The Ohio Supreme Court has upheld its decision from earlier this year overturning Lorain County Common Pleas Judge James Burge’s order acquitting Nancy Smith in the controversial Head Start child molestation case.
The Supreme Court ruled in January that Burge didn’t have the power to acquit Smith of the charges that led to her imprisonment for nearly 15 years before Burge freed her and codefendant Joseph Allen in 2009.
Burge had acquitted the pair after a flaw in the original sentencing entries — the entries were supposed to note Smith and Allen were convicted by a jury, but didn’t — prepared following their convictions during their 1994 trial was discovered. The judge said he reviewed the evidence in the case in preparation for new sentencing entries, but became convinced there wasn’t enough evidence to convict them.
County Prosecutor Dennis Will and the Ohio Attorney General’s Office fought Burge’s decision to the state’s highest court, arguing that Burge should only have corrected the flaw in Smith’s sentencing entry rather than effectively reopening the case and the Supreme Court agreed.
Allen’s case isn’t covered by the Supreme Court decision, but a 9th District Court of Appeals decision has said Burge lacked the power to revisit his case as well. Two other appeals — one dealing with Smith’s case and the other with Allen’s — also were dismissed by the Ohio Supreme Court today.
Burge has said that unless the Supreme Court reverses its decision from January, he will have little choice but to return Smith and Allen to prison.
Attorneys for Smith have been working on several other efforts to keep Smith, who like Allen denies molesting 4- and 5-year-old children on her Head Start bus route in the 1990s, back to prison.