May 31, 2016


The fight continues for Head Start pair Smith and Allen

ELYRIA — Nancy Smith and Joseph Allen may have been acquitted by a county judge, but their legal fight isn’t over.

On Thursday, Lorain County prosecutors asked the 9th District Court of Appeals for permission to appeal county Common Pleas Judge James Burge’s decision last month to acquit Smith and Allen in the controversial Head Start child molestation case.

Nancy Smith

Nancy Smith

Prosecutors must win the appeals court’s approval before they can even fully argue that Burge didn’t have the authority to throw out Smith and Allen’s 1994 convictions.

Smith, now 52, and Allen, now 56, were freed by Burge in separate hearings earlier this year after he ruled that a technical flaw in their original sentencing entries entitled them to new sentencing hearings.

Prosecutors conceded there was an error in the sentencing entries, but argued that it could have been fixed with new entries. There was no need, they argued to the appeals court then, to hold another round of hearings. It’s an argument that prosecutors revisit in their appeal request.

Joseph Allen

Joseph Allen

The appeals court declined to review the earlier round of appeals, and Burge moved forward with plans to hold new sentencing hearings. But last month, he said his review as he prepared for Smith’s new hearing convinced him there hadn’t been sufficient evidence to convict Smith and Allen, who have always maintained their innocence.

“I determined in this particular case the system did not work,” Burge said Thursday.

K. Ronald Bailey, Allen’s attorney, said he believes the efforts to appeal Burge’s decision will fail. Prosecutors can’t appeal after someone has been acquitted, he said.

“They kept rumbling that they were going to file it, so I’m not surprised, but I don’t think it will be granted,” he said. “When you know that it should be over and for them to try to do things they don’t have the statutory authority to do, it’s like — why?”

While defendants always have a right to appeal their convictions, Jack Bradley, Smith’s attorney, said prosecutors don’t have that same right.

“When a person is found not guilty, in other words, they’re acquitted — that’s supposed to be final,” he said. “That’s a protection that citizens are given to keep the government from forcing a person to go through a case again and again.”

But county Prosecutor Dennis Will said the acquittal itself isn’t the issue.

“We’re not appealing the acquittal, we’re appealing the jurisdiction of the court to even entertain the acquittal request,” he said.

Bradley said he wasn’t surprised by Will’s decision to appeal.

“If he can go to sleep at night and not wake up in the middle of the night feeling bad about it, I would say he has to do what he has to do,” Bradley said.

Will said he was never given any new evidence in the case to challenge the convictions. Bradley and Bailey had both said they were gathering new evidence in the case and had planned to ask Burge for new trials for their clients, a request rendered moot when the judge threw out the convictions.

In her appeals request, Assistant County Prosecutor Billie Jo Belcher wrote that Burge couldn’t grant a motion to acquit — known as a Rule 29 motion in legal circles —because it was outside the 14-day timeframe to do so.

Belcher also wrote that Burge wasn’t legally allowed to set aside evidence from the trial, such as the interview techniques used to question the 4- and 5-year-old alleged victims in the case who rode the Head Start bus Smith drove. Burge said last month those techniques were highly suggestive and tainted the children’s testimony.

Prosecutors contend Smith, who was sentenced to 30 to 90 years in prison, would take her bus riders to Allen’s Lorain home where they were brutally molested. Allen, who was serving five consecutive life prison terms, and Smith have both insisted they didn’t even know each other.

Belcher wrote that Burge’s decision could set a bad precedent, effectively forcing prosecutors to never consider a criminal case closed and never giving victims closure.

A “substantial number” of sentences could be thrown out because of errors in sentencing entries, even though years may have passed since defendants were convicted by a jury, she wrote.

“This is in complete contravention of the American justice system,” Belcher wrote.

Belcher’s position was backed by supporting court documents — known as amicus curiae, or “friend of the court,” briefs — from both Cuyahoga County Prosecutor Bill Mason’s office and the Ohio Prosecuting Attorneys Association.

“If a trial court can reopen a … acquittal decision 15 years after the time limit for such a ruling expired, criminal cases will never be final,” attorneys for Mason’s office wrote.

They also argued that retired Judge Lynett McGough, who oversaw Smith and Allen’s jury trial, was in a better position to decide whether to grant an acquittal motion.

Burge may have reviewed the “cold record” of transcripts and evidence, but he didn’t sit in on the trial, Mason’s assistant prosecutors wrote.

Will said Burge’s application of law in the Head Start case is unique and even if his office loses the appeal, it needs to be reviewed by a higher court.

He said if Burge’s decision stands, it would mean hundreds of defendants in Lorain County could challenge their sentencing entries and win new hearings.

“This has implications well beyond this case,” Will said.

Burge said he hasn’t seen a flood of defendants seeking to reopen their cases and that he rarely changes sentences when asked to do so.

“If someone makes a motion in the court, I’m going to deal with it, and I’m going to deal with it in the way I think is right,” Burge said.

Contact Brad Dicken at 329-7147 or

About Brad Dicken

Brad Dicken is the senior writer for the Chronicle-Telegram. He covers courts and county government, and has been with the Chronicle since 2001. He can be reached at 329-7147 or Follow him on Twitter.