LORAIN — An application seeking clemency for Nancy Smith in the controversial Head Start child molestation case argues that Smith’s unwavering claims of innocence are bolstered by a recantation from one of her alleged victims, accounts of co-workers who insist she couldn’t have committed the crimes she was convicted of, and problems with the police investigation and how Smith’s lawyer mounted a defense during her 1994 trial.
Jack Bradley, Smith’s longtime attorney, said he hopes it’s enough to convince Gov. John Kasich to either pardon Smith or at least commute the remainder of her 30- to 90-year prison sentence.
But first Smith has to get through the Ohio Parole Board, which rejected her parole application in 2007 in part because she refused to acknowledge her guilt.
Ohio Department of Rehabilitation and Correction spokeswoman JoEllen Smith, who isn’t related to Nancy Smith, said Monday that the Parole Board’s review typically takes between four and seven months before a recommendation is made to Kasich.
Rob Nichols, a spokesman for Kasich, said the governor’s office is aware of the public interest but can’t offer a timeframe in which Kasich might make a decision. Nichols said he watched Sunday’s “Dateline: NBC” episode, which featured the Head Start case.
“We understand there’s a lot of attention on this case, and we’ll give it close consideration,” Nichols said Monday.
Lorain County Prosecutor Dennis Will has said he will decide how to respond to the clemency application, formally filed Friday, after he’s had a chance to review it.
Smith and her co-defendant, Joseph Allen, have been free since early 2009 when County Common Pleas Judge James Burge agreed to review a technical flaw in their original sentencing entries. Burge later acquitted the pair after reviewing the trial transcript and other evidence.
The Ohio Supreme Court later overturned Burge’s decision, ruling that he had overstepped his authority, and has effectively ordered Smith and Allen returned to prison. Burge has said he has taken no such action at the request of Bradley and prosecutors.
The clemency application doesn’t include Allen, who also continues to maintain his innocence.
William Oliver, who was 4 years old when he was a Head Start student in Lorain, wrote in a Sept. 16, 2011, affidavit included in the 270-page clemency application that he was not molested by either Smith or Allen.
Oliver, now 23 and serving time in an Idaho prison on a burglary charge, wrote that although he recalls incidents from the early 1990s, but has no recollection of being molested by Smith and Allen.
“I have no doubt that if I had been molested, I would remember such an event having occurred,” he wrote. “As a result, I am confident that I was never molested by Joseph Allen or Nancy Smith.”
Oliver also wrote that he was molested, but that was in 2000, while he was in foster care.
“This event was terrible and extremely traumatic. It became seared in my memory and I remember it very well,” he wrote. “As a result, this experience made me even more confident that if I had been molested in 1992 or 1993, I would remember it today.”
Oliver placed the blame on his mother, Emily Oliver, who he wrote told him for the past two decades that he had been a victim of sexual abuse.
He goes on to accuse Emily Oliver, who he wrote wasn’t actually his birth mother, but rather took him as an infant from his real mother, of being addicted to painkillers. William Oliver said during the time he was supposed to have been molested and during Smith and Allen’s trial that Emily Oliver was abusing large amounts of painkillers.
During a lineup in which police were asking William Oliver to identify the man who had molested him, the boy identified everyone but Allen.
Emily Oliver later said during the trial that her son didn’t pick Allen because he was afraid of the man, according to the clemency application.
The lineups, conducted by Lorain police, including now-Police Chief Cel Rivera, who has expressed his own doubts about Smith and Allen’s guilt, have long been the subject of controversy.
The clemency application, which was filed by the Ohio Innocence Project and a New York City law firm on Smith’s behalf, noted that several children brought in to view the lineup identified men other than Allen as their molester. In one instance, the application said, the father of one of the victims in the case whispered in his son’s ear who to point out and the boy pointed to Allen.
“This videotape was never shown to the jury and would have demonstrated the extent of contamination and coaching present during this investigation,” the application said.
The application also said that the interview techniques used by police were highly suggestive and that the children’s memories of events may have been further contaminated by questioning parents in front of children, allowing parents to question other children and allowing the victims to go to group therapy sessions.
The clemency application includes four reports on psychiatric evaluations performed in 1998 on four of the students who were considered victims of Smith and Allen.
Kathleen Quinn, the psychiatrist who conducted the evaluations, concluded that there were serious problems with how the children were questioned by the authorities.
“Professional interviewing was characterized by the pursuit by adults to confirm their assumptions, challenging and disbelief of data not consistent with these assumptions and a lack of professional neutrality,” Quinn wrote in one report. “Questions were leading and specific, and often occurred after adult discussions of the allegations in front of (the girl).”
In another report, dealing with a child who had developmental problems, Quinn wrote that those issues weren’t given proper weight in the context of the investigation and that other factors led to problems with the boy’s version of what happened.
“Professionals failed to appreciate major inconsistencies in the accounts or the significant difference in their interviews and the parental reports. When (the boy) was questioned by professionals, the questions were leading and highly specific,” Quinn wrote. “Parental contamination continued with the use of media data.”
In addition to criticizing the investigation of the highly publicized case, the clemency report also takes issue with how Bradley handled Smith’s trial, including his decision not to place aides and others who worked with Smith on her bus route on the stand.
Sherry Hagerman, one of Smith’s bus aides, wrote in an affidavit that she never saw Smith do anything improper and that she and other aides had wanted to testify on Smith’s behalf.
“Had I been called to testify, I would have testified that I worked as a bus aide on Nancy Smith’s bus on the morning, afternoon and evening routes on May 7, 1993. As a result I know that Nancy dropped all of the children on her bus off at school and retuned them home on time, just like every other day,” Hagerman wrote.
Bradley said Monday that the indictment of his client covered a six-month period time and not just the date of May 7, 1993, when the molestation was supposed to have occurred. He said he feared during the trial that had he been unable to account for even one of those days it would have looked worse for Smith.
“I never got any discovery that said it was on a particular date,” he said.
Bradley also said that the reason he never got the reports completed by then-Lorain police Detective Tom Cantu, the original investigator on the case, was that in 1993 he wasn’t entitled to all the police reports. In an affidavit included with the clemency, Cantu wrote that he came to the conclusion that the alleged victims in the case hadn’t been molested and he recommended that the case be closed before he was transferred to a new assignment.
Although defense attorneys are now entitled to review all of the evidence in a case that prosecutors have that wasn’t how it was in 1993, Bradley said. At the time, defense lawyers relied on prosecutors to turn over evidence that prosecutors thought might help clear a defendant.
The interview tapes, for instance, Bradley said he didn’t get until the trial had already started and when he asked then-County Common Pleas Judge Lynett McGough to allow the jury to see them she refused.
Bradley said he doesn’t have a problem with being second-guessed, but he’s done a lot over the years to help Smith, including filing the motions with Burge that led to her release three years ago.
“I’d like to think if I’ve made mistakes I’ve done my best to rectify them by staying involved in this case,” he said.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.