual innocence is undermined by the court's failure to probe their testimony for internal inconsistencies with their previous statements and to determine whether "the testimony [could] be sustained in light of the record as a whole." Menefee, 391 F.3d at 165. Indeed, Menefee characterized the similar approach employed by the trial court in that case as "deeply flawed." Menefee, 391 F.3d at 165.
¶ 69 The most troubling of the District Court's findings was that Stephanie Eagle Boy's testimony alone had "surmounted" the clear and convincing evidence standard necessary to establish actual innocence. This finding illustrates the District Court's improper analysis because nothing Eagle Boy said proves anything about Nees's murder. While the District Court gratuitously attributed Eagle Boy's memories to the night Nees was murdered, she twice testified that she could not correlate the screams she heard to the specific night in question. She could only state it occurred sometime during the summer of 1979. Eagle Boy's inability to correlate her memory to the relevant night significantly undermined the value of her testimony, as the Train Bridge area was frequently used for parties and as a hangout. Further, Eagle Boy testified that whatever night she had heard the screams, Joel Sparvier was outside with her and heard the same thing. However, unbeknownst to Eagle Boy, Sparvier had testified at Beach's 1984 trial. Unlike Eagle Boy, Sparvier remembered the specific night Nees was murdered, and stated that the only thing he heard on that night was barking dogs. It is unreasonable to conclude that a reasonable juror would likely credit Eagle Boy's vague testimony over Sparvier's specific memory of the night in question. This is particularly true given the timing of the submission of
¶ 70 Unlike memories that normally fade over time, the memories of Beach's new witnesses have miraculously sharpened in detail over the years. In 2002, Richard Holen did not know the gender of the five occupants he saw in Nees's vehicle. In 2007, he told Dateline and the Clemency Panel that he remembered they were all females. In 2011, a startling new detail emerged — he now remembers that there were four females and one male in the pickup, and the male was sitting in passenger seat next to the door. It is unreasonable to conclude that a reasonable juror would substantially credit Holen's frequently changing testimony.
¶ 71 The same is true about Kevin Hall's testimony that Sissy Atkinson would get high on pain killers with him and recount beating a girl. In 2010, Hall stated that Sissy told him that she and a group of girls beat up a girl. She repeated this story to him somewhere between five and twenty times without providing "more detail." However, in 2011, Hall's story changed and he testified that Sissy instead provided more details with each subsequent telling of the story. This culminated in a final telling in which Sissy said they had "lured" the victim to the river, beat her with a "tire tool," and rolled her into the river. When questioned by the District Court about this substantial change in memory, Hall had no explanation other than he had gone off his "meds" in anticipation of his testimony. Further, the version of "rolling" the "unconscious" victim into the river conflicts with the physical evidence. The victim was not "rolled," but dragged, and the victim was already dead when she was thrown into the river. Hall's testimony does not reliably counter the trial evidence, and it is unreasonable to conclude that a reasonable juror would likely credit the testimony.
¶ 72 Carl Four Star came forward for the first time over 15 years after hearing Sissy Atkinson's comments. His original version did not make mention of Sissy making "kicking motions." He originally said he could hear a pin drop in A & S Industries so he could overhear Sissy's statement from 20 to 25 feet away. At the hearing, he testified that a radio was playing loud enough for people to hear it but not so loud that "it muted everything out."
¶ 73 Calvin Lester recanted his story of seeing girls kicking a girl victim on the ground at the Train Bridge and seeing Maude Grayhawk among the attackers, but before he did so, Investigator Kemp contacted Maude, who agreed to meet Kemp at the Poplar Police Department. During his interview, Kemp pressed Maude to the point of tears, telling her there was an eyewitness who saw her kicking the victim at the scene. Nonetheless, Maude did not change her story that she was not involved in the crime.
¶ 74 Billie Smith and Susan Mohler recall a conversation with JoAnn Todd on a cigarette break about a killing, but Mohler recalls Todd stating that she (Todd) was not involved with the killing.
¶ 75 Finally, as former Sheriff Mahlum highlighted, and as mentioned above, Beach's new theory is inconsistent with the objective evidence of Nees's injuries and the crime scene. Beach offered witnesses who heard statements that a group of girls attacked and kicked Nees. These witnesses include Judy Grayhawk, Carl Four Star, Susan Mohler,
¶ 76 The District Court found Beach's new "testamentary evidence as uniquely objective" as DNA evidence in other cases that proved actual innocence. Based upon our assessment of the evidence, we cannot agree. The Supreme Court has described the kind of evidence necessary to establish actual innocence and overturn a conviction as "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324, 115 S.Ct. at 865. Beach's new evidence — the statements offered by the witnesses in the postconviction hearing — did not provide this kind of reliable evidence.
¶ 77 As he did in the 1984 trial, Beach offers a conspiracy theory involving the four Louisiana police officers (Sergeant Via, Commander Calhoun, Deputy Medaries, and Lieutenant Cummings) who testified that Beach confessed multiple times to killing Nees. Several of these statements by Beach were made with his Louisiana lawyer present. All of the Louisiana officers denied that any 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 denied giving the Louisiana police officers details of the murder scene. Yet, Beach provided a confession eerily consistent with the details of the crime scene and with Nees's wounds, including details that were not divulged to the public. Beach's conspiracy theory is nothing new; it was aggressively pursued by Moses during Beach's 1984 trial. The jury rejected it then, and we do not believe the jury was unreasonable in doing so.
