November 20, 2014

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Tale of the tape: The telling tape the defense never saw

This story originally ran Sept. 21, 1997.

Paul Facinelli and Pam Plas, The Chronicle-Telegram

POINT HIM OUT: The tape shows the children trying to pick Joseph Allen, second from left, out of this lineup of five black men.

POINT HIM OUT: The tape shows the children trying to pick Joseph Allen, second from left, out of this lineup of five black men.

Four of seven Head Start children who viewed a police lineup in 1993 failed to identify a man suspected of being a molester. A fifth child, after failing repeatedly, finally succeeded with help from her mother. But the Lorain County
prosecutor’s office did not alert defense lawyers that the results of the lineup might aid their clients, who were later found
guilty.

Under the rules of conduct for judges and lawyers in Ohio, prosecutors must make known to defense lawyers, before trial,
any information they uncover that could help defendants.

Nine months after the lineup, when five of the seven children testified at the trial, the prosecutor’s office did not give
the defense a videotape of the lineup, even though a defense lawyer asked for any earlier statements that the children
had made to police.

Ohio’s Rules of Criminal Procedure require that once a witness has testified and the defense has asked for his prior
statements to police, the prosecution must give the defense those statements.

County Prosecutor Gregory A. White said that his office did not consider the children’s videotaped responses to be
prior statements to police.

The lineup and the tape are at the heart of the case; the children’s credibility. They were the only witnesses to describe sexual abuse at the hands of Joseph Allen and Nancy Smith, both of whom were sentenced to long terms in prison.

The Chronicle-Telegram became aware of the videotape last month during an interview with Allen at Mansfield Correctional Institution. Allen told a reporter that Lorain police had made the tape during

The existence of the tape and the way the prosecutor’s office dealt with it raise new questions about an already controversial trial. In a three-day series of stories 11 months ago, The Chronicle reported on information not available to the jury that might have changed its verdict.

The tape also was unavailable.

The jury did not see it.

White defended the handling of the tape, saying that it would not necessarily have helped the defense. The children refused to identify Allen out of fear, he said, and the tape was therefore incriminating.

But others, including a law school dean and a prosecutor from Cuyahoga County, had very different views on how prosecutors should act in this situation.

How C-T got videotape

The Chronicle obtained the videotape from the Lorain Police Department last month. It confirms information contained in a
police report, the contents of which the jury also did not hear:

Four children at the center of the Head Start investigation failed to identify Allen and a fifth succeeded only with help from her mother.

(At various points during the lineup, the videotape shows, the mother herself pointed to Allen, corrected her daughter in order to draw the child’s attention toward Allen and took her daughter’s wrist and directed the child’s extended index finger.)

The newspaper then checked Rosenbaum’s discovery filings.

Discovery is that portion of the pretrial process in which both sides share the names of witnesses they might call and evidence they might introduce.

Rosenbaum listed the videotape among his own list of 54 witnesses.

At the end of his discovery filing, there’s a paragraph detailing evidence the state found that it considered helpful to the defense. There’s no mention in that paragraph of the difficulty the children had identifying Allen at the lineup.

Last year, when The Chronicle was preparing its series on the case, Rosenbaum told the newspaper’s top executives
that he had informed the defense of the problems the children had at the lineup. At the time, The Chronicle did not
check the discovery filings to confirm the accuracy of Rosenbaum’s assertion.

The children’s testimony was central to the prosecution’s case.

In court, five children identified Allen, including two who failed to pick him out in the lineup and the one who got help from her mother. In cross-examination of the children, defense attorneys Joseph Grunda (for Allen) and Jack Bradley (for Smith) left the children’s identifications virtually unchallenged.

In his cross-examination of one child, a boy, Bradley established that the child had failed to identify Allen in a photo lineup
that was given before the live lineup in which the boy did identify Allen.

