State v. Nash

• Decision Date: 22 January 2013
• Citation: 212 N.J. 518,58 A.3d 705
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. Askia NASH, Defendant–Appellant.
• Court: New Jersey Supreme Court

212 N.J. 518

58 A.3d 705

STATE of New Jersey, Plaintiff–Respondent,

v.Askia NASH, Defendant–Appellant.

Supreme Court of New Jersey.

Argued Oct. 23, 2012.

Decided Jan. 22, 2013.

Adam W. Toraya, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Barbara A. Rosenkrans, Special Deputy Attorney General/Assistant County Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney).

Justice ALBIN delivered the opinion of the Court.

Our rules governing post-conviction relief are the last line of defense against a miscarriage of justice. In this case, we must determine whether a middle-school librarian convicted of aggravated sexual assault and endangering the welfare of a child is entitled to a new trial because exculpatory evidence—unknown to both the prosecutor and defense attorney—was not disclosed to the jury.

At a trial in 2002, J.B., a special-education student, testified that on three unspecified dates between 1999 and October 2000 when he was about twelve years old, defendant Askia Nash sexually assaulted him in the school bathroom. Nash not only denied the charge, but also insisted that he could not have committed the crime because an aide escorted J.B. around the school at all times. In rebuttal, the State called the school principal who testified that J.B. was not assigned a “personal” aide. That testimony undermined the main pillar of the defense and marked Nash as a liar. Nash was convicted of sexually assaulting J.B. and of endangering the welfare of another student who stated that the librarian had inappropriately touched his shoulders and buttocks.

In 2002 and 2005, Nash presented to the trial court newly discovered evidence—sworn or certified statements of school officialsattesting that J.B. was assigned a “classroom” aide who accompanied him throughout the day. Those statements, including one by the principal himself, directly contradicted the thrust of the principal's trial testimony. The trial court denied Nash relief without conducting an evidentiary hearing on the claim of newly discovered evidence.

No appellate court has ever determined whether Nash is entitled to a new trial based on the newly discovered evidence mentioned above—not even in the present case where the issue was squarely raised in post-conviction-relief (PCR) proceedings. At a PCR hearing, J.B.'s classroom aide and special-education classroom teacher both testified, accounting for almost all of J.B.'s time during the day. If believed, their testimony strongly indicates that J.B. was never left alone in the bathroom and therefore Nash could not have committed the offense. The PCR court rejected Nash's ineffective-assistance-of-counsel and prosecutorial-misconduct arguments. It also rejected his newly discovered evidence argument on procedural grounds.

The Appellate Division affirmed the denial of relief based on ineffective assistance of counsel and prosecutorial misconduct. It did not address the newly discovered evidence issue. Indeed, neither the PCR court nor Appellate Division determined on the merits whether Nash was entitled to a new trial based on newly discovered evidence.

We now hold that evidence that J.B. was assigned an aide who accompanied him throughout most of the day—evidence not disclosed to the jury—is newly discovered evidence as defined by our jurisprudence. That evidence not only buttresses Nash's defense against J.B.'s charges, but also supports Nash's overall credibility, which was undermined by the principal's misleading trial testimony. We conclude that had that evidence been presented to the jury, the outcome of the case probably would have been different. Because the integrity of the verdict has been cast in doubt, a new trial must be ordered on all charges.

I.

Between 1995 and 2000, Nash was a licensed librarian and educational media specialist at the Morton Street Middle School in Newark. Nash taught a class of twenty-five to thirty students. Two special-education students in his class in October 2000 were J.B. and K.L., both twelve years old. The two students accused Nash of sexually abusing them.¹

After a four-day jury trial in May 2002, Nash was convicted of two counts of first-degree aggravated sexual assault of J.B., N.J.S.A. 2C:14–2(a)(1); two counts of second-degree endangering the welfare of a child, J.B., N.J.S.A. 2C:24–4; one count of third-degree terroristic threats against J.B., N.J.S.A. 2C:12–3; and one count of second-degree endangering the welfare of a child, K.L., N.J.S.A. 2C:24–4.²

In large measure, the State's case turned on discrediting Nash's testimony that an aide accompanied J.B. during the school day. The State accomplished that objective by presenting the school's principal who testified that J.B. was not assigned a personal aide. The principal's testimony not only destroyed Nash's credibility, but also allowed the jury to believe that Nash had the opportunity to sexually assault J.B. in the school's bathroom. However, ten years after Nash's trial, it is all but indisputable that the principal's testimony was in error—that, in fact, J.B. was assigned a full-time aide during the period in question.