¶ 78 Beach's new evidence — in the form of testimony that is primarily hearsay, internally inconsistent, and inconsistent with evidence presented at Beach's 1984 trial — does not reliably displace the evidence tested at Beach's trial, including his confession. Having concluded that Beach failed to satisfy the first step of providing reliable evidence, we need not proceed to the second step of the analysis. See Menefee, 391 F.3d at 163 (Because the defendant had not presented any new reliable evidence, it was unnecessary to consider the matter further). However, even if Beach's new evidence was deemed to be
¶ 79 The District Court made the mistake, deliberately, of listening to the new evidence, and failing to closely consider the old evidence. Thus, no matter how compelling the District Court found the new evidence to be, it committed error as a matter of law by refusing to consider that evidence together with the evidence presented during the 1984 trial to determine whether its impression of the testimony could be sustained in light of the record as a whole. After a review of all the evidence, we conclude that Beach did not provide reliable evidence of his actual innocence that displaced the trial evidence and thus his conviction. Our conclusion is consistent with the determination made by the unanimous three-member Clemency Panel, which performed an exhaustive inquiry into the case, that Beach's allegations are initially troubling on their face, but lack substance when closely scrutinized. Their comments provide a fitting summary of this matter:
¶ 80 Applying the proper standard of review to the new evidence offered by Beach, we determine he has failed to sustain his burden of demonstrating either a freestanding claim or a gateway claim of "actual innocence." The District Court's order is reversed. Beach's petition for postconviction relief is denied and dismissed.
We concur: BETH BAKER, LAURIE McKINNON, and RICHARD A. SIMONTON, District Court Judge RICHARD A. SIMONTON sitting in place of Chief Justice MIKE McGRATH.
Justice LAURIE McKINNON, concurring.
¶ 81 I believe the Court's Opinion correctly resolves Beach's present appeal under the test we articulated in Beach's prior appeal, Beach v. State, 2009 MT 398, 353 Mont. 411, 220 P.3d 667 (Beach I), and I have thus signed the Opinion. However, in my view, our decision in Beach I confused the law governing postconviction "innocence" claims, and for this reason I would limit Beach I's application to the present case. In future cases, I would instead apply the legal standards and analysis set forth below. As a starting point for this discussion, I review relevant points from Beach's trial.
¶ 82 "[I]n state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant." Herrera v. Collins, 506 U.S. 390, 416,
¶ 83 One of the central issues at trial concerned the validity and truthfulness of Beach's confession to the crime. This was because, as prosecutor Marc Racicot conceded to the jury in closing argument, there was no reliable physical evidence retrieved from the crime scene pointing specifically to Beach as the perpetrator of Kim Nees's death. Moreover, as Racicot also conceded, the investigation had been mismanaged and certain evidence had been contaminated, thus rendering it unusable, due to improper police procedures. For instance, footprints at the crime scene were inconclusive because investigators from five different agencies had walked over the area in the course of collecting evidence, and no record had been kept of the type of shoe each officer was wearing or whether any of them had been barefoot (from wading into the river). A towel containing blood that did not match Nees or Beach had been placed in custody with other evidence, yet it was not known when and where the towel was found. Investigators had found a bloody palm print on the exterior passenger side of the pickup, but they were unable to determine who had left it. Hair evidence also had been mishandled.
¶ 84 Defense counsel, Charles F. "Timer" Moses, emphasized in his closing argument the lack of physical evidence tying Beach to the crime. He focused on law enforcement's careless investigative procedures and mishandling of evidence, and also criticized the prosecution's failure to produce certain evidence at trial. For example, he noted that the prosecution had failed to introduce photographs of the bloody palm print, failed to call an expert to discuss blood typing, failed to provide information about other fingerprints (not belonging to Beach) found at the scene, failed to produce photographs of the blood inside the pickup, failed to explain whether hair samples taken from Beach matched hair found at the scene, failed to produce photographs of the footprints, failed to introduce any testimony that the drag line was consistent with a garbage bag, and failed to explain the significance of the bloody towel. In short, Moses portrayed the State's case as full of holes, riddled with unexplained questions, and devoid of critical evidence.
¶ 85 Given the undisputed shortcomings with the physical evidence, the prosecution relied heavily on Beach's confession. Indeed, Racicot told the jurors that the confession was "the focal point of this whole inquiry." He argued that their decision in the case boiled down to two questions: "Was [the confession] voluntarily made? And is it true?" In this regard, Racicot stated that the jury had to assess the credibility of the four officers (Sergeant Via, Commander Calhoun, Lieutenant Cumming, and Deputy Medaries) who had contact with Beach when he was in custody in Louisiana and who had testified at Beach's trial about his incriminating statements. Racicot acknowledged to the jurors that if they did not believe the officers' testimony — if they found that the officers had testified untruthfully about the circumstances surrounding Beach's confession — then the jurors should find Beach not guilty. But if they believed the officers and found that Beach's confession was voluntary and truthful, then the jurors should find Beach guilty.
¶ 86 Racicot and Moses addressed these questions with the jury in detail. Of particular note, Racicot argued that the confession was true because it included facts that had not been revealed to the public and that even law enforcement officers had not known at the time. Moreover, the confession included intimate and minute details about how the murder occurred, and most of those details were corroborated by independent evidence. For example, the location of blood inside and outside the pickup and the location and nature of the wounds on Nees's body were consistent with Beach's description of repeatedly hitting her with a 12-inch crescent wrench inside the pickup and then a tire iron outside the pickup. There were gouge marks in the ceiling of the pickup and on the steering wheel, which Beach presumably created when, as stated in his confession, he repeatedly struck Nees with the crescent wrench inside the pickup. Nees's father testified that when the police returned his property
¶ 87 Moses, on the other hand, pointed to the absence of corroboration between certain details. For example, Beach had stated that he threw Nees's jacket down by her body, yet no jacket 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 discussed the fact that, prior to Beach's interrogation, the Louisiana officers were in contact with the Roosevelt County Sheriff's Office and received information about the circumstances of Nees's murder. Indeed, Sergeant Via admitted at trial that he had obtained background information from Montana authorities before he questioned Beach "[s]o that ... we would know what he was talking about" during the interview and "so that [we] could ask Mr. Beach the appropriate questions." Moses suggested, however, that Beach was mentally unstable at the time of the interview and could not have given appropriate and voluntary responses to the officers' questioning. Moses implied that, during the five or six hours preceding Beach's recorded statement, the officers confronted Beach with the facts and details supplied by the Roosevelt County Sheriff's Office and intimidated Beach into giving a confession which incorporated those facts and details.