Other views

According to Jack Guttenberg, associate dean and professor of law at Cleveland State University’s Marshall School of Law, the information that the children had problems identifying Allen at the lineup clearly would have helped the defendant.

“The fact that five of the children did not identify him makes it clearly exculpatory,” Guttenberg said, using a legal term that refers to information favorable to the defense.

“And the fact that some of the children picked someone other than him (Allen) makes it even more exculpatory. There’s no
doubt it should have been listed in the exculpatory statement.”

Because Allen and Smith had different lawyers, Rosenbaum had to respond to two discovery requests. He filed initial discovery with Grunda, Allen’s court-appointed lawyer, Jan. 18,1994, and with Bradley, Smith’s lawyer, May 17,1994.

After Smith and Allen’s cases were consolidated, Rosenbaum provided Grunda and Bradley with four joint “supplemental”
discovery filings. He filed the last of these July 28, 1994, after the trial had begun. In none of the filings did he list the videotape as potentially helpful to the defense.

‘Not enough’

Guttenberg said that Rosenbaum’s inclusion of the videotape in his own list of witnesses was not enough to meet his obligation to reveal the helpful nature of this evidence to the defense.

He said that because two of the children identified Allen in the lineup, it was proper for Rosenbaum to include the videotape among his list of witnesses and other evidence.

But, Guttenberg said, because five of the children did not immediately identify Allen and chose other lineup participants,
the videotape should also have been included in Rosenbaum’s statement about information helpful to the defense.

“It should have been listed in both places,” Guttenberg said.

Carmen Marino, first assistant Cuyahoga County prosecutor, said it was a “gray area” whether Rosenbaum had met his
obligation to reveal the exculpatory nature of the video by simply listing it among his own witnesses.

“Personally, I would have gone the additional step and notified the defense,” Marino said. “I would have drawn particular
attention to it.”

Calls seeking comment from Rosenbaum were not returned.

White’s response

White, the Lorain County prosecutor, said, “The case has-been litigated and I’m not going to get into this debate with your newspaper. It (the videotape) was referenced in the discovery and it’s all been litigated.”

A written but unsigned statement on the letterhead of the prosecutor’s office, dated Sept. 12, said that the lineup “was not used at the trial in the traditional sense.” Unlike a traditional lineup, the statement said, this one generated incriminating evidence because the children, out of fear, refused to identify Allen.

Rosenbaum’s summary of information helpful to the defense included “self-serving statements” by the defendants,
the fact that Allen had an explanation for items seized by police from his home and an indication that children had had difficulty identifying Allen in photo lineups.

Rosenbaum did not introduce the videotape into evidence during the trial, although he noted in his opening statement to the jury that some children picked Allen out of the lineup and others failed.

“Other kids will look at him, panic, and identify everyone but him,” Rosenbaum told the jury. “Some of the kids, we’ll be honest, couldn’t say that’s him.”

Who knew it existed?

Grunda, a former county prosecutor, told The Chronicle that he was unaware of the existence of the videotape until he learned about the newspaper’s attempts to obtain it last month. Bradley admitted that he should have demanded to see the videotape. Speaking of the defense lawyers, Marino, the prosecutor from Cuyahoga County, said, “If they were made aware of it and did not look at it, it calls into question whether they fulfilled their obligation to their clients.”

Nevertheless, Bradley said, Rosenbaum should have given the videotape to the defense lawyers after the children testified, in accordance with the rules of criminal procedure.

According to trial transcripts, Bradley asked to examine all prior witness statements made to the police. Rosenbaum
provided audiotapes of conversations that police and social workers had with the children, but he did not give the defense the lineup videotape.

“He handed over the audiotapes of the interviews with the kids after they testified,” Bradley said. “He should have
given us the videotape, too.”

Guttenberg said participation in a lineup is a prior statement to police. Marino agreed and said that Rosenbaum should have given the videotape to the defense.

“The defense is entitled to all statements made to the police,” Marino said, “regardless of how they’re recorded.”