November 28, 2014

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Judge acquits Smith and Allen in Head Start case

ELYRIA — Nancy Smith and Joseph Allen have proclaimed their innocence in the controversial Head Start child molestation case for 16 years and on Wednesday, a judge finally agreed with them.

“I have absolutely no confidence that these verdicts are correct,” Lorain County Common Pleas Judge James Burge said before acquitting Smith and Allen of the charges that had kept them imprisoned from 1994 until earlier this year.

Cheers erupted from the few supporters of Smith and Allen who had accompanied the pair to what was expected to be a status conference to discuss the case.

Smith clamped a hand over her mouth as the weight of Burge’s decision registered with her. Later she said she just went “blank.”

“I couldn’t believe I was hearing that,” she said, still emotional as she discussed the case later in the day at the Lorain offices of her attorney, Jack Bradley.

The alleged crime

Smith, now 52, was a Head Start bus driver for the Lorain County Community Action Agency when the allegations against her surfaced in 1993. She was accused of taking the 4- and 5-year-old students who rode her bus to the Lorain home of Joseph Allen, a convicted sex offender.

The pair would molest, threaten and perform horrific sexual acts on the children, according to prosecutors.

Both Allen, now 56, and Smith said they didn’t even know each other and denied any wrongdoing.

The first Lorain police detective assigned to the case, Tom Cantu, now a sheriff’s deputy in Las Vegas, said Wednesday that he never believed that Smith was guilty of anything based on his investigation and told his superiors that no charges were warranted in the case.

He was later promoted, and the case reassigned. The new detectives, Cantu said, were under tremendous pressure to charge someone in the case.

“They were feeling pressure from the public,” he said, adding that in the early 1990s there was a climate of fear over child molesters in the United States.

Burge said Wednesday as he explained his decision to acquit the pair — just months after he had agreed to resentence them because of an error in their sentencing entries — that the detectives, social workers and parents of the alleged victims, though well-meaning, ended up convicting two people without enough evidence.

The interview techniques used by police when talking to the children were highly suggestive, Burge said, echoing a longtime complaint of Smith’s and Allen’s supporters.

Bradley said the interviews were so tainted that many of the children initially couldn’t even identify Allen as the man they accused of molesting them.

Surprise

Bradley and K. Ronald Bailey, Allen’s attorney, said they hadn’t expected Burge to acquit their clients at Wednesday’s hearing.

Bailey said he only told Allen to show up for the hearing because he feared his client — who, like Smith, has been placed on the county’s list of registered sex offenders — might be arrested if he wasn’t there.

Bradley said he thought Burge wanted to discuss how a resentencing hearing for Smith set for early next month would be handled.

Even as he sat listening to Burge lay out his rationale for acquitting Smith and Allen, Bailey said he could hardly believe what he was hearing.

“Once he said ‘judgment of acquittal,’ I thought, ‘We’re done. It’s over,’ ” Bailey said.

As they made their way from Burge’s courtroom to a bank of elevators in the county Justice Center, Smith and Allen’s supporters cried, exchanged hugs and praised Burge.

Allen said he never lost his faith that he would be exonerated.

“Thank God,” he said. “I’m free at last, free at last.”

Jury’s view

Edward Minney, one of the jurors who convicted Smith and Allen in their 1994 trial, said he agreed with Burge that there were problems with the case.

He said after he learned about the taped interviews of the children that he and his fellow jurors never saw, he began to question whether the jury made the right decision.

“So much evidence was suppressed,” he said.

Minney said he’s long been convinced he and the other jurors made a mistake that sent Smith to prison for 30 to 90 years and ultimately netted Allen five consecutive life sentences.

“I really feel bad that we convicted them,” Minney said. “… We should have been more questioning.”

It’s an opinion not shared by another juror, who asked that her name not be used.

She said she stands by her vote to convict in 1994.

“To all of us we felt there was enough evidence,” she said.

Acquittal & appeals

County Prosecutor Dennis Will said he still doesn’t believe that Burge had the authority to even consider resentencing the pair.

Burge’s decision earlier this year to resentence Smith and Allen hinged on an error his predecessor on the bench, retired Judge Lynett McGough, made when completing the sentencing entries in the case. Will concedes a mistake was made but argues that it should have been dealt with by a new sentencing entry.

The 9th District Court of Appeals dismissed Will’s appeal, which Burge said Wednesday allowed him to move forward with the resentencing and also to review the entire case.

Bradley and Bailey had both planned to ask for Burge to give their clients new trials.

Burge said his reading of the trial transcript and watching the interviews of the alleged victims as he prepared to send Smith and Allen back to prison convinced him to grant an old motion for acquittal — known in legal circles as a Rule 29 motion — that that was filed during the trial.

But Will said that just because Burge read the case doesn’t mean he knows the entire story.

“Reviewing the record is different than sitting through the whole trial,” he said.

Will said he’s always been open to reviewing any new evidence that would clear Smith and Allen but has never seen any.

Will and U.S. Magistrate Judge Greg White, who was Lorain County prosecutor when the case went to trial, said both Allen and Smith’s convictions went through the appeals process twice and were always upheld.

White said he couldn’t comment on the details of the case because of his current position, but he did wonder how Burge reached his decision.

“I’m at a total loss to explain this from a procedure standpoint,” White said.

Will said he will have to review Burge’s decision and will likely appeal.

K. Ronald Bailey, Allen’s lawyer, and Bradley both said that even if prosecutors win their appeal it won’t affect their clients now that Burge has acquitted them.

Will said he has to review that as well.

Looking back…

Joe Grunda, Allen’s trial attorney, said Allen never should have been convicted based on the evidence presented by former Chief Assistant County Prosecutor Jonathon Rosenbaum.