¶ 88 The jury rejected the notion of a conspiracy among Montana and Louisiana law enforcement officials to secure a false confession from Beach. The jury implicitly credited the Louisiana officers' testimony and found that Beach's confession was both voluntary and truthful. The jury returned a verdict of guilty on the charge of deliberate homicide, finding beyond a reasonable doubt that Beach had bludgeoned Nees to death with a crescent wrench and a tire iron on June 16, 1979.
¶ 89 Beach filed a direct appeal to this Court in October 1984, raising five issues: (1) the district court lacked jurisdiction to try him for deliberate homicide; (2) the district court, after granting his first motion to change venue, erred in denying his second motion to change venue; (3) the district court erred in denying his motion to suppress his confession, since the confession was tainted by constitutional violations and procedural irregularities; (4) the district court erred in not giving the jury a particular instruction regarding mental state; and (5) the district court abused its discretion by imposing the maximum possible sentence. Beach did not argue on appeal that the evidence adduced at trial was insufficient to support his conviction of deliberate homicide. This Court affirmed Beach's conviction, concluding that none of the issues he had raised on appeal entitled him to relief. State v. Beach, 217 Mont. 132, 705 P.2d 94 (1985).
¶ 90 Beach filed his first petition for state postconviction relief in October 1995 — more
¶ 91 Beach is now in his second round of postconviction proceedings in state court. He filed his second petition for state postconviction relief on January 18, 2008. This time, he pursued two separate and distinct avenues of relief, which are critical to an understanding of the legal issues presented in this case.
¶ 92 In his first avenue of relief, Beach sought to take advantage of a change in the law. Prior to 1997, a petition for postconviction relief could be filed within five years of the date of the conviction. Section 46-21-102, MCA (1995). Under this provision, Beach had until May 1989 to file a timely postconviction petition. In 1997, the Legislature shortened the filing period to one year from the date that the conviction becomes final. Section 46-21-102(1), MCA (1997). In addition, however, the Legislature enacted a new statutory exception to the deadline, allowing a claim of factual innocence to be brought in a petition filed within one year of discovering the evidence upon which such claim is predicated. Section 46-21-102(2), MCA (1997). Beach invoked § 46-21-102(2), MCA, as authority for bringing a claim of innocence.
¶ 93 In Crosby v. State, 2006 MT 155, 332 Mont. 460, 139 P.3d 832, we adopted a method of analysis for claims brought under § 46-21-102(2), MCA. We first reviewed the "newly discovered evidence" test set forth in State v. Clark, 2005 MT 330, 330 Mont. 8, 125 P.3d 1099. Crosby, ¶¶ 18-19. That test was conceived to address a timely motion for a new trial filed by the defendant under § 46-16-702, MCA, within 30 days following a guilty verdict. See Clark, ¶ 27 n. 3. A motion for a new trial under this statute may be granted "in the interest of justice." Section 46-16-702(1), MCA. To prevail on such a motion grounded on newly discovered evidence, we held that the defendant must show:
Clark, ¶ 34. We deemed it appropriate in Crosby to apply this five-factor test to a timely postconviction petition filed under § 46-21-102(2), MCA. Crosby, ¶¶ 15, 20.
¶ 94 In light of Crosby, Beach based his first avenue of relief on the Clark test. Also, because § 46-21-102(2), MCA, requires a claim of innocence based on newly discovered evidence to be filed within a year of discovering the evidence, Beach limited his analysis under Clark to the evidence he had discovered on and after January 19, 2007. He argued that this evidence established that persons other than Beach caused Nees's death. He requested that his conviction and sentence be vacated and that he be granted a new trial. Beach did not allege any constitutional claims in conjunction with this avenue of relief; he simply argued that his evidentiary showing satisfied Clark and warranted a new trial.
¶ 95 Beach's second avenue of relief, in contrast, did involve constitutional claims.
¶ 96 The Supreme Court and this Court have tied "miscarriage of justice" in the present context to the postconviction petitioner's innocence. Schlup, 513 U.S. at 321, 115 S.Ct. at 864; Redcrow, ¶¶ 33-34; Pope, ¶ 55. This was done "[t]o ensure that the fundamental miscarriage of justice exception would remain `rare' and would only be applied in the `extraordinary case,' while at the same time ensuring that the exception would extend relief to those who were truly deserving." Schlup, 513 U.S. at 321, 115 S.Ct. at 864. As a result, "even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a [postconviction] court to reach the merits of a barred claim." Schlup, 513 U.S. at 316, 115 S.Ct. at 861. In addition to alleging a constitutional violation, the petitioner also must present "new evidence of innocence." Schlup, 513 U.S. at 316, 115 S.Ct. at 861. Restated, he must "supplement[] his constitutional claim with a colorable showing of factual innocence." Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (plurality). A sufficient showing of factual innocence, coupled with an alleged constitutional error in the original trial, warrants application of the miscarriage of justice exception. In essence, the exception functions as "a safety valve for the extraordinary case," Schlup, 513 U.S. at 333, 115 S.Ct. at 870 (O'Connor, J., concurring) (internal quotation marks omitted), where the court is persuaded that "a constitutional violation has probably resulted in the conviction of one who is actually innocent," Schlup, 513 U.S. at 321, 115 S.Ct. at 864 (internal quotation marks omitted). In such a case, the societal interests in finality and conserving judicial resources must yield to the imperative of correcting a fundamentally unjust incarceration. Schlup, 513 U.S. at 320-21, 324, 115 S.Ct. at 864, 865.
¶ 97 Conversely, it is important to be clear that the petitioner's claim of innocence in this situation "does not by itself provide a basis for relief. Instead, his claim for relief depends critically on the validity of his [underlying constitutional] claims." Schlup, 513 U.S. at 315, 115 S.Ct. at 861. An adequate showing of innocence merely entitles the petitioner to receive review of those underlying claims. In this respect, demonstrating innocence is the "gateway" through which the petitioner must pass in order to have his otherwise barred constitutional claims considered on the merits. Schlup, 513 U.S. at 315, 115 S.Ct. at 861. If the petitioner "presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims." Schlup, 513 U.S. at 316, 115 S.Ct. at 861.
