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Prison for the Innocent


By: Alexa Ely, Volume 102 Staff Member

Since 1989, there have been over 2,120 exonerations with nearly 18,450 years lost in prison by innocent men and women in the United States criminal justice system.[1] Wrongful convictions can stem from mistaken eyewitness identification, false confessions, government misconduct, faulty forensic science, informant testimony, and bad lawyering.[2] Most wrongful convictions include elements of human error, systematic failures to insure proper investigative techniques are being used, and elements of racial bias.[3] Current procedural barriers to introducing new evidence in post-conviction settings have only promulgated the injustice placed upon those who are wrongfully convicted.

This Post will discuss the current circuit split over the meaning of “new reliable evidence” in the context of post-conviction hearings created by the Court of Appeals for the Eighth Circuit case, Nash v. Russell.[4] The Eighth Circuit’s standard disproportionately values finality over truth and presents an insurmountable hurdle for those with legitimate claims of actual innocence. This Post suggests the Supreme Court should define “new reliable evidence” as “newly presented evidence,” not “newly discovered evidence,” to allow actual claims of innocence to pass the procedural gateway to a new hearing for exoneration.


On March 11, 1982, Judy Spencer was found near a farm outside of Salem, Missouri, where she had been strangled by her shoelace and shot in the neck with a shotgun.[5] At the time of the murder, Donald Nash was dating and living with Spencer. Spencer was drinking throughout the day and night before her murder, and because she told Nash she was going to stop drinking, she lied to him about her whereabouts.[6] After learning that Spencer was at her friend Janet’s house instead of out of state like she previously said, Nash drove there and the two got into a verbal fight.[7] After criticism about her appearance by Nash, Spencer washed her hair at Janet’s house, returned to her apartment where the couple fought again.[8] Spencer left alone that night and headed to a bar.[9] Concerned for Spencer’s well-being, Nash searched around town for her, but sadly her body was found the next day.[10] No gunshot residue or indication of a physical altercation was found on Nash the day after Spencer’s death.[11]

For twenty-five years, the case remained unsolved and no physical evidence connected Nash to the crime scene or the murder.[12] In fact, the sheriff’s deputies planned to arrest a different man for the crime.[13] That is until Spencer’s sister urged police to reopen the case in 2007 based on DNA found under Spencer’s fingernails.[14] Nash voluntarily agreed to give DNA and was stunned when the results said he was a match.[15]

A jury convicted Nash of capital murder for the death of Judy Spencer.[16] The Supreme Court of Missouri affirmed the conviction.[17] Nash petitioned for writ of habeas corpus in United States District Court.[18] Nash argued there was insufficient evidence to convict him, his Sixth Amendment right to present a complete defense was violated because the court excluded evidence of an alternative suspect, and further sought to present new evidence.[19] In his amended petition, Nash argued that the following three items of new evidence were not available at trial: (1) DNA found on Spencer’s shoe with an unidentified male profile; (2) a new scientific study on the effects of washing hair to DNA under the fingernails; and (3) an expert report finding that Nash’s DNA under Spencer’s nails was a result of them cohabitating.[20] The district court denied habeas relief, holding that these items were not new evidence but rather had been discussed or existed during the initial trial.[21] Nash appealed.[22]

The Eighth Circuit affirmed the denial of Nash’s second federal habeas corpus petition.[23] The court found Nash failed to present new evidence that was not presented at trial and could not have been discovered with due diligence.[24] Additionally, the court held it is possible for the jury to find that Nash’s DNA under Spencer’s fingernails more compelling than the unidentified male’s DNA on Spencer’s shoes.[25] However, in the last paragraph of the opinion, the court alludes to its view that the evidence in support of Nash’s innocence is compelling and deserves “serious consideration.”[26] The court concludes by pushing the problem and determination onto the Missouri state courts to handle.[27] For the past eight years, Donald Nash remains in prison for a crime he likely did not commit due to the strict “newly discovered evidence” standard the Eighth Circuit adopted.


In 1995, the Supreme Court articulated a two-part test for federal courts to use when evaluating a habeas petitioner’s claim of innocence.[28] The case, Schlup v. Delo, held that: (1) “allegations of constitutional error must be supported with new reliable evidence not available at trial”; and that (2) “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.”[29] Since the test has come into existence, the Court has yet to define what “new reliable evidence” means, leading the circuit courts to debate whether the standard should be “newly discovered” or “newly presented.”

In the absence of a uniform federal standard, the individual circuit courts are free to articulate the Schlup new evidence standard as they see fit; and it is no secret that the Eighth Circuit is the outlier among the differing courts.[30] The Eighth Circuit imposes the most restrictive standard by holding that “evidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence.”[31]

The Second, Fourth, Sixth, Seventh, and Ninth Circuits all impose broader standards of review for new evidence in post-conviction proceedings.[32] They differ from the Eighth in that they look towards whether the evidence was presented to the jury, rather than when the evidence was found or made available.[33] Even the Third Circuit, which falls closest to the Eighth on the “new evidence” spectrum, still provides an exception for evidence that was not discovered at trial due to ineffective assistance of counsel.[34]

For a defendant like Nash, the implications of which circuit he or she is being tried in is pivotal. For example, had Nash’s case occurred in the Second Circuit—a circuit which expressly rejects a due diligence requirement and mandates only that the evidence not previously be heard by the jury—Nash would likely have passed the new evidence gateway standard to at least receive a hearing or new trial on the matter.[35] The DNA found on Spencer’s shoe with an unidentified male profile would fit under newly presented evidence as the jury had not been given this specific identification. Likewise, the scientific study and expert report about the DNA under the fingernails would also fit under this newly presented evidence category. The Sixth Circuit, in Souter v. Jones, explained that expert opinions may change as technology, education, and experience develop and that courts should allow for this new evidence to be heard.[36] In Nash’s case, new findings and developments in technology, from the time of trial to the most recent appeal in 2015, discovered the effects of washing and cohabitating on DNA under fingernails. Had Nash’s case occurred in either the Second, Fourth, Sixth, Seventh, or Ninth Circuit, he would at least have had the opportunity to have his claim of actual innocence heard and likely would not be sitting in jail today.


