October 1, 2014

Elyria
Fog
58°F
test

Nancy Smith freed

ELYRIA — Nancy Smith walked out of the Lorain County Jail on Wednesday and into the arms of family and friends, free for the first time since her 1994 conviction for molesting children on her Head Start bus route.

Smith, who had been serving a 30- to 90-year prison term, was freed on a $200,000 bond after Lorain County Common Pleas Judge James Burge ruled that he would hold a full resentencing hearing for her.

Burge effectively turned back the clock on Smith’s case to immediately after a jury found her guilty of rape, gross sexual imposition, attempted rape and complicity to rape charges.

Burge’s predecessor on the bench, retired county Judge Lynett McGough, sentenced Smith to the maximum but didn’t include a key phrase in the sentencing entry. Based on his review of the law and Ohio Supreme Court cases, Burge said Smith was entitled to a new sentencing entry at the least, and he concluded he had the authority to grant her a completely new sentencing hearing as well.

Freed

As she left the county jail Wednesday with her daughter’s arms wrapped protectively around her, Smith declined to comment on her sudden release, which even her family hadn’t anticipated.

Amber Bronish, one of Smith’s four children, said later that her mother was adjusting to her freedom and catching up with family and friends. She met her 4-month-old grandson for the first time and saw her other seven grandchildren for the first time outside the confines of the Ohio Reformatory for Women in Marysville.

“She hasn’t seen her grandkids run around and play,” said Bronish, who planned to pull her two children from school for the rest of the week so they could spend time with Smith.

Her mother was overwhelmed by the lack of restrictions after spending nearly 15 years in an institution where her every move was controlled, Bronish said.

Over the next few days, Bronish said Smith’s family and friends will try to get her re-adjusted to life on the outside. Her mother doesn’t even know how to work a cell phone, she said.

They also plan on catching up on the past 15 years with videos of weddings, births and other moments that Smith missed because of her incarceration.

In court

The 51-year-old Smith, whose once-blonde hair had turned iron gray since the last time she was in a Lorain County courtroom, sobbed and hugged her attorney, Jack Bradley, when Burge concluded Wednesday’s hearing. Her family wiped their eyes and thanked God.

When Burge asked if Smith would be able to post the bond, several of her supporters cried out “yes.”

“She’s coming home,” said Debbie Smith, a childhood friend of Nancy Smith who isn’t related to her. “It’s about time.

Debbie Smith and her husband, Brad Smith, put up three Lorain homes they own as collateral to free Nancy Smith.

Adam Miller, Nancy Smith’s son, said his mother, who has always maintained her innocence, was framed by the parents of children who eventually won a great deal of money in their lawsuit over the case.

“This was something that was made up by parents who were all out to get money,” he said.

Smith was accused of taking her young bus riders to the Lorain home of Joseph Allen, where they would molest the children and force them to perform sex acts. Both Allen and Smith, who continue to deny they knew each other before they became suspects in the case, were ultimately charged and convicted. Both lost their appeals.

Lorain County Prosecutor Dennis Will said Wednesday that members of his staff have spoken with the victims in the case, who weren’t in the courtroom Wednesday, and they aren’t happy about what’s happening in Smith’s case.

New trial?

Bradley said he won’t let Smith return to Marysville.

Although Burge ordered a presentence investigation that could take two months to complete and could change the sentence to the minimum of five to 25 years, Bradley said that wouldn’t be enough to keep Smith out of prison.

Even if Smith did get the minimum sentence, she would still be at the mercy of the parole board, which has the power to decide when she’ll be released on her indefinite sentence, a practice abolished when state law changed in 1996 to have inmates receive a definite sentence.

Smith, who had no disciplinary problems while incarcerated, was eligible for 231 days of “good time” that could have been shaved off her sentence, said JoEllen Culp, a spokeswoman for the Ohio Department of Rehabilitation and Correction.

But Smith used those days to get a 2007 parole hearing quicker, Culp said. It’s unclear, Culp said, whether Smith would be able to use 411 days she has “banked” to reduce her sentence further.

The Ohio Parole Board rejected her 2007 parole request, saying she was in “denial” because she refused to take responsibility for the crimes for which she was convicted.

Bradley said he doesn’t want to take a chance that the parole board will continue to keep Smith locked up. Before Burge holds Smith’s sentencing hearing, he said he plans to ask the judge to grant Smith a new trial based in part on new evidence.

One of the problems in the first trial, Bradley said, was that defense attorneys weren’t allowed to review interviews with the children until after the trial already had started. After listening to the tapes, Bradley said he asked for a continuance because he realized how full of inconsistencies the interviews with the alleged victims were.

McGough refused, and Bradley said he asked her to allow him to play the tapes for the jury. Again, he said, McGough refused. McGough declined to comment Wednesday.

There was never any physical, DNA or medical evidence linking Smith and Allen to the crimes for which they were accused, Bradley said, “because nothing ever happened to these kids.”

“This case is all based on the testimony of the kids,” he said.

A mental health expert who has since reviewed the tapes believes the victims in the case, now adults, were coerced into their testimony, Bradley said.

If Burge does grant a new trial, Bradley said he plans to win this time.

He said he underestimated the hysteria about child abuse cases that gripped the country when the case first went to trial. He said he thought he could win because prosecutors had little evidence and his client was innocent, but he was wrong.

“I’m not going to drop the ball this time,” he said.

Larger impact

Burge’s decision Wednesday also is good news for Allen, said his attorney, K. Ronald Bailey, who plans to ask Burge to also fix the same technical problem in his client’s case.

Allen, who isn’t eligible for parole until 2056, is just as adamant about his innocence as Smith.

“I know there’s been some trying to distance the two of them, but the truth is they both got stuck on the same railroad,” Bailey said.
Bailey said his client also won’t admit to something he didn’t do.

“What do you say, ‘I’m going to become a liar so I can get an easier life?’ ” Bailey said. “But the sad truth is that some people do.”

Bailey’s plan to seek to correct the problem with Allen’s sentencing entry could be among the first of what Will fears will be a cascade of defendants requesting new sentencing hearings because of similar errors.

“If this is a proper interpretation of the law; everyone who has a similar argument can file,” Will said.

That could mean prosecutors will have to pull old files on hundreds of cases dating back decades, he said.

“It’s trying to find victims, rereading transcripts of trials that are years old,” Will said.

Beyond that, Will said, a new sentencing hearing isn’t the way to correct a problem that hadn’t existed until a few months ago. Although Ohio Supreme Court decisions now require sentencing entries to contain the phrase “found guilty by a jury,” that wasn’t always the case, Will said.

Assistant County Prosecutor Tom Cahill urged Burge on Wednesday to simply correct the sentencing entry without holding a hearing.

“What are we trying to obtain here? A final appealable order,” Cahill said. “Can you attain that with a revised sentencing entry? Yes. Why would you go any further than that?”

Although Smith already has exhausted her appeals, a new sentencing hearing could open up the possibility that she could file a new round of appeals of her case if Burge doesn’t grant Bradley’s request for a new trial.

Will said his office is examining options to prevent a new hearing for Smith.

In the past, Will has fought some of Burge’s decisions, including to hold hearings on how the state carries out lethal injections of condemned inmates and to lower the sentences for criminals imposed by McGough that Burge deemed too harsh all the way to the Ohio Supreme Court.

Contact Brad Dicken at 329-7147or bdicken@chroniclet.com.