¶ 98 Based on Schlup, Beach alleged three constitutional errors in his original trial: (1) the State failed to disclose evidence; (2) the prosecutor misstated facts and referred to nonexistent evidence, thus denying Beach a fair trial; and (3) defense counsel rendered ineffective assistance. He argued that his new evidence of innocence was strong enough to get him through the gateway and have these barred claims reviewed on the merits. In this regard, a court assessing a claim of actual innocence under the miscarriage
¶ 99 It is important to note here that Beach did not raise a freestanding constitutional claim of innocence under Herrera, 506 U.S. 390, 113 S.Ct. 853. A claim of innocence under Schlup — which is what Beach raised — "is procedural, rather than substantive." Schlup, 513 U.S. at 314, 115 S.Ct. at 860. An adequate showing of innocence under Schlup "does not by itself provide a basis for relief"; instead, the petitioner's relief depends critically on the validity of his underlying constitutional claims. Schlup, 513 U.S. at 315, 115 S.Ct. at 861. For Beach, the State's withholding of evidence, the prosecutorial misconduct at trial, and the ineffectiveness of defense counsel are the substantive claims; his showing of innocence is simply the procedural prerequisite for obtaining review of those otherwise barred claims.
¶ 100 In contrast, a substantive or "freestanding" claim of innocence provides a basis for relief by itself. A substantive innocence claim does not allege constitutional violations at trial; to the contrary, it presumes that the underlying proceedings were "entirely fair and error free." Schlup, 513 U.S. at 314, 115 S.Ct. at 860. The theory behind a substantive claim is that, although the trial proceedings were fair and error free, newly discovered evidence shows that the petitioner's conviction is factually incorrect, and his execution or continued imprisonment would thus violate the Constitution. House, 547 U.S. at 554, 126 S.Ct. at 2086; Schlup, 513 U.S. at 313-17, 115 S.Ct. at 860-62; Herrera, 506 U.S. at 404, 417, 113 S.Ct. at 862, 869. Here, as noted, Beach did not claim that his trial was fair and error free. To the contrary, he asserted in his brief that "the new evidence discovered in this case, combined with correcting errors which occurred in the original trial, would result in Mr. Beach's acquittal" under Schlup.
¶ 101 The State moved to dismiss Beach's petition. As to his first avenue of relief, the State contended that Beach could not rely on § 46-21-102(2), MCA, to present his newly discovered evidence because the 1997 Legislature limited the applicability of this provision to convictions that became final after April 24, 1996. See Laws of Montana, 1997, ch. 378, §§ 9(1), 10. Since Beach's conviction became final in 1985,
¶ 102 The District Court dismissed Beach's petition in March 2008. In its one-page order, the court noted that the petition was procedurally and time barred, and that Beach's proffered evidence "does not warrant a finding of actual innocence in support of the fundamental miscarriage of justice exemption [sic] to the time requirements."
¶ 103 Beach appealed to this Court, which issued its decision in November 2009. We agreed with the State that Beach could not proceed under § 46-21-102(2), MCA, because his conviction became final before the statute's effective date. Beach I, ¶¶ 21-22. This conclusion disposed of Beach's first avenue of relief.
¶ 105 This Court previously adopted the "gateway innocence" framework from Schlup as the standard for determining whether a fundamental miscarriage of justice exists. Redcrow, ¶¶ 33-34, 37; Pope, ¶¶ 55-59, 67-69. To pass through the gateway and argue the merits of his underlying constitutional claims, Beach had to show that, in light of new reliable evidence, it is more likely than not that no reasonable juror would have voted to find him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 324, 327, 329, 115 S.Ct. at 865, 867, 868. The District Court, in turn, had to consider all the evidence — Beach's new evidence, as well as the evidence adduced at his 1984 trial — and make a probabilistic determination about what reasonable, properly instructed jurors would do based on the overall record. House, 547 U.S. at 537-38, 126 S.Ct. at 2077.
¶ 106 We did not direct the District Court to apply this well-considered approach, however. Rather, we fashioned a new test composed of elements from Clark, Schlup, and Sawyer and directed the District Court to apply it instead. Beach I, ¶¶ 37-48, 51. Under law-of-the-case principles, the District Court and this Court are constrained to apply the Beach I test to Beach's petition;
¶ 107 First, the Beach I test is based primarily on Clark. See Beach I, ¶¶ 37-38, 47-48. However, Clark did not involve the question whether the fundamental miscarriage of justice exception should be applied to a procedural bar. The five-factor Clark test was conceived to address a timely motion for a new trial under § 46-16-702, MCA. See Clark, ¶ 27 n. 3. The Clark test contemplates a defendant who files a motion for a new trial, based on newly discovered evidence, within 30 days following a guilty verdict. See Clark, ¶ 34; § 46-16-702(2), MCA; see also Br. of Respt. at 3, State v. Clark, http://searchcourts.mt.gov/index.html (Mont. Aug. 4, 2004) (No. 04-282) (reciting that Clark filed his motion for a new trial 30 days after the jury's verdict).
¶ 108 A Clark defendant, therefore, is situated quite differently than a Schlup petitioner. A Clark defendant has only recently been convicted, and new evidence has been discovered since his trial. The new evidence is itself the basis for relief. If the evidence indicates that a new trial would have "a reasonable probability of resulting in a different outcome" (and if the other factors of the
¶ 109 A Schlup petitioner, on the other hand, is years — perhaps decades — beyond the date of his conviction. His time for filing a motion for a new trial under § 46-16-702, MCA, has long passed, as has his time for pursuing a direct appeal. He is even barred from challenging his conviction through postconviction proceedings — unless he shows a fundamental miscarriage of justice. Unlike a Clark defendant's new evidence, which is itself the basis for relief, a Schlup petitioner's new evidence "does not by itself provide a basis for relief"; rather, his claim for relief is premised on constitutional errors in his original trial. Schlup, 513 U.S. at 315, 115 S.Ct. at 861. A Schlup petitioner offers new evidence in order to escape the procedural bar, i.e., "to pass through the gateway and argue the merits of his underlying claims." Schlup, 513 U.S. at 316, 115 S.Ct. at 861. He must show "that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, 513 U.S. at 327, 115 S.Ct. at 867. Only if the Schlup petitioner makes a sufficient showing of innocence and prevails on the merits of his underlying constitutional claim(s) is he then entitled to relief.
