July 29, 2014

Elyria
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Judge James Burge defends actions in Head Start case

ELYRIA — Lorain County Common Pleas Judge James Burge wrote in court documents to be filed today that he acted properly when he acquitted Nancy Smith and Joseph Allen in the controversial Head Start child molestation case.

Burge

Burge

Smith

Smith

Allen

Allen

County Pros­ecutor Dennis Will and Ohio Attorney Gen­eral Richard Corday have argued in an Ohio Supreme Court case that Burge over­stepped his authority last year when he agreed to hold new sentencing hearings for Smith and Allen because of technical flaws in their 1994 sentencing entries.

Instead of holding the new hearings, Burge said that he had no confidence in the guilty ver­dicts and acquitted Smith and Allen, who have always main­tained they didn’t sexually abuse 4- and 5-year-olds on Smith’s Head Start bus route in the early 1990s.

The 9th District Court of Appeals already has ruled that Burge had the power to acquit Smith because at the end of the 1994 trial, her trial lawyer asked the trial judge to throw out the jury verdict. Allen’s lawyer didn’t make a similar request and the appeals court has ordered Burge to resentence Allen, who was serving five consecutive life sen­tences when Burge freed him last year.

Burge called the appeals court’s decision to leave Smith free, but return Allen to prison “unconscionable.”

During the trial, Burge wrote, Smith, a white woman, was represented by a private lawyer, while Allen, who is black, had a court-appointed lawyer.

If he must send Allen back to prison, Burge wrote, it would not be because he believed Allen was guilty.

“Allen’s conviction and sentence would be based not upon the evidence presented against him at trial, but rather, upon the failure of his counsel to effectively challenge the sufficiency of the evidence presented,” Burge wrote.

Burge wrote that the appeals court decisions that leave Smith free should stand, while the Supreme Court should allow him to acquit Allen as well.

“If the court were to answer this question in the negative, then a trial judge would be bound under the facts of this case, to acquit one co-defendant and to convict the other, based upon evidence that the court has determined is insufficient to convict either defendant or, more troubling, demonstrates the factual innocence of both,” Burge wrote.

Prosecutors contend that Burge never should have even had the chance to revisit old motions to acquit. Instead, they argued that the technical problem with the original sentencing entries — the documents failed to note that Smith and Allen were convicted by a jury — could have been corrected with new sentencing entries.

New sentencing hearings were unnecessary and improper, attorneys for Will and Cordray have argued in court documents.

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