The Ohio Supreme Court on Tuesday upheld its decision from earlier this year overturning Lorain County Common Pleas Judge James Burge’s decision to acquit Nancy Smith in the controversial Head Start child molestation case.
The 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 largely declined to comment on Tuesday’s decision, although he has said in the past that if the Supreme Court overturned his decision to acquit Smith and Allen, he would have little choice but to return them to prison.
“The case will have to take its course,” Burge said.
Jack Bradley, Smith’s lawyer, said he doesn’t expect Burge to order his client back to prison immediately.
“We’re not hitting the panic button at this point,” he said. “We think we have some other options that we’re going to pursue.”
Bradley said despite the fact that the Supreme Court rejected Burge’s request that they reconsider the earlier decision, there were two pieces of good news. First, he said, the Ohio Supreme Court granted his request that Smith be allowed to become a party to the case, which paves the way for the legal fight to move to the U.S. Supreme Court.
“I don’t think Judge Burge should proceed until we’ve had United State Supreme Court decide whether it will take the case,” he said.
Bradley also noted that two Ohio Supreme Court justices, Judith Ann Lanzinger and Paul Pfeifer, disagreed with the decision to overturn Smith’s acquittal. In her dissent, Lanzinger wrote that the law holds that once someone has been acquitted that acquittal can’t be reversed.
“Judge Burge was attempting to correct what he believed was a miscarriage of justice,” Lanzinger wrote.
Bradley said having the support of two justices, as well as Burge and the two 9th District Court of Appeals judges who ruled that Burge had acted appropriately when he acquitted Smith, could bolster his plan to ask Gov. John Kasich to grant Smith clemency.
The Supreme Court decisions effectively said that Burge should have corrected the original sentencing entry and had no power to reopen the cases to resentence Smith and Allen.
In addition to the plans to take the case to the U.S. Supreme Court and ask Kasich for clemency, Bradley also said that once Burge corrects the sentencing entries, he plans to ask for a new trial for Smith.
He said he plans to introduce new evidence that he hopes will lead to Smith being cleared of the allegations she took 4- and 5-year-old students from her Head Start bus route to Allen’s Lorain home to be sexually abused.
Although Bradley declined to discuss the new evidence in detail, he said that tapes secretly made by Smith’s daughter, Amber Bronish, in which Lorain Police Chief Cel Rivera expresses doubts about whether Smith is actually guilty are part of that evidence.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.