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HELENA - The Montana Supreme Court on Wednesday ordered a district judge to appoint a new judge to hear Barry Beach's petition for post-conviction relief in a 1979 murder case.

Beach is serving 100 years in prison after being convicted in 1984 of killing 17-year-old Kim Nees of Poplar. He is seeking a new trial, arguing that testimony by others during a 2007 hearing before the state Board of Pardons and Parole connected a group of girls to the killing on the Fort Peck Indian Reservation.

The board called that testimony double and triple hearsay that would not have been admissible in court, and rejected his petition to be pardoned, have his sentenced commuted to time served or allow him the possibility of parole.

In March 2008, District Judge David Cybulski of Wolf Point rejected Beach's request for a hearing based on the testimony before the parole board.

Cybulski said prosecutors had reviewed the evidence and interviewed witnesses and if that had "shown that Beach was truly innocent, the prosecutors would be morally and ethically bound to act to see that justice was done," the judge wrote.

Last November, the Supreme Court sent the case back to Cybulski because his order didn't include the analysis on which he based his decision. The high court ordered a hearing.

Beach asked Cybulski to recuse himself from the case and Cybulski denied that request in January. But in a 4-1 decision, the Supreme Court ordered Cybulski to appoint another judge to hear Beach's petition for post-conviction relief.

Beach's attorney, Peter Camiel, said in an e-mail to The Associated Press Wednesday that "we are awaiting the assignment of a new judge and anxious to finally get into court to pursue Barry's actual innocence claim."

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In January, Camiel said the requested hearing will determine if the testimony given before the Board of Pardons and Parole in 2007 is, in fact, new evidence or was available when Beach was tried.

If the judge finds that the testimony is new evidence, he must hear from those witnesses, along with the state's cross-examination, and decide if there is a reasonable probability that a new jury hearing the case would have reasonable doubt about Beach's guilt. If so, Beach would get a new trial, Camiel has said.

 

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