ST. LOUIS (Legal Newsline) – A law enforcement officer whose investigation led to Donald Nash spending 12 years in jail for a murder Nash says he didn’t do is asking a federal judge to throw out the civil lawsuit against him.
James Folsom, a member of the Missouri State Highway Patrol, filed his motion for summary judgment on May 20 in St. Louis federal court. He faces claims from Nash, who was arrested, detained, prosecuted and convicted of capital murder in the 1982 killing of his live-in girlfriend Judy Spencer.
He was released after 12 years in jail and sued several people, including other Highway Patrol employees Scott Mertens, Dorothy Taylor and Ruth Montgomery. He claims they either manipulated evidence or lied on the stand in Nash’s trial.
On Oct. 18, Judge Jean Hamilton refused to dismiss claims against Folsom and allowed Nash to pursue punitive damages. Now, Folsom is arguing Nash’s “inflammatory rhetoric… crumbles under the weight of the undisputed evidence.”
“In 2008, Nash’s DNA was found under Spencer’s fingernails, and he was convicted in 2009. In habeas proceedings, the Missouri Supreme Court vacated Nash’s conviction in 2020,” Folsom’s motion says.
“The court did not find that Nash was actually innocent. Instead, the court held that certain expert trial testimony regarding the effects of water on DNA under fingernails required that Nash’s conviction be vacated.
“The claims in this lawsuit are based on Nash’s arrest, not his conviction, and probable cause for an arrest is a lower standard than evidence required for a conviction.”
Prosecutorial immunity prevents Nash from suing the defendants, it further argues.
“(T)he decisions made by Folsom and others were clearly discretionary and there is no evidence of intentional misconduct,” it says. “Qualified immunity thus bars the federal claims against Folsom, and official immunity bars the state claims against him.”
In 1982, Nash’s live-in girlfriend Judy Spencer went missing during a night that started with her drinking at a friend’s apartment and included a fight with Nash over whether she should drive. She left alone to visit bars in a nearby town.
But Nash could not locate her that night. She was found the next day by two farmers at an abandoned schoolhouse outside Salem.
Spencer was choked with her own shoelace and shot in the neck with a shotgun. Her car was found in a ditch many miles away.
No physical evidence or eyewitness testimony placed Spencer anywhere near either site. A gunshot residue test was negative, and investigators found fingerprints on the car belonging to a violent sex offender and a man who lived next to the ditch. Nash’s fingerprints were not found in her car.
No arrest was made for more than 25 years, after Spencer’s sister asked the Missouri State Highway Patrol to test Spencer’s fingernails for DNA. Results showed Nash’s DNA, investigators said.
He was charged with capital murder. Prosecutors ignored the fact Spencer was Nash’s live-in girlfriend when explaining the DNA and instead argued Spencer had washed her hair earlier that night, which would have scrubbed her fingernails clean.
Folsom personally drafted and filed a probable cause affidavit that Nash said contained reckless and malicious assertions to obtain an arrest warrant. He allegedly claimed Nash had engaged in suspicious behavior.
Nash was convicted in 2009, but the Missouri Supreme Court set his conviction aside in 2020, thanks to a 217-page report issued by a special master on Nash’s innocence.
When DNA testing on the shoelace did not link Nash to it, the State dismissed its charges. The lawsuit followed on April 28.
The State Legal Expense Fund provides financial support for state officers who face a civil judgment over their official duties. Folsom had argued Nash should have made his claim for compensation to the SLEF, not the federal court.
But Judge Jean Hamilton ruled otherwise earlier this year, noting Nash could be keeping Folsom from pleading official immunity because that only protects officials if they did not act with malice.
Hamilton added the SLEF does not preclude the claim for punitive damages, but Nash’s lawyers successfully argued the SLEF provides funds for “any amount.”