NASH REPORT: Prosecution’s theory lacks factual foundation, judge writes

In his report to the state supreme court, Zerr specifically questions the use of a hair-washing theory used to prosecute Nash and concludes it lacks factual foundation. Consequently, Zerr recommends the conviction be vacated due to Nash being denied due process, use of inadmissible testimony by the prosecution, mischaracterizations of evidence to the jury and Nash suffering ineffective assistance of counsel.

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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 a theory that since Spencer was known to have washed her hair after Nash says he last saw her the night of her murder, and trace amounts of Nash’s DNA were later recovered from under Spencer’s fingernails, he must be lying as to when he last saw her because hair washing would have removed Nash’s DNA from under Spencer’s fingernails.

Based on that hair-washing theory, Nash was arrested and charged with Spencer’s murder. A jury in Rolla then found Nash guilty of the crime in 2009, with the recovered fingernail DNA and the hair-washing theory used as the prosecution’s only physical evidence. Nash was sentenced to life imprisonment without the possibility of parole for 50 years. Since his conviction, Nash has maintained his innocence while imprisoned in Bonne Terre’s state prison. Nash’s St. Louis-based legal team asserts that new evidence casts doubt on his guilt and filed its habeas corpus petition with the state supreme court requesting he be freed.

In his recommendation to vacate the sentence, Judge Zerr cites the state’s own admission in recent filings that no research, study or expert opinion supports the hair-washing theory used to convict Nash. Nor is the idea that hair washing removes DNA from under fingernails generally accepted in the scientific community.

Zerr cites the first appearance of the state’s hair-washing theory is within the probable cause statement drafted by the highway patrol investigative team’s leader, Sgt. H. James Folsom. Zerr describes this inclusion of the hair-washing theory as a “false statement” within the document given it came with no scientific or expert backing.

During evidentiary hearings ordered by the state supreme court earlier this year, two other 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 used to arrest Nash. Folsom himself did not testify during the hearings. Nash’s attorneys said the reason why is Folsom successfully “dodged” two different process servers attempting to present him with a subpoena.

During Nash’s 2009 trial, the probable cause statement’s hair-washing theory was put forward to the jury by the state and supported in part by expert witness Ruth Montgomery, who at the time testified hair washing would have “great effect” on removing DNA from under fingernails. Montgomery, a Criminologist Supervisor with the Missouri State Highway Patrol’s crime lab, has since retracted this assertion and during the recent evidentiary hearings testified that hair washing would instead have “greater than no effect” on removing DNA from under fingernails.

In his report, Zerr concludes that Montgomery’s testimony is without factual foundation. Zerr cites the state’s own admission that Montgomery has not performed any relevant research into the forensics of hair washing removing DNA, she has not received any special training to know and is unaware of any studies specifically into the topic. Zerr cites no such studies are known to exist within the scientific community and no other criminal case in United States history has prosecuted a defendant through a similar hair washing theory.

“As Montgomery’s lack of qualifications reveal, Montgomery was not an expert in this area,” Zerr writes. “At any new trial, upon proper objection, Montgomery would not be allowed to testify regarding these matters concerning the effect of hair washing.”

As to her original “great effect” trial testimony, Zerr writes, “The State admits it was incorrect. Montgomery, the expert who invented the theory, admits that it was incorrect. Nash advises that one could not argue that justice has been served when erroneous ‘science’ – which boils down to a single unqualified witness’s disavowed opinion – was the linchpin evidence used to convict him of capital murder.”

Zerr adds the case’s prosecutor, Assistant Attorney General Theodore Bruce, further inappropriately mischaracterized Montgomery’s testimony in his closing argument by stating she told the jury any DNA would be removed from under Spencer’s fingernails by hair washing.

“In short, the prosecution embellished the central theory used to try Nash for capital murder to make the State’s case sound far better than it actually was,” Zerr writes.

Overall, Zerr describes this prosecutorial conduct by the state as exemplifying tunnel vision.

“After the State obtained the fingernail DNA sample, the State began to retrofit information to justify its case,” Zerr writes. “From the beginning, in the absence of eyewitness or meaningful physical evidence, the State’s case has demanded that jurors engage in countless strained inferences. Namely, the State asks jurors to infer that because 2.5 nanograms of Nash’s DNA remained underneath Spencer’s fingernails after Spencer washed her hair, and because Spencer’s car was found abandoned on the side of the road, ‘therefore’ Nash somehow found a shotgun and used his pickup to drive Spencer’s car off the road to abduct her and take her to the abandoned schoolhouse where he brutally murdered her. Inferences like this stretch any notion of credulity and are simply unsupported by any particular piece of evidence.”

Zerr further asserts, “The erroneous understanding of the fingernail DNA began with the probable cause statement and carried through during Montgomery’s testimony, the prosecution’s closing statement, and the State’s brief on direct appeal. This not only strengthens Nash’s longstanding allegations of innocence, but weakens the State’s tenuous case against him.”

Zerr writes without the hair-washing theory and any significance granted to the recovered fingernail DNA, there is no evidence of Nash’s guilt which would lead a reasonable juror to convict him. He states the relevant circumstantial evidence put forward by the state is “weak” and includes an allegation Nash appeared nervous when giving a DNA sample to law enforcement and what the judge calls a “double hearsay” statement that Nash threatened Spencer the night of her murder.

Zerr writes the case file also includes evidence which may be exculpatory for Nash. In addition to the lack of physical evidence, that includes a lack of eyewitnesses tying Nash to the crime scene, no evidence Nash ever owned a shotgun, Nash testing negative for gunshot residue immediately after Spencer’s murder, no scratches or other signs indicating Nash had been involved in a physical struggle, crime scene tire marks not matching Nash’s or Spencer’s vehicle and the questionable ability of Nash to fulfill the state’s timeline to complete every alleged action needed for him to have murdered Spencer the night of her death.

Zerr writes other evidence excluded from the 2009 trial implicates another person and should have been presented to the jury. Named as an alternative suspect is Lambert Anthony Feldman III, whose fingerprint was found on Spencer’s abandoned car. In 1982, Feldman was a college student in Rolla who witnesses claim was seen with Spencer in the weeks before her death and who was alleged to keep a shotgun in his car. Feldman also carried a lengthy criminal history of alleged sex crimes and violence before his suicide by a self-inflicted gunshot blast in Quincy, Illinois.

Zerr writes that new physical evidence presented by Nash’s counsel is also compelling and should be investigated. Specifically, that an unknown male’s DNA has been recovered from a shoe Spencer was wearing when murdered, and recovered from the crime scene after being discarded from her body. Nash’s DNA has been ruled out as matching this DNA profile, as has the highway patrol trooper who recovered the evidence.

“This previously unavailable DNA evidence would weigh heavily in the mind of a juror considering reasonable doubt,” Zerr writes. “This is male DNA taken from an item at the crime scene that Spencer’s killer must have touched. It is the only male DNA found anywhere on the victim’s clothing.”

Zerr later continues, “In an already weak case, the DNA found on Spencer’s shoe could easily tip the balance in favor of Nash’s acquittal for a reasonable juror.”