The state’s highest court ordered that Smith’s original conviction be reinstated and that the pair be returned to prison. Smith was serving a 30-to-90-year prison sentence, while Allen was serving out five consecutive life terms when Burge ordered their release in 2009.
The Supreme Court didn’t dispute there was a technical flaw in the original sentencing entries that sent Smith and Allen to prison – Burge’s predecessor, then-Judge Lynette McGough, had failed to note each of them had been convicted by a jury in the original entries – but the justices said the way to correct the problem was with an order fixing the error.
Burge didn’t have the power to hold a new sentencing entry, the Supreme Court decision said. He also lacked the authority to issue an acquittal in the case, which he did a few months after freeing Smith and Allen while he reconsidered the sentence.
County Prosecutor Dennis Will and the Ohio Attorney General’s Office argued that Burge should only have corrected the clerical error in the original sentencing entries.
An appeals court later held that Burge was within his rights to order Smith’s acquittal, but not Allen’s because of differences in how their attorneys handled requests to throw out their convictions at the end of their 1994 trial.
Whether or not Smith and Allen can appeal their convictions again – both lost their first round of appeals – remains a question mark.
The Supreme Court didn’t specifically address Allen’s case in its decision, but the justices also didn’t overrule the appeals court, leaving the lower court’s order that his conviction stand in place.
Justice Judith Ann Lanzinger wrote in a separate opinion that the Supreme Court’s decision doesn’t address that issue.
Smith and Allen have maintained their innocence and that they didn’t molest children on Smith’s Head Start bus route in the early 1990s.