ELYRIA — An appeals court has upheld Lorain County Common Pleas Judge James Burge’s decision to acquit Nancy Smith in the con­troversial Head Start child molestation case, but in the same ruling the appeals court said that Burge lacked the authority to do the same for Smith’s co-defendant, Joseph Allen.

The 9th District Court of Appeals ordered Burge to resen­tence Allen, who had been serving five consecutive life sentences when Burge freed him and Smith last year because of a technical flaw in the sentencing entries pre­pared by his predecessor, retired county Common Pleas Judge Lynett McGough.

If Allen is resentenced, he will still be facing life prison terms, said his attorney, K. Ronald Bailey.

Different lawyers, different outcomes

The different outcomes for two people tried and convicted together centers on the actions taken by their separate lawyers at the end of their 1994 trial.

After the trial, Jack Bradley, Smith’s attorney, filed a motion — known in legal circles as a Rule 29(c) motion — asking McGough to acquit his client of the charges despite the jury’s decision to con­vict her. McGough rejected the request.

Allen’s trial lawyer, Joe Grunda, didn’t make the same motion at the conclusion of the trial. Bailey said Grunda did make a motion to acquit Allen after prosecutors had finished their case, but didn’t do so again after the jury verdict was announced.

“I understand what they’re say­ing, but it’s just so wrong,” Bailey said of the appeals court decision. Burge said he would have pre­ferred if the appeals court had upheld his decision to acquit both Smith and Allen.

“The perception is horrible. While I can understand the rea­soning, the result doesn’t comport with what the average citizen would call justice, so the percep­tion is gut-wrenching,” Burge said. “It’s not the court of appeals I quarrel with; it’s that this can hap­pen in our system of justice.” Bai­ley said while Allen, who could not be reached for comment, was dis­appointed with the decision, his client didn’t begin screaming or crying at the prospect of returning to prison.

Smith said she was over­whelmed by the decision. She referred to Matthew 10:26, a Bible verse she said kept her strong while she was serving the 30- to 90-year prison term McGough imposed on her.

“Fear them not therefore: for there is nothing covered, that shall not be revealed; and hid, that shall not be known,” the verse says.

“That scripture pretty much says it all,” Smith said.

Both Smith and Allen have maintained their innocence since their initial arrest on charges they molested 4- and 5-year-old children on Smith’s Head Start bus route in the early 1990s.

“The truth does come out and that’s what happened here,” Smith said.

Possible appeals

Bradley, who continues to represent Smith, said he hopes that prosecutors won’t appeal the decision to the Ohio Supreme Court.

“I’m glad they ruled as they did and it’s my hope the county prosecutor stops wast­ing Lorain County taxpayers’ money and leaves this poor lady alone,”Bradley said. “This injustice has gone on too long.” County Prosecutor Dennis Will said he hasn’t decided whether he’ll appeal.

“I want to review the deci­sion of the court and digest that,” he said.

Bailey said he isn’t exactly certain how to proceed with an appeal either.

The appeals court entered three separate decisions regarding Smith and Allen. The one that upheld Smith’s acquittal and ordered Burge to resentence Allen came in a lawsuit Will and Ohio Attorney General Richard Cordray had filed against the judge. Bailey said Allen isn’t a party in that case and likely can’t appeal.

In a separate decision, the appeals court ruled prosecu­tors’ appeal of Burge’s deci­sion in Allen’s case was moot, which Bailey said he may appeal. More likely, he said, he’ll wait until Allen is resen­tenced and appeal his client’s conviction that way.

The third case, in which prosecutors had appealed Burge’s decision to acquit Smith, the appeals court effec­tively mirrored its decision to leave the Smith acquittal in place.

Technical issues

Before he ultimately acquit­ted Smith and Allen because he didn’t believe the evidence justified a conviction, Burge had agreed to hold new sen­tencing hearings for the pair because their sentencing entries didn’t say they were convicted by a jury.

Without those words, Burge said — and prosecutors didn’t disagree — the sentencing entries weren’t technically correct.

Prosecutors argued, how­ever, that Burge could correct what amounted to a typo­graphical error through a new sentencing entry. A new hear­ing wasn’t necessary, Will’s office contended.

Under Ohio’s criminal rules, until a final appealable order — which in criminal cases is a sentencing entry — is imposed in a case, judges may reconsider and change previ­ous decisions, the appeals court decision said.

Will said the problem comes down to whether a case can ever be considered closed if a technical error is found. He said other cases currently moving through Ohio’s court system could ultimately settle the issue, but for now it remains a point of contention. “It’s still all in flux,” he said.

Unfinished case

In an opinion dissenting with her fellow appeals court judges, appeals Judge Donna Carr wrote that she would have overturned Burge’s deci­sion in Smith’s case as well as Allen’s. She wrote that both Smith and Allen have already been through the appeals process and their convictions have been upheld.

Burge’s decision, Carr wrote, also went against the deci­sions of higher courts to leave Smith and Allen’s convictions in place.

“Citizens will also lose con­fidence in the criminal justice system when they see defen­dants who have been con­victed, received appellate review, and pursued postcon­viction relief, released with a judgment of acquittal because the original judgment of con­viction failed to include the word ‘jury,’ ” she wrote.

Carr also urged the Ohio Supreme Court to examine the issue of finality in criminal cases and problematic sen­tencing entries. Bradley said he was disap­pointed to learn that Allen may have to return to prison if the appeals court decision stands.

But he also said that’s the way the legal system works — in the same way a mistake 16 years ago created the opening that led to Smith’s acquittal, an entirely different mistake could send Allen back to prison for the rest of his life.

“If you drop the ball it can be devastating,” Bradley said.

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

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