November 22, 2014

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Ohio Supreme Court to hear Head Start case appeal

The Ohio Supreme Court on Wednesday agreed to hear appeals from prosecutors over Lorain County Common Pleas Judge James Burge’s decision to acquit Nancy Smith and Joseph Allen last year in the controver­sial Head Start child molestation case.

Smith

Smith

Allen

Allen

But the state’s high court then suspended any activity in the case while it deals with a lawsuit that county Prosecutor Dennis Will and Ohio Attorney General Richard Cordray have filed against Burge that deals with the same issues.

Will and Cordray contend that Burge overstepped his authority when he agreed to hold new sentencing hearings for Smith and Allen because of technical errors in the sentenc­ing entries prepared after they were convicted following a 1994 trial.

But before the hearings could be held — prosecutors argued that the errors should be dealt with by filing corrected sentenc­ing entries — Burge instead acquitted Smith and Allen after he reviewed the evidence and decided there wasn’t enough evidence to convict the pair.

Smith and Allen always have maintained their innocence.

The 9th District Court of Appeals later ruled — in three separate decisions — that Burge was legally able to acquit Smith because after her trial, her lawyer asked Burge’s predeces­sor, then county Judge Lynett McGough, to set aside the jury’s guilty verdict.

McGough refused to grant the request but because of the tech­nical problem with the sentenc­ing entry — in both Smith and Allen’s cases, the entries failed to note they had been convicted by a jury — Burge was able to review the old motion to acquit. Allen’s lawyer made no such request of McGough in the aftermath of the trial and so Burge didn’t have the power to acquit Allen, the appeals court said.

The Supreme Court has been reviewing the lawsuit that Will and Cordray filed against Burge because prosecutors had an automatic right to appeal. No such right existed in the Smith and Allen cases and the state’s high court had to grant permis­sion for the appeals to go for­ward.

The Ohio Prosecuting Attor­neys Association has backed Will in the legal fight, arguing that if Burge’s order is allowed to stand it could potentially reopen an untold number of cases across the state.

The Ohio Public Defender’s office has backed Burge in the dispute, arguing that the judge acted properly in the case.

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