A motion for an additional count on a writ of habeas corpus, requesting that his innocence be declared or a retrial be granted on new DNA evidence, was filed Thursday for Donald “Doc” Nash, 71 .
Nash was convicted of the 1982 murder of Judy Spencer, his live-in girlfriend, in 2009. The Missouri Supreme Court affirmed Nash’s conviction in 2011. He remains in state prison in Bonne Terre.
Nash is being represented on a pro bono basis by Charles Weiss, a partner working out of the St. Louis office of megafirm Bryan Cave, LLC.
Weiss filed the original amended petition for writ of habeas corpus Oct. 3, 2012 under Rule 15(a)(2) of Federal Rules of Civil Procedure, which states the court “should freely give leave when justice so requires.” This case is currently pending in the courtroom of Eastern District Magistrate Terry Adelman, who wrote in his opinion that the presence of new DNA evidence was compelling, but he did not have the jurisdiction to hear the case. His hands are tied by case law on free-standing claims of innocence, which can be heard by the Missouri Supreme Court, but not on the federal level.
“Petitioner may well be guilty, but the newly discovered DNA evidence, suggests his case, at the very least, deserves further serious consideration,” wrote Adelman.
After a night of drinking, Spencer was found behind the abandoned Old Bethlehem School, her pants and underwear thrown over the fence, her shirt up around her neck. She had been strangled with her own shoelace, and then shot in the neck with a shotgun. There was no evidence of a struggle, just that a body had been drug from near the school, and a large vehicle had been driven away after the fact, according to 1982 investigative reports. Spencer’s car was found abandoned along Highway FF, 20 minutes from where her body was found.
The case was closed with no convictions or arrests, but would be reopened at least three more times.
Former Dent County Sheriff Bob Wofford reopened it in 2007, and it was investigated by sheriff’s deputies Michael Nivens and Steven Lawhead. Nivens’ declaration submitted with the writ states that there were two sets of fingerprints lifted from Spencer’s abandoned car window that belonged to neither Nash nor Spencer, but to Anthony Feldman and John Heyer III.
The case had been previously reopened by Wofford in 1997, with deputy Tim Bell heading the investigation. Bell’s probable cause statement in 1997 stated that the prints had to have been left on the car after 10 p.m. the night of Spencer’s murder, because there was a strong rain storm at that time that would have washed them away before that.
Feldman was a man with a criminal record, including sexual assault, according to a declaration by Bell filed with the writ. Eyewitnesses said they observed Spencer and Feldman together at The Tower Inn a few days before Spencer was murdered, Bell wrote. Feldman was listed as the number one suspect on the highway patrol’s original persons of interest list, according to Bell.
Feldman committed suicide by shooting himself in the stomach with a shotgun in 2008.
Bell stated that Nash’s hands tested negative for gunshot residue after Spencer’s murder, and he was not known to own a firearm.
The other set of prints on Spencer’s car window belonged to Heyer, a former Dent County resident. Deputy Nivens’ affidavit stated that Heyer was also seen as a person of interest.
Heyer lived about 100 yards from where Spencer’s abandoned car was found the night of her murder, deputy Lawhead stated in his declaration filed with the writ. Heyer’s neighbor, Vada Hines, said that immediately after Spencer’s murder, Heyer would come over to her house and listen to her police scanner. Heyer had never spoken to Hines before, according to Lawhead.
Just 17 days after Spencer’s murder, Heyer moved to Illinois, not telling his wife or his employer he was leaving, Nivens stated.
While living in the Chicago area Heyer was arrested and charged with theft. His fingerprints were entered into the AFIS system, and were found to match the previously unknown prints found on Spencer’s car. Two women were also murdered in the area of Heyer’s Illinois residence, according to Lawhead, with the killer’s M.O. matching that of Spencer’s killer. They were strangled with cord or string.
During early investigations, the FBI had completed a profile of the murder, which Heyer matched, and Nash did not, according to Bell’s declaration. The FBI profile stated that the murderer was likely anti-social and unkempt and strangled Spencer as retaliation for rejection, according to Lawhead.
Nivens stated that he and Lawhead believed they had enough evidence to give a probable cause statement against Heyer, but before they could present it, they were told to halt their investigation because Nash was being arrested. Neither deputy said who directed them to halt their investigation.
A Drury University forensics class took on the cold case, and in 2008 pointed highway patrol investigators in Nash’s direction. The deputies who had been investigating the case disagreed with the arrest of Nash.
“In my opinion, the evidence against Heyer and Feldman (is) much more compelling and substantial than any of the evidence against Donald Nash discovered in multiple investigations,” stated Nivens.
Lawhead and Bell agreed, saying that with Nash in jail, there is no real justice for Spencer, who is a HHS graduate.
“I believe (Spencer’s) murderer is still at large,” stated Lawhead.
Nivens, Lawhead and Bell are no longer Dent County deputies.
DNA evidence found under Spencer’s fingernails was used to hand down the life sentence to Nash in 2009.
That DNA evidence was no more than what would be found when two people are living together, according to a report filed April 7 by expert witness for the defense, Moses S. Schanfield, PhD.
“The presence of the DNA of a co-habiting intimate sexual partner such as Mr. Nash under the victim’s fingernails, as occurred in this case, is not evidence of involvement in the victim’s murder and is essentially meaningless,” wrote Schanfield.
The exclusion of that touch DNA is just one piece of evidence Weiss wants the courts to hear. A limited amount of DNA was found on Spencer’s shoe, though not on the shoelace that was used to strangle her.
The shoe was recovered from the crime scene and sent to Bode Technology, a forensic testing facility in Lorton, Va. There was not enough DNA to complete a full profile, according to the affidavit of Sarah Shields, forensic casework analyst, but a partial profile of male DNA was found.
“Donald Nash is excluded as a possible contributor to the partial (DNA) profile obtained from the shoe,” the affidavit stated.
After reviewing the evidence, Weiss stated that he is “absolutely convinced,” that Nash is innocent, and hopes to add him to the number of wrongly convicted persons his firm has exonerated. The case was brought to the firm’s attention by Josh Kezer, who was exonerated with the help of Bryan Cave, LLC after serving 16 years in the Missouri Penitentiary. Kezer was contacted by a member of Nash’s family.