Montana Supreme Court rules to send Barry Beach back to prison

In a 4-3 decision, the Montana Supreme Court today reversed a lower court’s ruling granting Barry Beach, the man convicted in 1984 of a murder he says he didn’t commit, a new trial.

The ruling also tossed out Beach’s post-conviction petition, meaning Beach, who has been free since Dec. 8, 2011, will likely head back to Montana State Prison in Deer Lodge to finish out his 100-year prison sentence.

Beach was convicted in 1984 of the 1979 murder of Poplar teenager Kimberly Nees and sentenced to 100 years in prison.

The sole piece of evidence connecting Beach to the crime was his own confession, which he gave to Louisiana investigators years after the murder. Beach has since maintained that his confession was coerced by aggressive interrogation techniques and that he is innocent of the crime. His lawyers have tried to make the case that a gang of jealous teenage girls were responsible for Nees’ death.

Beach asked the court to determine whether new evidence in the case — which came to light after high-profile newspaper and television accounts of his story made national headlines — merited a new trial.

After an initial District Court ruling denying Beach’s petition for post-conviction relief, the Montana Supreme Court ordered the lower court to take a second look at the case and determine whether new evidence merited a new trial. After a three-day evidentiary hearing in Lewistown in August 2011, Fergus County District Judge E. Wayne Phillips ruled in Beach’s favor, granting him a new trial and freeing him on bail.

Phillips found that the new evidence was not available at Beach’s original trial and was compelling and believable.

Then-Attorney General Steve Bullock, now governor, appealed that decision and asked the Supreme Court to overrule Phillips.

The high court sided with the state in a 93-page ruling written by Justice Jim Rice.

Justice Laurie McKinnon, who was elected to the bench in November 2012 and was just appointed to the panel reviewing Beach’s case in February, wrote a concurring opinion stating Phillips erred when he “deliberately” listened to the new evidence presented at the August 2011 hearing while “failing to closely consider” the evidence presented at Beach’s original trial, namely, his confession.

“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,” McKinnon wrote in the concurring opinion.

McKinnon and Rice were joined by Justice Beth Baker and District Judge Richard Simonton in their ruling.

Justices Brian Morris, Michael Wheat and Patricia Cotter dissented.

Peter Camiel, Beach’s attorney in the case, said the high court’s ruling is surprising because it not only overturns the lower court’s ruling granting Beach a new trial, but throws out Beach’s post-conviction petition entirely.

“I am very very surprised they went as far as they did,” Camiel said. “As a general rule, a trial judges’ conclusions about the credibility and testimony of witnesses is never second guessed by the appellate court. That's what this court has done.”

Camiel said Beach is resigned to the fact that he will likely return to custody while as the legal saga unfolds.

“Barry is taking this latest news in stride,” Camiel said. “He is extremely disappointed but he is not panicking. He takes this stuff better than we do. He understands what's going to happen and he doesn't have any false hopes. He recognizes that's that he’s likely going back to jail.”

Jim McClosky, executive director of New Jersey-based Centurion Ministries, the group which spent more than a decade working to prove Beach’s innocence, said he was stunned by the high court’s latest decision.

“I’m just reeling,” McClosky said late Tuesday. “It’s just a punch in the gut. I can’t believe this is the final decision from the court. This is something we couldn’t imagine was going to happen. We’re all stunned and taken aback by it.”

Beach was reached Tuesday evening at work in Billings and had not yet been taken into custody.

“I’ve only found out five minutes ago,” Beach told The Associated Press. “Honestly right now I don’t even know what it means.”

Attorney General Tim Fox was not available for comment. Fox, who was elected in November, has made no public statements on the Beach case.

His spokesman said the Attorney General’s Office was reviewing the 93-page order and would release more details Wednesday.

“It’s a lengthy ruling. We’re in the process of reviewing it and determining what it means for the case, and for Mr. Beach, and we’ll have more to say tomorrow,” Fox spokesman John Barnes said.

Attorney General intervenes in “false claims” case against former COPP Dave Gallik

Attorney General Tim Fox’s office alerted a Missoula court Thursday that the state will intervene in a lawsuit against former Commissioner of Political Practices Dave Gallik.

Gallik resigned as the state’s top political and ethics watchdog in January 2012 after the Great Falls Tribune reported allegations made by Gallik's former staff members that Gallik, an attorney, was conducting private law practice work out of his state office.

Two months later the Bozeman-based Montana Policy Institute sued Gallik under a state statue called the “False Claims Act,” a law Gallik carried when he served as a Democrat in the House of Representatives in 2005.

Democratic Gov. Steve Bullock, when he was still serving at attorney general, appointed Great Falls attorney Ward "Mick" Taleff to represent state in the case. Last November, Taleff argued on behalf of the state  that the case should be dismissed because the Montana Policy Institute, the plaintiff in the case, lacked standing to bring the lawsuit.

Missoula District Judge John Larson rejected the state’s claim and on April 12 ruled the  lawsuit against Gallik could proceed.

Thursday was the deadline for the current attorney general, Republican Tim Fox, to either intervene in the case or step aside and let MPI continue the litigation against Gallik.

John Barnes, communications director for the Attorney General’s Office, said the state will intervene. The state has 20 days to serve the complaint against Gallik.