¶ 110 Seen in this light, the Clark test is plainly inapposite to a Schlup petitioner, and I believe we were wrong to make Clark the basis of the miscarriage of justice test in Beach I. It is true (see Beach I, ¶ 40) that we deemed it appropriate to apply the Clark factors to a postconviction petition alleging newly discovered evidence in Crosby, ¶ 20, and in State v. Abe, 2001 MT 260, ¶¶ 8-13, 307 Mont. 233, 37 P.3d 77. But in these two cases, we were not concerned with the miscarriage of justice exception, since Crosby and Abe could file their petitions under § 46-21-102(2), MCA. Crosby, ¶ 15; Abe, ¶¶ 6-8. Thus, Crosby and Abe were not authority to apply the Clark test to someone, like Beach, who (1) is not entitled to rely on § 46-21-102(2), MCA, and (2) has presented his newly discovered evidence not as a basis for relief, but as a basis for passing through the actual innocence gateway and arguing the merits of his trial-based constitutional claims.
¶ 111 My second point relates to our discussion of substantive versus procedural claims. We stated that the miscarriage of justice exception "concerns actual, or substantive innocence, rather than legal, or procedural innocence." Beach I, ¶ 31. We also stated that "the `actual innocence' inquiry may involve the interplay of substantive and procedural innocence claims." Beach I, ¶ 43 (emphasis in original). In this connection, we indicated that once a petitioner shows actual innocence sufficient to pass through the procedural gateway, he may then (1) pursue relief for alleged constitutional errors in his original trial or (2) demonstrate his substantive innocence.
¶ 112 It is true that the miscarriage of justice exception is concerned with "actual innocence," as distinct from "legal innocence." This distinction was mentioned in Sawyer, 505 U.S. at 339-40, 112 S.Ct. at 2518-19, and can be traced back to Smith v. Murray, 477 U.S. 527, 537-38, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986). Stated concisely, "`actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623-24, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828
¶ 113 But to say that the exception concerns "substantive innocence, rather than... procedural innocence," Beach I, ¶ 31, is confusing, as is the notion of an "interplay" between substantive and procedural innocence claims, Beach I, ¶¶ 36, 43-45. A claim of innocence, for purposes of the miscarriage of justice exception, "is procedural, rather than substantive." Schlup, 513 U.S. at 314, 115 S.Ct. at 860. It is the mechanism by which the petitioner (if his showing of innocence is sufficient) may obtain review of an otherwise barred allegation of constitutional error in his original trial. A petitioner who shows actual innocence under the procedural/gateway standard has, in effect, established that the miscarriage of justice exception should apply to him and that his trial-based claim should be reviewed on its merits.
¶ 114 A substantive claim of innocence, on the other hand, is an independent avenue of relief apart from the miscarriage of justice exception. Herrera, 506 U.S. at 404-05, 113 S.Ct. at 862-63; Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir.1997) (en banc). The confusion arises because both claims — procedural and substantive — require a showing of "actual innocence" based on new evidence (with the substantive claim requiring "more convincing proof of innocence" than the procedural claim). House, 547 U.S. at 555, 126 S.Ct. at 2087; Carriger, 132 F.3d at 477. But the essential distinction is this: A sufficient showing of actual innocence under a substantive claim is a basis for relief by itself, whereas a sufficient (but lesser) showing of actual innocence under a procedural claim is a basis for escaping a procedural bar on an underlying constitutional claim. Schlup, 513 U.S. at 313-15, 115 S.Ct. at 860-61. A successful substantive claim results in exoneration, whereas a successful procedural claim leads to judicial review of a trial-based constitutional claim which, if meritorious, then results in the grant of a new trial. See Opinion, ¶¶ 13, 14, 16.
¶ 115 My final point concerns the standard of proof. For substantive claims, we stated that "Beach must show by clear and convincing evidence that, but for a procedural error, no reasonable juror would have found him guilty of the offense." Beach I, ¶ 44. For procedural claims, we stated that Beach must satisfy a modified version of the Clark test. Beach I, ¶¶ 45-48. I believe both standards are incorrect.
¶ 116 The "clear and convincing" standard we articulated in Beach I for substantive innocence claims can be traced to Sawyer. In that opinion, the Supreme Court examined the miscarriage of justice exception as applied to a petitioner who claimed that he was "actually innocent of the death penalty." Sawyer had filed a petition seeking review of constitutional claims relating to his sentence, but the claims were procedurally barred. Hence, the issue was what showing he had to make in order to satisfy the miscarriage of justice exception. The Supreme Court held that he "must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty." Sawyer, 505 U.S. at 336, 112 S.Ct. at 2517.
¶ 117 The Supreme Court adopted this standard for a procedural innocence claim related to a petitioner's death sentence, not a substantive innocence claim related to a petitioner's conviction. See Sawyer, 505 U.S. at 347-50, 112 S.Ct. at 2523-25;
Carriger, 132 F.3d at 477-78 (citing Schlup, 513 U.S. at 316, 115 S.Ct. at 861).
¶ 118 Beach I's articulation of the showing required for a substantive innocence claim does not accurately reflect the high standard applicable to such claims. "[A] standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." Schlup, 513 U.S. at 325, 115 S.Ct. at 866 (internal quotation marks omitted). In Carriger, the Ninth Circuit concluded that a petitioner asserting a substantive/freestanding innocence claim "must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." 132 F.3d at 476. The court cited Justice Blackmun's Herrera dissent as the origin of this standard.
Herrera, 506 U.S. at 442-43, 113 S.Ct. at 882-83 (Blackmun, Stevens, & Souter, JJ., dissenting) (citations omitted). Notably, Justice Blackmun rejected the Sawyer standard as ill-suited to the substantive innocence inquiry. Herrera, 506 U.S. at 442 & n. 6, 113 S.Ct. at 882 & n. 6 (Blackmun, Stevens, & Souter, JJ., dissenting).
