Donald “Doc” Nash may face retrial for Judy Spencer’s 1982 murder in Dent County.
Nash was convicted of Spencer’s murder in 2009 upon a jury returning a guilty verdict for capital murder. That conviction, and Nash’s life sentence, was last month vacated by order of the Supreme Court of Missouri, with it ruling the 2009 trial violated Nash’s constitution right of due process by way of inadmissible testimony being used by the prosecution, mischaracterization of evidence to the jury and Nash suffering ineffective assistance of counsel.
Dent County Prosecuting Attorney Andrew Curley filed a brief July 27 stating the State of Missouri elects to put Nash back on trial for the crime. When reached for comment by The Salem News on Monday, Curley wrote the state intends to conduct additional forensic testing that wasn’t available at the time of Nash’s original 2009 trial.
“The additional investigation may produce further evidence of guilt or innocence,” Curley wrote. “We will follow the evidence and adjust course if necessary.”
The supreme court’s July 3 ruling removed Nash’s conviction and released him from prison, however, the original charge of capital murder remains. Retired Circuit Judge Richard Callahan has been appointed to preside over the reactivated case. Nash has been under house arrest at his Beauford home since being released from state custody July 4.
In its ruling vacating Nash’s conviction, the Supreme Court of Missouri affirms the determination of its appointed special master that a forensic theory used by the prosecution lacks factual foundation. Specifically, the state’s claim that since Spencer was known to have washed her hair after last seeing Nash the day of her death, and hair washing would have removed any preexisting Nash DNA from under her fingernails, the later discovery of Nash’s DNA there is evidence of his guilt.
That theory was stuck down by the state supreme court in its July 3 order, with the special master’s report on the subject concluding no research, study or expert opinion supports the hair washing theory nor is the idea of hair washing removing DNA from under fingernails generally accepted in the scientific community.
Nash’s defense is asking the court to dismiss the capital murder charge given the supreme court’s ruling discrediting the hair washing theory. In a July 17 brief, Nash’s attorney Charles A. Weiss argues the case’s original 2008 probable cause statement used to arrest Nash is now invalid given it relies on the now discredited forensic claims.
“The Supreme Court’s overturning of Nash’s conviction due to the state’s use of false evidence necessarily requires reassessment of whether Nash is being legally detained for this crime,” Weiss writes. “In this respect, an assessment of all the evidence, as explored in-depth by the special master in a 232-page report, reveals that, without the State’s use of false evidence, there is no probable cause to remain in state custody.”
In a response to Weiss’s motion to dismiss, Assistant Attorney General Theodore Bruce writes the 2008 probable cause report is now irrelevant as a past preliminary hearing determined probable cause existed to arrest Nash, and the 2009 trial led to his conviction.
“Although the [Supreme] Court has determined that the same aspects of the DNA evidence presented at the original criminal trial are discredited, this does not mean the DNA evidence is now inconsequential,” Bruce writes. “Indeed, on direct appeal, the supreme court noted the evidentiary value of DNA evidence apart from whether hair washing removes DNA.”
Bruce’s filing states other alleged evidence of Nash’s guilt includes that Nash appeared nervous when told the DNA profile recovered from Spencer’s fingernail was male, Nash and Spencer argued the day of Spencer’s murder and witness accounts Nash was seen driving at a time a police report says Nash claimed he was at home.
In a supplemental July 30 filing, Weiss again argues for dismissal of the murder charge citing the now discredited hair washing theory was the primary evidence presented at Nash’s original preliminary hearing.
“Nash demonstrated that the probable cause affidavit used to arrest Nash relied upon false evidence,” Weiss writes. “The testimony offered by the State during Nash’s preliminary hearing did not cure that error, such as by furnishing other evidence that would support a reliable finding or probable cause. Instead, the State relied upon the same discredited DNA evidence and offered no additional incriminated evidence.”
Spencer and Nash were romantic partners living in Salem at the time of her 1982 murder. She was an employee at Salem Memorial District Hospital while Nash worked in the AMAX lead mine. On March 11, 1982, Spencer was discovered strangled and shot by a shotgun blast to the neck at the old Bethlehem School site in Dent County. Her Oldsmobile sedan was found later that day abandoned on State Route FF approximately 20 miles away. Spencer was only 21 years old when murdered.
After more than 20 years of no arrests for Spencer’s killing, a three-person investigative team with the Missouri State Highway Patrol reopened the case in 2007 so modern DNA testing could be completed on evidence. Traces of Nash’s DNA were subsequently obtained from fingernail samples taken from Spencer after her death. The discovery lacked significance given the two were romantic partners, however, in its probable cause statement to arrest Nash the highway patrol investigators put forward the hair washing theory as evidence to arrest Nash.
During evidentiary hearings ordered by the state supreme court earlier this year, two members of the highway patrol investigative team could not account for how the hair washing theory came to be included in the probable cause statement during taped depositions. The probable cause statement’s author, H. James Folsom, did not testify. Nash’s attorneys said the reason why is Folsom successfully “dodged” two different process servers attempting to present him with a subpoena.
