BILLINGS — A Montana man accused of sexually propositioning a 12-year-old girl two months after he got clemency for a 1979 murder would not have to be convicted or even charged with a new crime for authorities to revoke his probation, according to legal experts and state officials.
The accusation against Barry Beach has been under review by prosecutors and state officials. There have been no charges in the case or any proceedings begun against him.
Beach accuser Daile Claire Kindness filed a report with Billings police in January alleging he made sexual advances on her daughter.
Yet prosecutors also must weigh the credibility of Kindness, currently on probation following a 2012 conviction for felony child endangerment, said University of Montana Law School Professor Andrew King-Ries.
“They’ll look at all the facts and say, ‘Is this woman credible,'” King-Ries said of prosecutors. “They have a fair amount of discretion over how to proceed.”
Beach was placed on probation for ten years as a condition of the clemency granted him by Montana Gov. Steve Bullock last November. He was convicted in 1983 for killing Kimberly Nees of Poplar when both were 17, but had long denied any involvement.
His campaign to be released picked up support from former and current elected officials including former U.S. Sen. Jon Tester, the late Republican U.S. Sen. Conrad Burns and Billings Mayor Tom Hanel.
Because of his probationary status, the state’s burden of proof in any proceedings against Beach would be much lower than in a criminal case. Beach declined to comment on the accusation Tuesday but previously told The AP that “it’s wrong what’s being done here.”
Kindness said she’s never met Beach, but was familiar with his case through news reports and had been sympathetic to his decades-long drive to be freed.
She said her daughter and three other children were removed from her care in 2008, two years before she was charged in state court in Big Horn County for incest involving her son. The daughter does not share a name with Kindness. The charge was later downgraded to felony child endangerment and Kindness says no incest ever occurred.
She also has several criminal convictions from the 1990s in Utah, including attempted theft, assault by a prisoner, driving under the influence and taunting or teasing a police service animal, according to court records.
Kindness doesn’t dispute her criminal record but said it has no bearing on the complaint against Beach.
“That has nothing to do with what Barry Beach did to my daughter,” she said, adding that her daughter was still recovering emotionally from being molested earlier in her life. “It’s not about me, it’s about my daughter.”
Kindness says her daughter was picked up by Beach in his vehicle late at night on Jan. 10 along a road in Billings, after the girl ran away from a center for troubled youth.
She told police he asked the girl if he could touch her and if she liked performing a sex act. The girl told him no, according to the report, and Beach later dropped her off about a half block from her house, Kindness told The Associated Press.
After the January accusation was revealed by the Bozeman Daily Chronicle, Montana Department of Corrections Director Mike Batista on June 27 asked Yellowstone County Attorney Scott Twito for his legal opinion on whether grounds exist for revocation proceedings against Beach.
Twito has responded to the request, according to corrections department spokeswoman Judy Beck, but she declined to reveal any details of that response, saying the criminal investigation was ongoing.
Twito declined to comment.
City Attorney Brent Brooks said Billings police have received no other criminal offense complaints against Beach since he was freed last year.
Even without charges or a conviction against Beach, Montana law allows prosecutors to take action against him if investigators find evidence that he’s violated the conditions of his probation, Beck said.
A final determination would be up to a judge. Potential sanctions could range from stiffer probation conditions or jail time, to a return to prison for Beach to serve out the remainder of his 100-year original sentence, said King-Ries.
He added that last year’s widely-publicized clemency for Beach and the nature of the latest allegation against has put the matter squarely in the public eye.
“It’s hard to withhold judgment. Those are very powerful accusations to make, but (prosecutors) just have to work through it,” he said.