September 17, 2014

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Prosecutor says he’ll agree to commute Nancy Smith’s sentence to time served

Lorain County Prosecutor Dennis Will said Tuesday he won’t oppose commuting Nancy Smith’s sentence in the controversial Head Start child molestation case to time served when her clemency application goes to a hearing of the Ohio Parole Board early next year.

Smith

But Will said he won’t back a full pardon for Smith, who has long maintained she’s innocent of allegations she and Joseph Allen molested students on her Head Start bus route in the 1990s. Smith was originally sentenced to 30 to 90 years in prison.

Allen, who also has continued to insist he’s innocent, was sentenced to five life terms after a jury convicted him and Smith.

Both Smith and Allen had been freed because of a technical flaw in the court orders sentencing them to prison and were awaiting new sentences when county Common Pleas Judge James Burge acquitted them in 2009.

“I have absolutely no confidence that these verdicts are correct,” Burge said at the time.

The Ohio Supreme Court later determined that Burge had overstepped his authority when he acquitted the pair, who spent 15 years behind bars, but Smith and Allen have remained free despite the ruling.

Smith’s attorneys asked Ohio Gov. John Kasich for clemency earlier this year, pointing to flaws in the police investigation and statements from co-workers who insist Smith couldn’t have committed the crimes she was convicted of.

Will said he has always been open to reviewing new evidence in the case, but Smith’s attorneys never brought him anything that would lead him to believe she was wrongly convicted.

He said in the end he contacted former county Prosecutor Greg White and retired Common Pleas Judge Lynett McGough, who presided over the 1994 trial, the two people he believed had the most knowledge of the case to get their opinions.

“They felt commutation of sentence at 15 years they would not oppose that, but they would oppose a pardon,” Will said.

White, now a federal magistrate judge, said the case has already been through the appeals process and federal court proceedings that didn’t lead to the original verdict being reversed. But he also said that he wouldn’t object to commuting the sentence.

Parole Board spokeswoman JoEllen Smith, who isn’t related to Nancy Smith, said the board has reviewed the documentation provided by Nancy Smith’s attorneys in her clemency application and conducted its own investigation.

She said the Parole Board could have either recommended that the clemency application be denied or held a formal hearing. She said the board opted for the later and a hearing is scheduled for Jan. 29.

Jack Bradley, Nancy Smith’s longtime attorney, said he’s pleased with the decision to hold the hearing and with Will’s position on the matter.

Although he would prefer a pardon, Bradley said the most important thing is to keep Smith from being returned to prison.

“Whatever keeps Nancy at home with her children and grandchildren is fine with me,” he said.

Following the hearing, the Parole Board will make a recommendation to Kasich on what they believe should be done with Smith’s case. Kasich could reject the clemency application, commute the sentence or grant a full pardon.

This won’t be Smith’s first time before the Parole Board, which rejected her first chance at parole in 2007 after she refused to acknowledge she had committed the crimes she was convicted of.

The Parole Board member who interviewed Smith five years ago felt she was “in denial,” a spokeswoman said at the time. But the same Parole Board member wrote in her report that she didn’t feel Smith had spent enough time behind bars. She recommended that Smith spend at least 15 years in prison before being released.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.