¶ 119 To summarize this discussion, the Herrera Court contemplated an "extraordinarily high" standard for a freestanding innocence claim. 506 U.S. at 417, 113 S.Ct. at 869. Likewise, the Schlup Court indicated that such a claim would fail unless the petitioner's new evidence "unquestionably establish[es]" his innocence. 513 U.S. at 316-17, 115 S.Ct. at 862. A petitioner raising a substantive claim of innocence concedes that his conviction was the product of a fair and error-free trial. The government has proved his guilt beyond a reasonable doubt, and he has thus been stripped of the presumption of innocence. If successful on his substantive claim, the petitioner is forever exonerated and the State may not retry him (see Opinion, ¶ 13). In light of these considerations, it seems apparent that we understated the appropriate standard of proof for a substantive claim in Beach I, ¶ 44. It is not enough to show (even by clear and convincing evidence) that no reasonable juror would have found the petitioner guilty.
¶ 120 As noted, we adopted a modified version of the Clark test as the framework for analyzing a procedural innocence claim. Beach I, ¶¶ 45-48. For the reasons already discussed, the Clark test was not envisioned to be used as a fundamental miscarriage of justice test, and it should not be applied for that purpose. See ¶¶ 107-110, supra.
¶ 121 As for the specific showing needed to prevail on a procedural/gateway claim, we opined in Beach I that Schlup, Redcrow, and Clark articulate "rough[ly] equivalen[t]" standards, and we thus directed the District Court to apply Schlup and Redcrow as part of Clark's fifth factor. Beach I, ¶¶ 45, 48, 51. I do not agree that the standards from these three cases are equivalent, nor do I agree that they can or should be fused into one.
¶ 122 First, under the fifth factor of Clark, "the evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome." Clark, ¶ 34. Under Schlup, conversely, the petitioner must show that it is "more likely than not" that "no juror, acting reasonably, would have voted to find him guilty." Schlup, 513 U.S. at 327, 329, 115 S.Ct. at 867, 868. We explained in Clark, ¶ 36, that the "reasonable probability" standard is lower than the "more likely than not" standard (albeit, using the terms "probably" and "51 percent or greater chance" in lieu of "more likely than not"). The Supreme Court has made similar observations. Schlup, 513 U.S. at 327 & n. 45, 115 S.Ct. at 867 & n. 45; Schlup, 513 U.S. at 332-33, 115 S.Ct. at 870 (O'Connor, J., concurring). Showing "a reasonable probability of ... a different outcome" is sufficient for granting a new trial to a defendant who files a motion within 30 days after a guilty verdict. But it is wholly insufficient for finding a fundamental miscarriage of justice that would warrant review of procedurally barred constitutional claims asserted years after the conviction.
¶ 123 Second, in Redcrow, we applied the foregoing Schlup standard in our evaluation of the petitioner's claims. Redcrow, ¶ 37. But near the end of that same paragraph, we then stated: "A fundamental miscarriage of justice arises only when a jury could find, in light of new evidence, that the defendant is actually innocent of the crime." Redcrow, ¶ 37. This is the language adopted at ¶¶ 48 and 51 of Beach I. The question at the gateway stage, however, is not whether "a jury could find ... that the defendant is actually innocent." Redcrow, ¶ 37. It is whether "any reasonable juror would have reasonable doubt." House, 547 U.S. at 538, 126 S.Ct. at 2077. The gateway analysis focuses on what reasonable jurors would do, not what a jury could do. See Schlup, 513 U.S. at 330, 115 S.Ct. at 868 (distinguishing the standard governing claims of insufficient evidence — i.e., whether any rational juror could have convicted — from the standard governing Schlup — i.e., whether no reasonable juror would have convicted; the former focuses on "the power" of the trier of fact to reach its conclusion, while the latter focuses on "the likely behavior" of the trier of fact). The quoted language from Redcrow, ¶ 37, is not a correct statement of the law under Schlup's gateway innocence standard.
¶ 124 Of course, in defining "fundamental miscarriage of justice" under Montana law, we are not required to adopt the same approach applied by the Supreme Court in federal habeas cases. Nevertheless, we purported to adopt the Schlup standard in Redcrow and Pope. In so doing, we indicated that "[t]he Supreme Court's definition of fundamental miscarriage of justice comports with" our longstanding recognition of "the importance of applying procedural bars regularly and consistently." Redcrow, ¶ 34. In my view, Schlup's gateway approach is sensible and well-considered, and I would adhere to that approach in cases where a postconviction petitioner seeks to escape a procedural bar and obtain review of otherwise barred constitutional claims. When we inject into the analysis other standards and tests that were created for different purposes, we engender confusion and undermine Schlup's clear analytical framework. For these reasons, I would overrule the Beach I test in its entirety and reaffirm the analytical approach set forth in Schlup.
¶ 125 In sum, a postconviction petitioner who alleges constitutional errors in his original trial, but who is procedurally barred from bringing those claims, must demonstrate a fundamental miscarriage of justice in order to receive review of his claims on the merits. To do so, the petitioner must supplement his constitutional claims with a sufficient showing of factual innocence (as distinct from legal innocence). More specifically, the petitioner must come forward "with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324, 115 S.Ct. at 865. The petitioner must show that, in light of this new evidence, it is more likely than not that no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327, 329, 115 S.Ct. at 867, 868.
¶ 126 The reviewing court, in turn, must examine all the evidence — old and new, incriminating and exculpatory — without regard to whether it would necessarily be admitted under the rules of admissibility that govern at trial.
¶ 127 Distinct from this procedural/gateway innocence framework, a petitioner may seek relief under a substantive/freestanding claim of innocence. There, the petitioner does not allege constitutional errors in his trial; he concedes that the proceedings underlying his conviction and sentence were "entirely fair and error free." Schlup, 513 U.S. at 314, 115 S.Ct. at 860. He instead claims that his conviction is factually incorrect and that his execution or continued imprisonment would thus violate the Constitution. This requires "more convincing proof of innocence" than the gateway innocence standard requires. House, 547 U.S. at 555, 126 S.Ct. at 2087. The petitioner must go beyond raising doubt about his guilt and must establish his innocence affirmatively, and unquestionably, based on reliable new evidence and in light of the proof of his guilt at trial. Schlup, 513 U.S. at 316-17, 115 S.Ct. at 862; Herrera, 506 U.S. at 417-19, 113 S.Ct. at 869-70; Carriger, 132 F.3d at 476.