“We feel that the claims that are being made against Gallik are serious,” Barnes said. “Given the nature of all of this – this has implications for state employees and state government in general – we feel its best handled by attorneys representing the State of Montana and best handled by the Department of Justice.”

Gallik said it is “odd” that the new attorney general decided to intervene in the case.

“That seems like a reversal of position,” Gallik said.

Gallik maintained  he did nothing wrong while serving as the commissioner of political practices.

“I told everybody that I am going to continue my law practice. I took the job because of the fact that I could continue my law practice. Nothing has changed. The job was a salaried position, I did the job, nothing has changed,” Gallik said.

A committee of top legislative leaders is meeting today to choose candidates to fill the commissioner position. Gallik’s successor, Jim Murry, ended his term last month and the position is now vacant. Senate President Jeff Essmann, House Speaker Mark Blasdel, Senate Minority Leader Jon Sesso, and House Minority Leader Chuck Hunter are interviewing five candidates today and will soon make recommendations to Governor Steve Bullock.

Consider the Source: ALEC scientist says ‘enriching’ the atmosphere with CO2 is good for tomatoes

Editor’s note: Beginning today I’m launching a new feature on the Lowdown called “Consider the Source.” I’ll examine an email or press release or memo and break it down so you know who is behind efforts to influence the press and the public.

In this week’s edition of “Consider the Source” we have an email bulletin from the Arizona-based, ExxonMobil-funded “thinktank,” the Center for the Study of Carbon Dioxide and Global Change,  discussing one of the many “benefits” of excessive carbon dioxide in our atmosphere.

Wouldn’t you know it? There’s a positive side to climate change, and it’s increased resistance to the tomato yellow leaf curl virus, a disease so devastating to the world’s tomato crop that Wikipedia doesn’t even have a page about it.

Here’s the top of the email:

The vast majority of the world’s top climate scientists and economists agree that elevations in greenhouse gas levels the atmosphere are leading to a warming planet, and thus changing climate. The Intergovernmental Panel on Climate Change, of which University of Montana climate scientist  and Nobel Laureate Dr. Steve Running is a member, not only agree that the CO2 is warming the planet, but they think it is likely that human-caused increases in CO2 emissions are contributing to the problem.

I suspect Dr. Running, the author of the “Five Stages of Climate Grief,” would categorize this email from global warming contrarian Craid Idso under Stage 3, bargaining:

When they reach this stage many people (such as self-righteous radio talk show hosts) who used to be very public deniers of global warming begin making statements that warming won"t be all that bad, it might make a place like Montana "more comfortable."

Craig Idso is a member of a prominent family of global warming skeptics. In 2009 Mother Jones dubbed the Idso claim “the von Trapp family of climate change denial.”

Idso’s father, Sherwood Idso, in 1980 published a paper in Science concluding that doubling the planet’s CO2 concentration wouldn’t have a major impact on the global temperature, and thus “we should not be too quick to limit our options in the selection of future energy alternatives.”

Sherwood Idso and his colleagues at Arizona State University's Office of Climatology, which was headed by leading climate change skeptic Robert Balling, received more than $1 million in research funding from oil, coal, and utility interests.

In 1990, Sherwood Idso coauthored a paper with Balling funded by a coal mining company entitled "Greenhouse Cooling."

Craig Idso launched the Center for the Study of Carbon Dioxide and Global Change in 1998. He also worked as the director for environmental science at Peabody Energy, the world’s largest coal company.

Craig Idso has a B.S. in geography from Arizona State University, an M.S. in agronomy from the University of Nebraska – Lincoln, and a Ph.D. in geography from Arizona State University.

Not sure how that qualifies him to be a climate expert, but nonetheless he was a featured speaker at the 2011 American Legislative Exchange Council annual meeting for a workshop titled "Warming Up to Climate Change: The Many Benefits of Increased Atmospheric CO2."

The title was later changed to "Benefit Analysis of CO2."

ALEC is the industry-funded “bill mill” which pumps out pro-industry model legislation which legislators take back to their home states and try to pass into law.

According to the Center for Media and Democracy’s PR Watch, almost 98% of ALEC's funding comes from corporations such as ExxonMobil, corporate foundations such as the Charles G. Koch Charitable Foundation, or trade associations like the pharmaceutical industry's PhRMA and sources other than "legislative dues."

You can find a list of Montana legislators with ties to ALEC here.

Idso is also deeply involved with the Non-Governmental International Panel on Climate Change. The NIPCC, could be considered the anti-IGCC.

On their website you can:

• “Discover the neglected pertinent science”
• “Learn the benefits of atmospheric CO2”
• and “Marvel at the resiliency of the biosphere

The NIPCC, which is sponsored by ALEC member and global warming denying Heartland Institute, is lead by Austrian-born American physicist Dr. Fred Singer. Singer, according to Scientific American, is best known for his denial of the dangers of secondhand smoke, and is tied to the Western Fuels Association, a “a cooperative enterprise operating on a not-for profit basis to provide coal and other services for the generation of electricity by consumer owned utilities.”

Western Fuels Association is also, you guessed it, a corporate sponsor of ALEC.

So before you go off thinking global warming is a good thing because it will make your gardening easier, you should consider the source and who is funding the research.

The world’s largest and most powerful fossil fuel energy companies want you to know their activities are making it easier for you to grow your tomatoes.

You can view the entire e-mail here.