What are lawyers to make of the story of Donald Nash?
On the one hand, it is the kind of case for which people go to law school. A group of dedicated attorneys, working pro bono, undertakes a years-long effort to free an unjustly convicted man, winning key victories in the state’s highest court and finally securing his release from prison.
On the other, it’s the kind of case that incriminates the justice system itself. Arrested 26 years after the murder of his girlfriend, Nash was convicted on evidence that defies common sense. Expert testimony eventually was shown to be nothing of the sort. Despite the thinness of the conviction and Nash’s consistent claims of innocence, it took eight years of litigation before that conviction was tossed — and even then, he nearly faced trial again.
Missouri Lawyers Media’s 2021 Lawyers of the Year — Charles A. Weiss, Stephen R. Snodgrass and Jonathan B. Potts of Bryan Cave Leighton Paisner — know that contradiction better than anyone. Since 2012, they have spent thousands of uncompensated hours away from their regular practices fighting for Nash in federal and state court.
“As a lawyer who is really interested in the truth and justice, it’s gratifying that courts do get involved and look at these cases seriously,” said Weiss, whose team has now helped to free four wrongfully convicted people.
Potts, a newly minted BCLP partner who has spent essentially his entire career working on Nash’s case, echoed that sentiment.
“In a case like this, the goal isn’t to expose the flaws in the justice system; I think we all know they’re there,” he said. “The goal here is to prove that the justice system has the flexibility to correct itself. At the end of the day, innocence is paramount, and that’s what actually carried the day.”
“Doc” Nash’s nightmare began March 11, 1982, when his live-in girlfriend, Judy Spencer, was found strangled and shot near a vacant school outside of Salem. Nash was questioned at the time, but he wasn’t arrested and charged until 2008, based on trace amounts of his DNA found under clippings of Spencer’s fingernails. He was convicted of Spencer’s murder in 2009 and sentenced to a minimum 50 years in prison before he could seek parole. At the age of 67, it was essentially a life sentence.
After Nash’s conviction was upheld on appeal in 2011, Weiss and Snodgrass came into the case at the urging of Josh Kezer, whose wrongful conviction for the death of a southeast Missouri college student the two attorneys had helped to overturn in 2009. Weiss and Snodgrass, aided by Potts, then an associate fresh out of law school, filed a federal habeas corpus petition on Nash’s behalf in 2012.
“When we looked into this case, it was obvious to us that Donald Nash was innocent, was not involved in this crime,” Weiss said.
The legal team uncovered genetic material belonging to a male other than Nash on Spencer’s shoe, from which the lace had been taken to strangle her. Nonetheless, in 2014, U.S. Magistrate Judge Terry Adelman denied Nash’s habeas claim, citing the “thickets of impediments” that binding precedent presented.
Nonetheless, the judge wrote that the evidence “deserves further serious consideration” and suggested Nash pursue the claim in state court. The 8th U.S. Circuit Court of Appeals reiterated that suggestion when it affirmed the denial in 2015.
Weiss, Snodgrass and Potts filed a habeas claim in St. Francois County, where Nash was serving his sentence. That, too, initially was denied. But in 2019, the Missouri Supreme Court took the unusual step of appointing a judge to hear evidence in the case. It was the turning point.
“Finally the Missouri Supreme Court saw the light and appointed the special master, who also agreed with us,” Snodgrass said. “It finally worked out for the best.”
Most of the physical evidence appeared to point away from Nash. Tire tracks at the crime scene that didn’t match Nash’s car. Two sets of fingerprints on Spencer’s car window, neither of which matched Nash. The absence of gunshot residue on Nash when he was tested after the murder, not to mention that he didn’t own a gun.
The only solid connection between Nash and the crime appeared to be the DNA under Spencer’s nails. Spencer had washed her hair on the night of her murder, and at trial a lab technician testified for the state that such a washing would have had a “great effect” on the amount of Nash’s DNA underneath her fingernails, indicating that the presence of his DNA after the hair-washing meant he came into contact with her later that night.
Ultimately, that theory would not stand up to scrutiny.
“It’s common knowledge that people who live together or even who run around together have one another’s DNA under their fingernails,” Weiss said.
Snodgrass, who took the technician’s deposition, prodded her about the speculative nature her testimony regarding the DNA.
“Even if you’re trying to remove it with a nail brush and soap and water, it’s really very difficult to remove,” Snodgrass said.
The special master, retired St. Charles County Circuit Judge Richard Zerr, agreed in a 222-page report issued last June in which he found the case against Nash was “weak” and “suffers from numerous logical gaps.” On July 3, the Missouri Supreme Court agreed with that assessment and set aside Nash’s conviction. He was released the following day — Independence Day.
“What a symbolic event,” Weiss said at the time.
It marked the first time Nash had been out of custody since 2008, and it may well have saved his life. At 78 and in poor health, he had faced the possibility of contracting COVID-19 behind bars.
“We were terrified that he might not make it in time for the Supreme Court to rule on his case,” Potts said.
The attorneys expected that to be the end of the story. Although the Supreme Court’s order granted Nash a new trial, few prosecutors pursue such cases after the originally successful evidence has been thrown out or discredited. Nonetheless, Dent County Prosecuting Attorney Andrew Curley initially said he would retry Nash. Weiss, Snodgrass and Potts prepared to become trial lawyers for Nash at a trial set for October before a specially appointed judge.
Shortly before that trial was to begin, however, Curley reversed course. In a statement at the time, he said that based on current evidence there was “a reasonable doubt as to whether Donald Nash committed the offense charged in 2008.” Additional state testing had further weakened the case, with the Missouri State Highway Patrol laboratory no longer willing to say that it was Nash’s DNA under the victim’s fingernails.
“They told the judge and told us that they could not ethically move forward with the case,” Weiss said. “The case then was dismissed, and it was over.”
Nash’s victory comes as the justice system faces renewed scrutiny. Besides Nash and Kezer, Weiss and Snodgrass also have helped to free two other men: George Allen in 2012, and David Robinson in 2018. Last year, the Missouri Supreme Court also vacated the murder conviction of Lawrence Callanan, while the Western District Court of Appeals affirmed a ruling vacating a lengthy robbery sentence for Jonathan Irons.
Some prosecutors — notably St. Louis Circuit Attorney Kim Gardner and St. Louis County Prosecutor Wesley Bell — have created “conviction integrity units” that seek to correct unjust cases. Gardner is currently litigating the procedural authority of that effort in the Missouri Supreme Court, as she attempts to reopen the murder conviction of Lamar Johnson.
Though the criminal justice system views convictions with finality, Potts said a better approach is needed to prevent future cases such as Nash’s, or at least to make it easier to raise new claims based on meaningful evidence.
“I think it’s better to approach the court, arms interlocked, and say ‘We think there’s something wrong here,’ instead of having a knife fight every time someone says they’re innocent,” he said.
As for Nash, Weiss said they still check in with their client.
“When we talk to him, he says: ‘You know what I’m doing? I’m sitting on my front porch, rocking in my chair, enjoying life.’”