August 29, 2014

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Prosecutors group backs Will in Head Start case

The Ohio Prosecuting Attorneys Association has filed court documents with the Ohio Supreme Court backing the efforts of Lorain County Prosecu­tor Dennis Will and Ohio Attorney General Richard Cordray to return Nancy Smith to prison in the contro­versial Head Start child molestation case.

Will

Will

The association, which is com­prised of prosecutors from around the state, said that its member­ship agreed with Will that Lorain County Common Pleas Judge James Burge had over­stepped his authority when he acquitted Smith last year.

Burge also has acquitted Smith’s co­defendant Joseph Allen as well, but earlier this year the 9th District Court of Appeals ruled that Burge lacked the power to throw out the 1993 guilty ver­dict handed down by a jury against Allen.

The difference, the appeals court said in its June decision, was that Smith’s trial lawyer, Jack Bradley, asked Burge’s predecessor, then­county Judge Lynett McGough, to clear his client despite the jury verdict. Allen’s trial lawyer, Joe Grunda, made no such motion.

When Smith and Allen both asked Burge for new sentencing hearings based on a technical error in the sen­tencing entries that sent them to prison in 1993, Burge was legally allowed to revisit Smith’s post-verdict request for acquittal, the appeals court ruled.

He could not do so for Allen, the appeals court said in a decision that ordered Burge to resentence Allen. Burge has promised to fight the appeals court decision in the Allen case.

The court documents filed with the Ohio Supreme Court on Wednesday are known in legal circles as amicus curie, or “friend of the court,” briefs, and are used by groups that have a stake in the outcome of the case, although aren’t parties, to voice their opinion to the court.

In the association’s brief, Assistant Summit County Prosecutor Richard Kasay wrote that Burge should never have been able to hold a new sentencing hearing for either Smith or Allen.

Instead, Kasay wrote, the only thing Burge should have been able to do was issue a corrected sentencing entry that fixed the technical problem with the original sentencing entries, which failed to note that Smith and Allen were found guilty following a jury trial.

“That defect does not render the entry void and the sole remedy is issuance of a corrected entry,” Kasay wrote.

It’s the same argument Will has made since Smith and Allen asked for new sentencing hearings two years ago.

Will has said that the implications of Burge’s decision goes far beyond Lorain County and could lead to other defendants around the state having their cases reopened long after the appeals process has been completed and the cases closed.

Contact Brad Dicken at 329-714 or bdicken@chroniclet.com.