“I’m glad Burge had the intestinal fortitude to do something like that,” Grunda said.

Cantu said he too was pleased by Burge’s decision, but he never gave up hope that Smith would be exonerated.

“I knew it was going to happen, but I didn’t know when,” he said. “I’m just sorry it took so long.”

Rosenbaum, McGough and Lorain Police Chief Cel Rivera did not return calls seeking comment.

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

Read More

Woman convicted in molestation case may get new hearing

Nancy Smith freed

Nancy Smith afraid of losing freedom again

Prosecutors appeal judge’s order in Smith case

Joseph Allen Freed

Court greenlights Smith resentencing

Appeals judge upholds Joseph Allen’s release



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  • A History of The Head Start Case

    May 1993

    Photo

    The first allegations of sexual misconduct are reported to Lorain police, launching an investigation that spans months and draws massive publicity.

  • A History of The Head Start Case

    Nov. 10, 1993

    Photo

    Head Start bus driver Nancy Smith is indicted on charges of gross sexual imposition, attempted rape, rape and complicity to rape. She is accused of taking four and five year old children on her bus route to the Lorain home of Joseph Allen, where the pair allegedly molest them. Allen is indicted on compelling prostitution, rape and felonious sexual penetration charges.

  • A History of The Head Start Case

    May 11, 1994

    Smith indicted on an additional gross sexual imposition charge. Allen indicted on additional charges of compelling prostitution, rape and gross sexual imposition.

  • A History of The Head Start Case

    July 25, 1994

    Photo

    Smith attorneys make a motion for separate trials for her and Allen, claiming Allen’s prior criminal record will keep Smith from receiving a fair trial. Then-Lorain County Common Pleas Judge Lynett McGough rejects the request.

  • A History of The Head Start Case

    Aug. 3, 1994

    Photo

    Smith and Allen convicted of the charges against them on the 9th day of their jury trial. McGough sentences Smith to 30-to-90 years in prison. Allen receives five consecutive life sentences.

  • A History of The Head Start Case

    July 17, 1996

    Photo

    Lawsuit filed against Lorain County Community Action Agency by the victims in the case.

  • A History of The Head Start Case

    Jan. 25, 1996

    Photo

    Smith’s conviction upheld by the 9th District, OSC later declines to hear the case.

  • A History of The Head Start Case

    Jan. 24, 1997

    Photo

    A second lawsuit is filed against LCCAA, but it is merged with the initial lawsuit.

  • A History of The Head Start Case

    Aug. 27, 1997

    Photo

    Allen’s conviction is upheld by the 9th District Court of Appeals. The Ohio Supreme Court later declines to hear the case.

  • A History of The Head Start Case

    Jan. 28, 1998

    Smith’s conviction is again upheld by the 9th District.

  • A History of The Head Start Case

    May 11, 1998

    Photo

    Chronicle-Telegram columnist Paul Facinelli, who had covered the Smith case extensively, sues then-Chief Assistant County Prosecutor Jon Rosenbaum.

  • A History of The Head Start Case

    May 12, 1998

    Photo

    Facinelli fired from The Chronicle over the lawsuit.

  • A History of The Head Start Case

    June 4, 2003

    Judgment entered for plaintiffs against LCCAA in the civil lawsuit. The victims were awarded $1.5 million each.

  • A History of The Head Start Case

    July 16, 2003

    Smith’s attempt to reopen her appeals case rejected by the 9th District.

  • A History of The Head Start Case

    Feb. 12, 2005

    Photo

    The Head Start case is the subject of an episode of the Discovery Channel series “Guilty or Innocent?”

  • A History of The Head Start Case

    Feb. 20, 2007

    The Ohio Parole Board declines to grant Smith parole at her first hearing, saying that Smith is in “denial” because she won’t admit that she’s guilty of the charges she was convicted of.

  • A History of The Head Start Case

    Oct. 1, 2008

    Photo

    Smith’s attorney, Jack Bradley, challenges the sentencing entry that sent Smith to prison on technical grounds and asks for a new sentencing hearing. Prosecutors later counter that the error is typographical – Judge Lynett McGough failed to note that Smith had been convicted by a jury – and can be corrected with a new entry.

  • A History of The Head Start Case

    Feb. 4, 2009

    Smith is released from the county jail after county Common Pleas Judge James Burge finds that Smith is entitled to a new sentencing hearing because of a technical problem with the original hearing. He sets bond at $200,000 and Smith is freed about two hours later after a childhood friend puts up three pieces of property as collateral for her bond.

  • A History of The Head Start Case

    Feb. 7, 2009

    Photo

    Smith tells The Chronicle-Telegram that she is afraid of being returned to prison.

  • A History of The Head Start Case

    Feb. 12, 2009

    Prosecutors appeal Burge’s decision to resentence Smith to the 9th District Court of Appeals

  • A History of The Head Start Case

    April 14, 2009

    Photo

    Burge rules that he can resentence Allen and orders him freed on bond, which his family posts later that day. Prosecutors also appeal Burge’s decision in Allen’s case.

  • A History of The Head Start Case

    May 11, 2009

    The 9th District Court of Appeals dismisses the appeal of Burge’s decision, saying it cannot review the judge’s decision until Smith is resentenced.

  • A History of The Head Start Case

    June 10, 2009

    The appeals court dismisses the appeal in Allen’s case on the same grounds as in the Smith case.

  • A History of The Head Start Case

    June 24, 2009

    Photo

    Saying he wasn’t convinced Smith and Allen were guilty after an extensive review of the case, Burge acquits them both.

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