A broader approach to the new evidence standard is needed to capture legitimate evidence that proves actual innocence. This serves to protect defendant’s individual rights, public confidence in the legitimacy of the criminal justice system, and promotes victim’s interest in finding the true perpetrator. The current inconsistency in how defendants’ new evidence is treated solely based on geographical location must be addressed. The Supreme Court should adopt a reading of “new reliable evidence” articulated in Schlup to mean “newly presented evidence,” not “newly discovered evidence.”

The largest justification for the Eighth Circuit’s restrictive standard comes from the notion of finality. While finality is a legitimate concern to the judiciary, it should not be valued so heavily that it prevents the rare, potentially innocent defendant’s new evidence to be heard.[37] Truth should not be overcome by finality. What purpose is our criminal justice system serving if we expend resources to incarcerate those who are innocent when the true perpetrator is at large posing risks to new victims?[38] The newly presented evidence standard allows for some procedural boundary to protect finality by not allowing defendants to “put a different spin” on evidence previously heard by the jury; yet at the same time it allows for defendants, like Mr. Nash, to have their legitimate new evidence heard by the jury.[39] The Supreme Court should act to define “new reliable evidence” as “newly presented evidence” to minimize further injustice to the innocent.

  1. Nat’l Registry of Exonerations, Pages/detaillist.aspx (last visited Nov. 7, 2017).
  2. See Causes and Remedies, Innocence Project of Minn., (last visited Nov. 7, 2017).
  3. See Laurel Freemyer, Does Actual Innocence Actually Matter? Why the Schlup Actual Innocence Gateway Requires Newly Presented, Reliable Evidence, 50 Creighton L. Rev. 367, 367–68 (2017).
  4. Nash v. Russell, 807 F.3d 892 (8th Cir. 2015).
  5. Nash v. Russell, 339 S.W.3d 500, 504 (Mo. 2011) (en banc).
  6. Nash, 339 S.W.3d at 504.
  7. Id. It is said that after Nash and Spencer’s verbal fight, Spencer told her friend Janet that Nash said, “This is the last time you’ll ever lie to me, bitch.” Id. Nash later explained that he was insinuating that he was going to break up with her, not that he was going commit this horrific crime against her. Missouri Man Convicted of Killing Girlfriend in 1982 Enlists Help of Deputies to Aid Appeal, Fox News (Feb. 14, 2015),
  8. Nash, 339 S.W.3d at 504.
  9. The defense believes this is where she encountered the alternative suspect who was responsible for the crime. Missouri Man Convicted, supra note 7.
  10. Nash, 339 S.W.3d at 505.
  11. Id.
  12. Missouri Man Convicted, supra note 7 (according to former Dent county prosecutor William Seay, “‘[w]e didn’t have anything to put Doc [Nash] at the scene, or near the scene, or in contact with her for any time period immediately before’ Spencer was killed”).
  13. The alternative suspect’s fingerprints were found on Spencer’s car. This man had a violent criminal history, carried a shotgun, and three witnesses reported seeing him at a bar with Spencer the night she died. This man committed suicide in 2008 using a shotgun. Missouri Man Convicted, supra note 7.
  14. During the initial years of the investigation, no blood or tissue was found under Spencer’s fingernails. Nash’s DNA was only found on the left hand. Nash, 339 S.W.3d at 505.
  15. Id.
  16. Id. at 503.
  17. Id. at 504.
  18. See 28 U.S.C. § 2254 (1996).
  19. Nash v. Russell, No. 4:12CV1783 TIA, 2015 WL 476054, at *1 (E.D. Mo. Feb. 4, 2015), aff’d, 807 F.3d 892 (8th Cir. 2015), cert. denied, 136 S. Ct. 1825 (2016); see also U.S. Const. Amend. VI (articulating a Compulsory Process Clause which guarantees criminal defendants meaningful opportunity to present a complete defense).
  20. Nash, 807 F.3d at 896.
  21. Nash, 2015 WL 476054, at *12.
  22. Nash, 807 F.3d at 894.
  23. Id.
  24. Id. at 899.
  25. Id.
  26. Id.
  27. “After careful review of the record, we conclude that Nash has not established grounds for federal habeas relief. However, . . . the newly presented evidence in this case deserves ‘serious consideration’ in the state courts. . . . We suggest, without weighing in on the merits, that the state court would be a more appropriate forum for Nash’s claims.” Id.
  28. See Schlup v. Delo, 513 U.S. 298 (1995).
  29. Schlup, 513 U.S. at 324–28.
  30. See Brief for The Innocence Network as Amicus Curiae Supporting Petitioner at 6, Nash v. Russell, 136 S. Ct. 1825 (2016) (No.15-8129).
  31. Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997).
  32. Brief for the Innocence Network, supra note 30, at 6–11.
  33. Id. at 2–3.
  34. Houck v. Stickman, 625 F.3d 88, 94 (3d Cir. 2010).
  35. Rivas v. Fischer, 678 F.3d 514, 543 (2d Cir. 2012).
  36. Souter v. Jones, 395 F.3d 577, 592–93 (6th Cir. 2005).
  37. See Perry L. Moriearty, Implementing Proportionality, 50 U.C.D. L. Rev. 961, 1021–22 (2017).
  38. Id. at 1021.
  39. Gomez v. Jaimet, 350 F.3d 673, 680 (7th Cir. 2003).