Burge lacked the power to acquit Smith, the state’s highest court said in its unanimous decision, which requires the judge to reinstate Smith’s 30- to 90-year prison term in a new sentencing entry.
Thursday’s decision didn’t specifically address Joseph Allen, Smith’s co-defendant in the case, effectively leaving in place an earlier decision by the 9th District Court of Appeals that reversed Burge’s decision to acquit Allen.
Burge said Thursday he wasn’t pleased with what the Supreme Court ordered him to do.
“I never thought I would witness anything quite so tragic in the criminal justice system, much less be any part of it,” thejudge said.
Jack Bradley, Smith’s lawyer, and K. Ronald Bailey, who represents Allen, said they too were horrified by the implications of the decision, but promised to continue their efforts to keep their clients from returning to prison.
“I’m going to keep fighting this until I’m dead,” Bailey said.
Smith, 53, and her family could not be reached for comment, but Bradley said his client sobbed inconsolably upon learning the news. He said even though she’s been free for nearly two years, Smith lives in constant fear she will have to return to prison.
Allen, 57, also could not be reached for comment, but his brother, Willie Allen, said he believes prosecutors should have stopped trying to return Joseph Allen to prison a long time ago.
“I don’t think it’s right,” he said of the Supreme Court decision.
But county Prosecutor Dennis Will said the Supreme Court made the right call in a case that has statewide implications.
If Burge’s ruling was allowed to stand, it would have opened the door to judges reviewing potentially thousands of closed cases because of technical problems in sentencing entries, Will has said.
“This is a point of law,” he said Thursday. “We get paid to follow the law.”
Attorneys on both sides of the case said that at least until Burge issues new sentencing entries, Smith and Allen will remain free.
Conviction & acquittal
During the 1994 trial, prosecutors contended that Smith would take 4- and 5-year-old children from her Head Start bus route to Allen’s home, where the children were sexually abused.
Smith and Allen, who have always maintained their innocence, insisted they didn’t even know each other until they were charged in the case.
After the trial, Allen was given five consecutive life sentences.
Smith received 30 to 90 years and already has been rejected for parole once, in part because she refused to acknowledge her guilt in the case, leading the Ohio Parole Board to say she was in denial.
Burge brought Smith and Allen back to a Lorain County courtroom in 2009 in order to address a technical flaw in the original sentencing entries handed down by his predecessor, now-retired Judge Lynett McGough, 15 years earlier.
The original entries failed to note that Smith and Allen had been convicted by a jury, language that is necessary to have a final, appealable order.
After he ordered Smith and Allen freed on bond, Burge reviewed the case file and the trial transcript before issuing his order acquitting the pair. At the time, Burge said he didn’t believe the pair committed the crimes they were convicted of during their trial.
“I have absolutely no confidence that these verdicts are correct,” Burge said in 2009.
Although prosecutors didn’t dispute there was a technical problem with the original entries, they argued that Burge didn’t have the power to hold new sentencing hearings, let alone toss the guilty verdicts.
Instead, Will’s office contended, Burge should have simply corrected what was in essence a typographical error by issuing a new sentencing entry.
The Supreme Court justices sided with prosecutors in their decision Thursday, saying that Burge didn’t have the authority to hold new sentencing hearings or to acquit Smith and Allen.
Instead, they wrote, a corrected sentencing entry was the proper means to fix the problem.
“It follows what we thought all along,” Will said.
Burge argued that the high court had ruled in previous decisions that flawed sentencing entries should be corrected by resentencing a defendant, which he took to mean either a new entry or a new hearing.
“But we did not suggest that this term encompassed anything more than issuing a corrected sentencing entry…” the justices wrote in their decision. “And by granting judgments of acquittal that the previous trial court judge had not, Judge Burge did far more than simply ‘resentence’ Smith and Allen.” Burge said Thursday that his hands are tied in the case, and he will have to issue a corrected sentencing entry for both Smith and Allen.
“Had the Supreme Court simply remanded the case, I would have dismissed it a second time under Criminal Rule 48(B),” Burge said. “Because I was ordered simply to correct the entry I cannot do that. As a result, in my judgment, two innocent people will recommence serving their original sentences.”
Criminal Rule 48(B), Burge said, allows him to dismiss a criminal case in the interest of justice. Bailey said he believes the Supreme Court’s decision may clear up a point of law, but that doesn’t mean Smith and Allen should be returned to prison.
“I think everybody knows these people didn’t do this,” he said. “Sometimes I think we exalt form over substance.”
Thursday’s decision focused solely on an appeal of a 9th District Court of Appeals ruling that dealt with an effort by Will’s office and the Ohio Attorney General’s Office to get a court order overturning Burge’s decision to acquit Smith and Allen.
The appeals court upheld Burge’s decision to acquit Smith, but said he had erred when he acquitted Allen.
The difference, the appeals court wrote in its decision last year, was that after the 1994 trial, Bradley asked McGough to set aside the guilty verdicts. Allen’s trial attorney, Joe Grunda, made no such motion. In separate opinions that dealt with appeals filed by prosecutors challenging Burge’s acquittal of Smith and Allen, the appeals court ruled that Burge acted properly in Smith’s case, but refused to consider the Allen appeal because the judges had already addressed the issue in the other case.
The Supreme Court has agreed to hear appeals in the other two cases, but had placed a stay on them until it issued Thursday’s ruling.
Bradley said he believes that the appeals court decision that held Burge acted properly in Smith’s case still needs to be reviewed by the Supreme Court.
“Judge Burge is not just some rogue judge out there who nobody agreed with,” he said. “The 9th District Court of Appeals agreed with Judge Burge’s reasoning and acquittal of Nancy Smith.” Bradley, Bailey and Burge all said after Burge issued his decision that even if Smith and Allen lost on appeal, the acquittal would stand because courts can’t set aside a decision to clear someone of a crime.
“I still think there’s an issue as to whether an acquittal, whether proper or not, trumps everything,” Bradley said. Options Both Bradley and Bailey said they have to review the decision before deciding how they should proceed. Among the possibilities is asking the U.S. Supreme Court to take a look at the issues in the case, they said.
The decision also could touch off another round of appeals of their original convictions by Smith and Allen in state courts.
Because technically there never were final, appealable orders, which would be a sentencing entry in a criminal case., in their cases, the pair may be able to argue their cases up through the state appeals process again.
In a concurring opinion to Supreme Court decision, Justice Judith Ann Lanzinger wrote that she and her colleagues didn’t address the issue of whether the appeals clock restarts when the new sentencing entries are issued in cases where old orders need to be corrected. Smith and Allen both lost their appeals in the 1990s following their convictions and the Supreme Court at the time declined to review their cases.
Bradley said he plans to involve local attorneys, the Ohio Innocence Project, the Ohio Public Defender’s Office and others in the review of his options.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.