Missouri flag, gavel

Judge Recommends New Trial for Missouri Man Whose Conviction Rested on Recanted Expert Testimony

Written on Monday, July 13th, 2020 by T.C. Kelly
Filed under: Expert Opinions, In the News

Donald Nash was convicted of capital murder in 2009 by a Missouri jury. He was sentenced to 50 years in prison without parole. Since Nash is now 78 years old, Nash was effectively sentenced to life in prison. His life might be shortened by the COVID-19 outbreak in the prison where he is incarcerated.

Nash was charged with killing his former girlfriend, Judy Spencer, in 1982. The charge followed a cold case investigation that purportedly linked Nash’s DNA to the killing.

Nash lost his case on appeal. New attorneys brought a habeas corpus petition alleging that the prosecution relied on untrue expert testimony and that undiscovered DNA points to the guilt of another suspect.

Given the time that passed since Nash’s appeal was denied, Nash must prove his “actual innocence” to win his freedom. The Missouri Supreme Court appointed a retired federal judge, Richard K. Zerr, to take evidence and make a recommendation as to whether Nash satisfied that standard.

In a detailed opinion, Judge Zerr determined that Nash’s conviction was based on junk science. He recommended that the Missouri Supreme Court vacate Nash’s conviction on the ground that he is actually innocent.

Spencer’s Death

Before Spencer died, Nash and Spencer were together in a friend’s apartment. They quarreled. Spencer left, telling the friend that she planned to visit some bars in a neighboring town. Nash remained in the apartment.

Spencer’s body was found the next day at an abandoned schoolhouse far from town. The killer strangled Spencer with her own shoelace and shot her in the neck with a shotgun.

The prosecution offered no evidence that Nash owned or possessed a shotgun. On the same day Spencer’s body was found, the police questioned Nash and tested him for gunshot residue. The test was negative. Nash had no scratches on his body. Nash’s emotional reaction when he learned that Spencer was dead convinced the investigators that he was not involved.

Spencer had a blood alcohol content of 0.18, an indication of significant intoxication at the time of death. Spencer’s car was found in a ditch several miles from her body. Two sets of fingerprints were found on the car’s window. Neither belonged to Nash, but one set of prints belonged to the resident of a dwelling that was near the ditch. That resident denied having any knowledge of Spencer’s car, an obvious lie given the presence of his fingerprints.

Fresh tire tracks were found near the abandoned schoolhouse. They did not match the tires on Nash’s or Spencer’s vehicle. They were never matched to any vehicle.

It is a reasonable theory that Spencer became intoxicated and drove her car into a ditch, where one or more killers found her. It is also reasonable to surmise that the killer or killers drove Spencer, either alive or dead, from the ditch where her car was found to the schoolhouse.

None of the investigators at the time of the murder believed they had probable cause to arrest Nash. Two of those investigators told Judge Zerr that they believed Nash was innocent.

Nash’s Trial

The case languished for 26 years until the Spencer family pressured the Highway Patrol to test Spencer’s fingernails for DNA. Nash’s DNA was found underneath her fingernails. That finding is hardly surprising since Nash and Spencer lived together.

Investigators determined that after Spencer left Nash at their friend’s apartment, she returned to her apartment and washed her hair before leaving again. When they applied for an arrest warrant, the investigators claimed that the DNA beneath Spencer’s fingernails would not have survived the hair washing, proving that Nash had contact with Spencer again that evening.

Judge Zerr concluded that the investigators made that assertion without consulting with an expert. It is patently false that DNA beneath fingernails would necessarily be eliminated by washing hair. The judge essentially concluded that the investigators fabricated that statement to justify an arrest warrant.

At trial, the prosecution’s expert testified that hair washing would have a “great effect” on the amount of Nash’s DNA found beneath her fingernails. She also testified that the amount of DNA present would not have come from “low level” contact with Nash.

Nash called a DNA expert to testify that that Nash’s DNA would logically be found under Spencer’s nails since Nash and Spencer lived together. Nash’s expert discounted the effect of hair washing because, in her experience, DNA trapped beneath fingernails can survive hand washing. The expert also explained that Spencer could have reacquired the DNA by touching a surface or clothing that Nash had also touched.