¶ 128 Finally, the question arises as to how § 46-21-102(2), MCA, is to be applied consistently with the Schlup and Herrera analyses in cases where § 46-21-102(2), MCA, is available to the petitioner. This section states:
Section 46-21-102(2), MCA.
¶ 129 As discussed, we deemed it appropriate in Crosby to apply the Clark test to a timely petition filed under this section. Crosby, ¶¶ 15, 20. In light of the foregoing discussion of "actual innocence" claims, however, I question whether the Clark test is properly suited to analyzing such a petition. Under Clark, the defendant must show:
Clark, ¶ 34. These factors bear on whether a new trial should be granted under § 46-16-702, MCA (the "new trial" statute); § 46-21-102(2), MCA, on the other hand, says nothing about a new trial. The Clark test, moreover, requires only a reasonable probability that a new trial will result in a different outcome; § 46-21-102(2), MCA, conversely, requires the petitioner's evidence to "establish" that he did not engage in the criminal conduct for which he was convicted. The Clark test requires the court to assess the defendant's diligence; § 46-21-102(2), MCA, however, has its own diligence standard: the petition is timely if it is filed within one year of the date on which the conviction became final or
¶ 130 I note that the legislative history of § 46-21-102(2), MCA, while somewhat thin, is consistent with this conclusion. As originally proposed, House Bill 222 (1997) reduced the time limit on filing a petition for postconviction relief to one year, with no exceptions. Opponents of the bill argued that this categorical limitation ignored recent developments in DNA testing and would prevent courts from considering cases in which DNA testing proved unequivocally that the petitioner was innocent. Apparently in response to such objections, the House Judiciary Committee amended House Bill 222 to incorporate the "newly discovered evidence" exception now contained at § 46-21-102(2), MCA.
¶ 131 Based on the statute's language, it appears § 46-21-102(2), MCA, is effectively — though perhaps not intentionally — a codification of the substantive/freestanding claim that the Supreme Court in Herrera (and again in House) only assumed, for the sake of argument, is cognizable under the federal Constitution and that this Court, likewise, has assumed exists but has never actually relied on to grant relief. An obvious difference is the one-year filing deadline in § 46-21-102(2), MCA. Neither the Supreme Court nor this Court specified whether a substantive innocence claim under the Constitution
¶ 132 The Court persuasively explains why Beach's new evidence fails to satisfy the threshold requirement of the foregoing tests — specifically, his evidence is not "reliable." Opinion, ¶¶ 23, 68-78. I agree with that analysis and join it. I also offer the following additional observations as to why Beach's claims must fail.
¶ 133 Under the "extraordinarily high" standard required for a substantive/freestanding claim of innocence, simply pointing the finger at other possible perpetrators — as Beach has attempted to do here, based largely on hearsay — is inadequate. Likewise, attempting to poke holes in one's confession to the crime — as Beach has also attempted here, using the same arguments he made (and the jury rejected) in his 1984 trial — does not establish affirmatively and unquestionably that the petitioner is innocent. There is no DNA or other scientific evidence proving that Beach did not commit the crime. There is no trustworthy alibi evidence establishing that Beach was in another location when the crime occurred. There is no confession, let alone a reliable one, by another individual stating that he or she committed the crime and that Beach did not. The jury in Beach's trial found beyond a reasonable doubt that Beach bludgeoned Nees to death with a crescent wrench and a tire iron.
¶ 134 In conducting our analysis at the gateway stage we must decide, based on all the evidence, whether it is more likely than not that no reasonable juror would have voted to find Beach guilty beyond a reasonable doubt. With that standard in mind, I cannot agree with Beach's contention that his new evidence sufficiently establishes his actual innocence. Beach confessed to the crime. He did not simply say, "I did it." Rather, he provided intimate and minute details of exactly how he committed the crime and then disposed of the evidence. With perhaps one exception (the description of what Nees was wearing that night), the details of his confession were consistent with the crime scene. Opinion, ¶ 29 n.6. Importantly, Beach provided details that investigators previously were unaware of. For instance, he stated that he used a garbage bag when dragging Nees's body to the river, which explained the lack of blood along the drag trail. While Beach posits that the Louisiana officers planted such details of the crime in his head, the transcript of a telephone conversation between Sheriff Mahlum and Sergeant Via reflects that Beach himself provided the details.
¶ 135 Contrary to Beach's insinuations that Mahlum and the Louisiana officers engaged in a conspiracy to coerce him into giving a false confession to a crime he did not commit, there is no evidence substantiating this claim, let alone new evidence that the jury did not already consider when it rejected this theory back in 1984. Furthermore, Beach has never provided a coherent and consistent explanation as to why he — a supposedly innocent man — confessed to brutally murdering Nees. Beach has gone from alleging that Calhoun told him he would "fry in the electric chair" if he did not confess, to claiming that the officers threatened him with homosexual advances, to contending that he sought only to please the officers so he could be returned to Montana, to asserting that he felt helpless after being held incommunicado for several days. Beach even offered the theory that the officers drugged his milkshake while he was being fed before his confession; yet, he also alleged the contrary theory that he had not been fed and was suffering from extreme hunger at the time of his confession. Bottom line: Beach's theories of why he confessed are inconsistent and continually evolving, which serves only to undermine the credibility of all of them. More to the point, Beach has never presented a shred of credible evidence substantiating any of his explanations for giving a supposedly false confession.
