State high court set aside conviction in light of discredited forensic evidence
by Jessica Shumaker
BridgeTower Media Newswires
ST. LOUIS, MO — In an exceedingly rare move, Dent County’s prosecutor has informed a judge that he intends to retry Donald “Doc” Nash for the 1982 murder of Nash’s girlfriend, Judy Spencer.
That decision is virtually unheard of in cases involving those who, like Nash, have been granted habeas relief from the Missouri Supreme Court, according to an attorney who specializes in post-conviction relief cases.
On July 27, Dent County Prosecuting Attorney Andrew M. Curley filed a notice that he plans on retrying Nash, who until last month had been serving a de facto life sentence for Spencer’s death.
Nash’s attorney, Charles A. Weiss of Bryan Cave Leighton Paisner in St. Louis, said his team was “surprised and stunned” by Curley’s decision to retry the case.
“It’s contrary to the prosecutor’s professional responsibility under Missouri Rule 4-3.8, which prescribes that a prosecutor has an obligation to refrain from prosecuting a charge that he or she knows is not supported by probable cause,” Weiss said.
Nash was convicted in 2009 for Spencer’s death, but he has consistently maintained his innocence. In June, a Supreme Court-appointed special master issued a report recommending that the high court throw out the conviction.
Meanwhile, a spike in COVID-19 cases at the Bonne Terre prison in which Nash was held prompted his attorneys to ask the Supreme Court to order his immediate conditional release. They said Nash, a septuagenarian who has COPD and a heart condition, was at especially high risk of contracting and dying of the disease while in state custody.
On July 3, the Missouri Supreme Court issued an order setting aside Nash’s conviction. In the order, the court concluded that Nash is entitled to habeas relief after finding he met his burden of proof to establish his gateway innocence claim in light of discredited forensic evidence and newly discovered DNA evidence.
The Supreme Court ordered his immediate release from the Missouri Department of Corrections into the custody of the Dent County Jail, where he could then seek pretrial release.
Nash was fully released from custody on his own recognizance on July 4. As a condition of release, he is required to stay at his home in Beaufort.
In the weeks following Nash’s release, Curley has sought the appointment of a special prosecutor, which was denied, and a new judge, which was granted.
The Missouri Supreme Court assigned Judge Richard G. Callahan to the case. Callahan is a senior Cole County circuit judge who previously served as U.S. Attorney for the Eastern District of Missouri.
Curley did not respond to a message seeking comment. His filing stating his intention to proceed to trial is brief and does not lay out a rationale for the decision.
Weiss, however, said there is no probable cause to charge Nash for Spencer’s murder. He noted the Supreme Court itself said the evidence used to convict Nash has been discredited.
“Mr. Curley, by his own admission, knows very little about the case,” Weiss said. “Two weeks ago, he told us he could not find any files about the case in his office. Any retrial would be a gross injustice to Mr. Nash, who is now 78 years old and who has spent the past 12 years in jail for a crime he did not commit.”
In recent weeks, Nash also filed a motion to dismiss the case, which is pending. The state has not responded to his motion.
“We are hopeful that the right thing will be done and the case against Mr. Nash will be dismissed because there is no probable cause to continue to charge Mr. Nash or to retry him,” Weiss said.
Aside from his disappointment after learning he would be retried, Nash is doing well, Weiss said. One concern at the time of his release — that he may have contracted COVID-19 from a cellmate who tested positive for the disease — has not come to pass, and he has since tested negative for the virus, Weiss said.
Kent Gipson, a Kansas City attorney who focuses on post-conviction relief cases but isn’t involved in Nash’s case, said he was surprised to learn of Curley’s decision. Of the several exonerees he’s represented, not one has been retried, he said. That’s usually because in order to win post-conviction relief, “you pretty much have to destroy the state’s case,” Gipson said.
“I don’t see how in the world they can make a case on him now,” he added.
Gipson recalled an instance when a prosecutor planned to retry an exoneree but dropped the charges before the case went to trial.
“I don’t know of any case in the modern era, which for me goes back 30 years or so, where a guy’s been granted a new trial by way of a writ of habeas corpus and they’ve retried him,” he said.