We begin with the trial testimony, which led to Nash's conviction.

Testimony at Nash's Criminal Trial

J.B. testified that after he found a twenty-dollar bill, he agreed to loan Nash the money. Nash later repaid J.B. five dollars and told J.B. to meet him in the bathroom. According to J.B., while in the bathroom, Nash asked him to pull down his pants and then “put his finger inside [J.B.'s] butt.” J.B. stated that similar incidents occurred two more times and that on one of the occasions J.B. was directed to touch Nash's penis. All three incidents happened on unspecified dates sometime between 1999 and October 2000. Not until October 2000 did J.B. tell his mother about the sexual assaults. He explained that he did not come forward sooner because Nash had threatened “to get [his] mom” if he reported the abuse. However, he did complain to his mother months earlier about pain in his rectal area.

J.B.'s mother testified that she took her son to Beth Israel Hospital after he told her about the sexual abuse. At the hospital, Dr. Gloria Jacome examined J.B. Dr. Jacome testified that J.B. had a rectal fissure, redness in the rectal area, and a “rectal sphincter tone [that] was easily dilated.” Dr. Jacome learned not only about the nature of the abuse allegations but also that J.B. had suffered from a recent bout of constipation. Dr. Jacome gave alternative causes for the conditions in J.B.'s rectal area—constipation or trauma from a sexual assault. Although sexual abuse was consistent with the conditions she observed, Dr. Jacome could not conclude that it was the cause.

K.L. testified that, on one occasion when Nash kept him after class to stock books in the library, Nash rubbed his shoulders, “touched [his] butt on purpose[,]” and he “felt uncomfortable.”

J.B.'s classroom teacher, Saundra Sharp–Conte, testified that J.B. often attempted to get out of class by asking to go to see the art teacher or go to the library or bathroom. Sharp–Conte allowed J.B. to go to the bathroom, but she was not asked and did not state whether J.B. went alone or was accompanied by an adult or fellow students.

Nash took the stand and denied sexually assaulting or inappropriately touching J.B. and K.L. Nash explained that because J.B. was a special-needs student and had disciplinary problems, he was assigned an aide, Crystal St. Louis. Specifically, Nash testified that either an adult or non-special-needs student accompanied J.B. to the bathroom. Nash insisted that he never escorted a student to the bathroom. Moreover, he indicated that J.B. was “escorted throughout the building with aides” and “to and from every classroom with aides.”

In rebuttal, the State called as its last witness Carl Gregory, the principal of the Morton Street Middle School. In response to questions posed by the prosecutor, Gregory stated that J.B. was not assigned a “personal aide” and that only one such aide was employed at the school. Gregory defined a personal aide as a person who “work[s] with a particular student throughout the day,” providing instruction, tutoring, and nurturing. Neither the prosecutor nor defense attorney asked Gregory whether J.B. was assigned any other category of aide who shadowed him during the day, and Gregory did not discuss “classroom” aides.

Gregory's rebuttal had devastating consequences for the defense. In summation, defense counsel accepted Gregory's testimony as the truth and conceded that Nash had erred in asserting that J.B. had been assigned an aide. Backpedaling, defense counsel explained: “Does that mean that Askia Nash is lying? No. That he may have been mistaken about this one boy? Yes.”

The jury found Nash guilty of, among other things, aggravated sexual assault of J.B. and endangering the welfare of K.L. Nash was sentenced to an aggregate term of twenty-two years in State Prison for those offenses.³

First New–Trial Motion

In June 2002, before sentencing, Nash filed a pro se motion for a new trial primarily based on ineffective assistance of counsel. Nash contended that his attorney failed both to elicit psychological and medical information bearing on J.B.'s mental status and to challenge the false testimony that J.B. had no aide. In his own handwriting, Nash stated that “[a]nyone knows that students with ... [J.B.'s] classification have classroom aides. The aides were willing to testify to this [but] counsel failed me by not having them present.”

Nash retained a new attorney to prosecute this motion. The trial court conducted a three-day evidentiary hearing to determine whether counsel was derelict in not presenting evidence that J.B. suffered from schizophrenia. Ultimately, the court rejected the diagnosis of one expert—contradicted by three other experts—that J.B. was afflicted with...