During his closing argument, the prosecutor boldly asserted that Nash’s DNA would have been washed away when Spencer shampooed her hair and that its presence proved Nash’s guilt. That argument was unsupported by any evidence at trial.

The jury was apparently swayed by the prosecutor’s untrue theory that hair washing eliminates all DNA from beneath fingernails. When Nash appealed his conviction, the state again relied on the theory that hair washing removes DNA and argued that the jury therefore had sufficient proof of guilt to support a conviction. In a rather cursory opinion, the Missouri Supreme Court agreed.

Expert Testimony Reconsidered

Ruth Montgomery was the prosecution’s DNA expert. Montgomery was a Highway Patrol lab analyst. Although she did not say so during her testimony, her “expectation” that the act of hair washing would have a “great effect” on the amount of DNA beneath her fingernails was nothing more than a guess.

Judge Zerr characterized Montgomery as having “no education, training, or experience” in whether washing hair eliminate DNA concentrations beneath fingernails. Montgomery later admitted that her only research consisted of reading a handful of articles the day before she testified in a pretrial deposition.

None of the articles Montgomery reviewed supported her claim that hair washing would have a great effect on the concentration of DNA beneath fingernails. Rather, the articles indicated that DNA persists under fingernails under a variety of conditions. The only article addressing personal hygiene found that it had a statistically insignificant impact on the amount of DNA beneath fingernails.

Montgomery thus made a minimal effort to educate herself about the relevant science and chose to ignore scientific evidence that was unhelpful to the opinion that the prosecution needed her to express. In any event, her claim that hair washing has a great effect on the quantity of DNA under fingernails was not generally accepted by the scientific community in 2008 and was inadmissible under Missouri’s Frye rule. Unfortunately, Nash’s lawyer made no Frye challenge so the jury was permitted to consider the baseless expert testimony.

Montgomery now admits that her opinion was speculative and incorrect. She still maintains that hair washing would remove some DNA from beneath fingernails, but she admits that she has no way to quantify the amount of DNA that would be washed away.

New DNA Evidence

The shoelace used to strangle Spencer was taken from her left shoe. After Nash was convicted, that shoe was tested for DNA. Male DNA was found on the shoe. Nash was excluded as a possible contributor of the DNA, as was the trooper who handled the shoe. Nor was Nash’s DNA found on the shoelace.

In fact, the evidence established that after she left Nash and returned home, Spencer changed her outfit, including her shoes, before leaving again. While male DNA might have been on her shoe before she left, the murderer likely touched the shoe while removing the shoelace. The absence of Nash’s DNA and the presence of another male’s DNA is significant evidence of Nash’s innocence.

Judge’s Recommendation

The judge recognized that Nash’s lawyer was ineffective in failing to seek the exclusion of Montgomery’s testimony under Frye and in failing to cross-examine Montgomery about her lack of qualifications to express an opinion about the removal of DNA trapped beneath fingernails while washing hair. In addition, Nash’s appellate counsel was ineffective in failing to raise the issue.

The judge noted that the prosecutor compounded the problem by claiming in his closing argument that Spencer would have removed all of Nash’s DNA when she washed her hair. Not only was the statement contrary to prevailing scientific theory, it misrepresented Montgomery’s testimony. The state’s appellate lawyer continued to make that misrepresentation in its argument on appeal — a mistake that it now concedes.

Under Missouri’s “actual innocence” standard, a defendant must present reliable new evidence that would likely convince a reasonable jury to return a “not guilty” verdict. Montgomery’s admission that she erred and the discovery of a stranger’s DNA on Spencer’s shoe satisfied the reliable new evidence requirement.

Judge Zerr concluded that the prosecution’s case rested almost entirely on discredited expert testimony. The other evidence against Nash was both weak and consistent with his innocence. Arguing with a girlfriend does not make someone a killer.

The prosecution failed to connect Nash to the scene of the crime or to present evidence that he ever possessed a shotgun. The prosecution also failed to explain why the fingerprints on Spencer’s car window did not point to a different suspect. Those failures contributed to the judge’s decision that no reasonable jury, presented with all of the evidence that is now available, would have voted to convict. Judge Zerr therefore recommended that the Missouri Supreme Court overturn Nash’s conviction and set him free.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.