CHARLESTON – David Nelson does not deserve the new trial that the West Virginia Supreme Court of Appeals awarded him on charges that he joined four other men in brutally murdering a woman, according to Justice Spike Maynard.
In a Nov. 6 dissent Maynard wrote, "Clearly, the trial was in all respects fair and impartial, and the jury reached the correct verdict."
The other four Justices agreed Oct. 30 that Mingo Circuit Judge Michael Thornsbury allowed unverfified and inflammatory testimony at Nelson's trial.
Maynard wrote that due to their error, "... the State is needlessly charged with the time and expense of retrying a defendant who was fairly found guilty of an evil and heinous crime by an impartial jury."
Nelson faces charges that he raped and beat Wanda Lesher in 2002, with his brother Aaron, his brother Clinty, Zandell Bryant and Alfred Dingess Jr.
"What Ms. Lesher suffered in the final hours of her life is truly unimaginable," wrote Maynard, who is from Mingo County himself.
The other men admitted their crimes, but David Nelson claimed innocence.
At trial, his wife testified that she went to work and left him at home with their daughters. A daughter testified that he stayed home.
Nelson testified in his own defense, portraying himself as a family man who would not commit such crimes.
On cross examination, prosecutors confronted him with a sexual abuse complaint that his sister had filed against him 18 years earlier.
Nelson denied that he abused his sister.
His attorney moved for mistrial, but Thornsbury ruled that Nelson introduced character evidence and the state could properly challenge it.
The Supreme Court of Appeals disagreed, ruling that Thornsbury should have excluded the sister's complaint.
Maynard wrote, "Contrary to the majority, I believe that the defendant was properly questioned," Maynard wrote, noting that a West Virginia rule of evidence permits effective challenges to claims that a defendant is morally incapable of committing the crime charged.
"Absent such a rule, a defendant's assertions of high moral character would go unchallenged by the State. ... Because the defendant put his owncharacter at issue, the State clearly had a right under our rules to impeach the defendant's character.
"Once the defendant denied the allegations, the jury possessed all the relevant evidence necessary with regard to the defendant's character to make the necessary credibility determinations."