In October 2000, two 12-year-old boys, one of them a special-education student in middle school in Newark, New Jersey, accused the school’s librarian, 39-year-old A. Jabir Nash, of sexually molesting them.
Nash was arrested and charged with first-degree sexual assault of the special education student, identified only as J.B., two counts of second-degree endangering the welfare of J.B. and one count of threatening J.B. Nash was also charged with one count of endangering the welfare of the other boy, identified as K.L.
Nash went on trial in Essex County Superior Court in May 2002. J.B., who was a special education student diagnosed with schizophrenia, testified that on three occasions Nash inserted his finger in J.B.’s anus in the school bathroom and that Nash threatened to harm his mother if he told anyone.
J.B. told his mother he had been molested in October 2000 and she took him for a medical examination. A physician testified that J.B’s rectal area was red and there was evidence of a fissure. The physician said J.B. suffered from constipation and that the symptoms could have been caused by the constipation or by sexual abuse—there was no way to differentiate between the two as causes.
K.L. testified that on one occasion, Nash kept him after class to stock books and that Nash touched his buttocks “on purpose.”
Nash testified and denied sexually assaulting or inappropriately touching the boys. He said that because J.B. was a special needs student, he was assigned an aide who accompanied J.B. whenever he left the classroom, including using the bathroom.
In rebuttal, the prosecution called Carl Gregory, the school principal who testified that J.B. was not assigned a “personal aide” and that there was only one such aide at the school.
The testimony was so devastating that the defense conceded that Nash had erroneously testified that the boy had an aide.
After a four-day trial, the jury convicted Nash of two counts of aggravated sexual assault of J.B., one count of threatening J.B., two counts of endangering J.B. and one count of endangering K.L. Nash was sentenced to 22 years in prison.
Even though Nash discovered evidence within two years after the conviction that supported his claim that in fact there was an aide assigned to J.B, his attempts to obtain a new trial were repeatedly rejected for a decade.
In 2004, in response to a lawsuit filed by J.B.’s mother seeking money damages, the school, including Gregory, the principal, provided sworn affidavits that J.B. actually had an aide. This discovery prompted Nash to file two separate motions for a new trial. Both were denied because the court believed that the evidence could have been discovered earlier (even though at least one school official said the principal had imposed a gag order on all employees, which thwarted defense efforts to interview anyone). Finally, after a post-conviction motion was denied without a hearing, the New Jersey Court of Appeals overturned the denial and ordered a hearing.
At the hearing, J.B’s teachers and J.B.’s aide testified that J.B. was accompanied at all times so he could not have been molested by Nash. One staff member said that J.B. was known as a pathological liar. The principal had passed away by then. Nash’s post-conviction lawyer argued that the prosecution had withheld evidence and that Nash’s trial lawyer had failed to adequately investigate the case.
But the judge determined that the prosecutor did not know there was an aide assigned to J.B. and that the principal had parsed the question too thinly. J.B. did not have a “personal aide,” but he did have a “classroom aide.” In effect, the principal had been technically correct, but in truth, J.B. had an aide.
The judge ruled that the defense attorney had sought the information, but did not discover it through no fault of his own and that there was no withholding of evidence by the prosecution, so therefore Nash failed to satisfy any standard for obtaining a new trial on the basis of newly discovered evidence. Nash’s motion was denied and the Court of Appeals upheld that ruling.
In September 2012, Nash was released on parole. In January 2013, the New Jersey Supreme Court reversed the denial of the motion and ordered a new trial. “The newly discovered evidence issue has taken a tortuous path, evading substantive consideration and appellate review for ten years,” the Supreme Court said. “Along the way there have been missteps and missed opportunities that have contributed to this issue never receiving a full airing.”
In ordering a new trial, the Supreme Court noted that the principal’s testimony “conveyed the false impression that Nash had not been telling the truth about the assignment of an aide to J.B. That testimony shattered Nash’s credibility, branding him a liar.”
The Court held that the damage infected the whole trial and so reversed the charges involving both J.B. and K.L. “The holding of an evidentiary hearing…should not have taken eight years,” the Supreme Court said. “The old phrase that ‘justice delayed is justice denied’ is certainly apt here.”
On April 29, 2013, the prosecution dismissed the charges. Nash filed an administrative claim seeking reinstatement and back pay, but his claim was denied.
– Maurice Possley