¶ 136 The Supreme Court's opinion in House provides insight into the sort of showing necessary to pass through the gateway and obtain review of barred constitutional claims. Not even the DNA evidence calling into question House's involvement in the crime and the "evidentiary disarray" surrounding the blood evidence were enough to overcome the prosecution's evidence against him. House, 547 U.S. at 540-48, 126 S.Ct. at 2078-83. The Supreme Court also considered compelling evidence that another suspect had murdered the victim — in particular, the victim's husband. Two witnesses had provided credible testimony that the husband actually confessed to the crime; two more
¶ 137 Over the last 21 years, Beach has been through one federal habeas proceeding, including an appeal to the Ninth Circuit; two executive clemency proceedings; and two state postconviction proceedings. While he has persistently maintained his innocence throughout these proceedings, he has repeatedly failed to produce any reliable new evidence establishing that fact to the satisfaction of the board or tribunal involved. In its August 20, 2007 decision, the Montana Board of Pardons and Parole aptly observed that, "[u]ltimately, his statement to detectives that he had gone home after the murder and tried to convince himself that he did not do it, chilling as it is, provides what seems to this Board the likeliest explanation of what he is doing still." As the Board further observed, in order to believe Beach's claim that he did not do what his confession says he did, "we would have to believe that every single one of the law enforcement officers was steadfast in lying at the time the confession was taken, through the suppression hearing, through another trip to Montana for the trial, and even now when most have changed careers and one faces a life-threatening health crisis." To adopt such a belief would require a far more persuasive evidentiary showing than Beach has made here.
¶ 138 In conclusion, while I concur in the Court's application of the Beach I analytical framework, I do so only for purposes of this case and Beach's claims that are now before us. For purposes of future cases involving substantive or procedural claims of innocence, I would overrule Beach I and apply the standards that I have detailed above. Lastly, I agree fully with the Court's analysis and conclusion that Beach's new evidence is not reliable and, thus, that Beach's innocence claims must fail. Opinion, ¶¶ 68-78.
¶ 139 I concur.
Justice BETH BAKER, Justice JIM RICE, and District Court Judge RICHARD A. SIMONTON join the Concurrence of Justice LAURIE McKINNON.
Justice BRIAN MORRIS dissents.
¶ 140 This Court determined that Beach could petition for post-conviction relief, even though such relief was otherwise time-barred, if he could produce new evidence of actual innocence. Beach, ¶ 51. We remanded the case to the District Court to conduct an evidentiary hearing. The District Court applied the standards and procedures set forth in Beach. The District Court determined that Beach's witnesses at the hearing offered new evidence that demonstrated Beach's actual innocence and granted Beach a new trial.
¶ 141 We set forth the procedures and standards by which the District Court should evaluate Beach's new evidence in light of his effort to obtain a new post-conviction relief hearing or to be found actually innocent. Beach, ¶ 51. These procedures serve as law of the case. This Court has long recognized that when the Court "states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case." Fiscus v. Beartooth Elec. Coop., 180 Mont. 434, 437, 591 P.2d 196, 197
¶ 142 The District Court found the testimony of each of Beach's witnesses to be credible and believable. The District Court observed the demeanor of each witness presented by Beach. The District Court carefully detailed what it found credible about each witness. The District Court considered the fact that most witnesses had no connection to the town of Poplar, Beach, or Nees, and accordingly, had no motive to lie. The District Court, as the trier of fact, sits in a better position to observe the witnesses and determine credibility than this Court. State v. Finley, 2011 MT 89, ¶ 31, 360 Mont. 173, 252 P.3d 199; Double AA Corp. v. Newland & Co., 273 Mont. 486, 494, 905 P.2d 138, 142 (1995). The District Court has presided over at least 35 criminal trials and has experience gauging the credibility of witnesses. I cannot say from this vantage point that the District Court's determination regarding the witnesses' credibility and believability rises to the level of clearly erroneous. Clark, ¶ 39.
¶ 143 The District Court next weighed the evidence that the State presented at Beach's original trial against Beach's new evidence to determine whether Beach had demonstrated that no reasonable juror would find Beach guilty beyond a reasonable doubt. Beach, ¶ 48, Schlup, 513 U.S. at 331-32, 115 S.Ct. at 869. The Court concludes that the District Court ignored the evidence that the State had presented against Beach in the 1984 trial. ¶ 21. The District Court specifically addressed this concern, however, in its order on the State's motion for stay. The District Court stated, "[i]t is [Beach's] confession that constitutes the entirety of the State's argument. That confession was considered by this court in its Order."
¶ 144 Beach's confession constituted "the focal point of this whole inquiry." Concurring Opinion, ¶ 85. The State conceded at Beach's trial that no reliable physical evidence retrieved from the crime scene tied Beach to the murder. Concurring Opinion, ¶ 83. The District Court's statement that it had compared the evidence at the hearing against Beach's confession indicates that the District Court properly weighed the State's evidence from Beach's 1984 trial against the new evidence presented at the hearing. Beach, ¶ 48; Schlup, 513 U.S. at 331-32, 115 S.Ct. at 869.
¶ 145 The court's weighing of the evidence led it to conclude that no need existed for Beach to have a new post-conviction relief hearing based on the fact that Beach had demonstrated his free standing actual innocence claim by meeting the higher burden of persuasion. Beach, ¶¶ 44-45; Schlup, 513 U.S. at 315, 115 S.Ct. at 861. The District Court concluded, "[n]o reasonable juror, properly instructed, could have combined that testimony [of Ms. Eagle-Boy] with the testimony of Ms. White Eagle-Johnson, Ms. Smith and Ms. Molar and not had reasonable doubt whether Mr. Beach committed the murder." The District Court followed this Court's instructions on remand from Beach, ¶ 51.
¶ 146 This ruling marks what likely will be the final chapter in the saga of Barry Beach. We oversee a criminal justice system that seeks to resolve a defendant's guilt through processes created and administered by humans. Humans, by nature, are fallible and the processes that humans create share this same fallibility. The system requires that we make the final judgment on the District Court's ruling. Justice Jackson, in a different era and a different context, described the United States Supreme Court's role in reviewing the decisions of a state court: "[w]e are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469 (1953) (Jackson, J., concurring). The District Court scrupulously attempted to comply with its mandate from this Court to consider Beach's alleged new evidence. Beach, ¶ 51. I cannot say that the District Court's rulings rise to the level of abuse of discretion, Beach, ¶ 14, and,
Justice PATRICIA COTTER and Justice MICHAEL E. WHEAT join the Dissent of Justice BRIAN MORRIS.
