ELYRIA — An attorney for former Head Start bus driver Nancy Smith passionately argued Wednesday that she is innocent of molesting youngsters in her care and is entitled to be sentenced again because of a technical problem with her original sentencing entry in 1994.

Lorain County Common Pleas Judge James Burge said he will announce a decision after attorneys file a final round of paperwork.

Smith, 51, is serving 30 to 90 years in prison after a jury convicted her of rape, attempted rape, complicity to rape and gross sexual imposition. She and a co-defendant, Joseph Allen, who also was convicted and is serving a long prison term, have maintained their innocence.

Smith was not transported from the Reformatory for Women in Marysville, Ohio, for the hearing. But her attorney, Jack Bradley, and Assistant County Prosecutor Thomas Cahill argued the merits of a resentencing in her absence.

Bradley argued that the sentencing document prepared by then-Chief Assistant Prosecutor Jonathan Rosenbaum and signed by former Judge Lynett McGough is flawed because it failed to mention that Smith was convicted by a jury. Without the manner of conviction, the order is not final and is not appealable, Bradley argued.

Smith

But Cahill argued that giving Smith a new sentence would be like giving a heart transplant recipient an entire new operation because a doctor left a sponge inside the chest cavity.

The remedy in the heart transplant operation would be to remove the sponge and the remedy in Smith’s case should be a corrected sentencing document with the same sentence imposed by McGough, Cahill said.

Burge hinted that he was leaning against a resentencing, saying, “I have profound reservations on whether I have the right to rethink everything Judge McGough did and the state is arguing I don’t. I am thinking I don’t.”

During the hearing, both Bradley and Cahill were reprimanded at times by Burge, who nearly broke his gavel while trying to get Cahill to stop speaking.

The exchange began after Bradley said Smith’s rights had been violated, and she was entitled to a re-sentencing.

“Nancy Smith has been in prison for almost 15 years for crimes that she did not commit,” Bradley said, his voice strained with emotion.

Cahill leaped to his feet with an objection.

“I’m going to object, your honor, that’s not the case, that’s not the truth,” Cahill said. “That’s not true, a jury has decided this case. A jury has decided this case.”

During the objection, Burge slammed his gavel.

When the sound stopped reverberating through the courtroom, Burge asked Cahill, “Tom, when I hit the gavel, do you think that’s a sign to continue?”

Burge’s decision is likely not to be made for at least a month because he gave Bradley 14 days to submit any additional filings and Cahill the same time to respond.

“At this juncture, my feeling is conducting a new sentencing hearing and entertaining arguments on each side as to what sentence should be imposed is probably beyond my authority, but I suppose I could be persuaded,” Burge said,

In prior cases, Burge has drawn fire from prosecutors for imposing lighter sentences than McGough did on convicts who he felt were given overly harsh sentences when those cases came back to him for technical reasons.

After court, Bradley said even a new sentencing entry would be a step forward.

“The bottom line is, we’re going to get a whole new appeal,” he said. “Nancy’s goals all these years have been to get a second chance to prove her innocence.”

He said there are new issues to raise, and a new appeals court panel may agree.

The Ninth District Court of Appeals did take up her case previously and upheld her conviction on Jan. 28, 1998.

After court, three of Smith’s four children, Chase Smith, Courtney Smith and Amber Bronish, said they hope their mother will be freed and will be home for Christmas. The fourth child, Adam Miller, could not attend the hearing, but his wife, Michelle N. Miller, said they also insist Smith is innocent.

Since her conviction, each of Smith’s children has had two children themselves, so she has six grandsons and two granddaughters.

Chase Smith said any thought his mom would abuse children ages 4 and 5 is ridiculous.

“She had four kids of her own — anyone sick in their mind would have done it to their own kids,” he said.

The Ohio Parole Board rejected Smith’s parole request last year in large part because she refused to admit guilt.

But Smith’s sister, Karen Alemane, who attended Wednesday’s hearing, said Smith will never admit being guilty.

“She’ll die there first,” she said.

Smith is up for parole again in June. The 55-year-old Allen, who is serving five consecutive life prison terms, isn’t eligible for parole until 2056.

Contact Cindy Leise at 329-7245 or cleise@chroniclet.com.

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