November 20, 2014

Elyria
Flurries
25°F
test

Nancy Smith petitions Parole Board for pardon

COLUMBUS — Nancy Smith sobbed, but never wavered, during her appearance Tuesday before the Ohio Parole Board to ask them to recommend that Gov. John Kasich grant her a full pardon in the controversial Head Start child molestation case.

Smith

“I’m not a sex offender. I did not commit this crime against these kids,” Smith said through tears when a Parole Board member asked her about the possibility that she could have to register as a sex offender if her sentence were commuted and her conviction remained on her record.

The 55-year-old grandmother broke down completely at the thought that rules could be put in place barring her from seeing her grandchildren, all but one of whom were born while she was in prison. Smith said she baby-sits her grandchildren every week.

Smith called a sex offender notification sent out after she was freed from prison after 14½ years behind bars the most humiliating experience of her life. Smith was briefly required to register as a sex offender before Lorain County Common Pleas Judge James Burge acquitted her and co-defendant Joseph Allen in 2009.

Smith was convicted during a 1994 trial of charges that she and Allen, whom she insists she never met before their joint trial, sexually abused 4- and 5-year-old children on her Head Start bus route in the early 1990s.

Both she and Allen have maintained their innocence since the allegations were first leveled. They were both sentenced to lengthy prison terms and were still incarcerated when Burge ordered their release in 2009 while he considered how to correct a technical flaw in their sentencing entries.

But instead of resentencing the pair, Burge acquitted both Smith and Allen after reviewing the trial transcript and evidence gathered by police during their investigation, including videotaped interviews of the alleged victims that jurors never saw.

Burge said when he acquitted Smith and Allen that he had no confidence the guilty verdict was correct.

He said Tuesday that he spent 31 years as a criminal defense attorney and while he sometimes won acquittals in the courtroom, that didn’t mean his clients were innocent.

“Seldom did I ever speak for an innocent woman or man,” Burge said, his voice breaking with emotion. “Today I can.”

The Ohio Supreme Court later ruled that Burge overstepped his authority when he acquitted Smith. Although he was allowed to correct the problem with the sentencing entry in the case, which failed to note that Smith was found guilty by a jury, he lacked the power to change the original sentence or acquit her, the state’s highest court determined.

Burge also told the Parole Board that there were few other avenues other than clemency left open for Smith, who, like Allen, has exhausted her appeals. He said in order to reopen the case, there would need to be new evidence, something he doubted would happen.

“In a case like this, there is never going to be new evidence that nothing happened,” he said.

Burge said he was ashamed of what the justice system had done to Smith and after reviewing the case felt that he had to right a wrong.

“I did it because I knew it was right and I wouldn’t be able to shave the following morning if I hadn’t done it,” the judge said.

He said he would back clemency for Allen as well if Allen were to apply for it.

Maggie Bruck, a developmental psychologist at Johns Hopkins University who specializes in childhood memory, told the Parole Board that the questioning to which the alleged victims in the case were subjected by Lorain police and others was highly suggestive.

Even when the children denied they were touched inappropriately or had gone anywhere on Smith’s bus other than school, the interviewers planted seeds that would eventually grow to become acknowledgement of molestation during later interviews, Bruck said.

“It permeates the whole case,” Bruck said of the problems with the interview techniques, many of which she said are no longer used. Those techniques have the danger, she said, of making those being questioned want to please their questioner and even creating false memories.

Lorain County Prosecutor Dennis Will, who wasn’t at Tuesday’s hearing, has previously said he wouldn’t oppose clemency for Smith, although he doesn’t back a full pardon in the case.

Assistant Lorain County Prosecutor Richard Gronsky said Will wasn’t involved in the original trial but consulted several people who were, including then-county Prosecutor Greg White, the original trial judge, now-retired Judge Lynette McGough, and Lorain Police Chief Cel Rivera, none of whom objected to Smith’s sentence being commuted to time served.

Some Parole Board members said they found that position surprising given that those same people have urged the board to reject parole for other defendants, some of whom have been convicted of less-serious crimes.

Parole Board member Rich Cholar called the position “inconsistent.”

“It sounds like there is some concern about the basis of convictions,” Cholar said.

Gronsky said Smith was convicted by a jury of her peers and that conviction has been upheld on appeal. Although he said Smith’s supporters have raised questions about the case, Gronsky added there’s been no new evidence brought forward that would cast doubt on the convictions of either Smith or Allen.

“None of the victims have recanted in this case,” he said, although he acknowledged later in the hearing that any of those involved in the case who were adults at the time and changed their stories now could open themselves up to prosecution on perjury or falsification charges.

Sharon Katz, one of Smith’s lawyers, argued that beyond the questionable interview techniques used by police, there were other serious problems in the case, including how Jack Bradley, Smith’s trial lawyer, performed and the evidence that was turned over by prosecutors.

For instance, she said Bradley, who has admitted missteps, failed to call to the witness stand a bus aide who would have testified that she was with Smith on the bus May 7, 1993, when prosecutors contend some of the molestations took place.

Smith said there was always either an aide or a parent on the bus with all of the bus drivers doing the Head Start runs.

Katz also pointed to records that showed the students weren’t absent at the same time and Smith’s schedule, which she said was so busy it wouldn’t have allowed her time to take children to Allen’s house to be molested.

Gronsky said the decision not to oppose commutation was driven in part by Smith demonstrating during the four years she has been out of prison that she can be a productive member of society. But he also said he would like to see her fall under some form of state control even if she were granted a commutation.

Parole Board Chairwoman Cynthia Mausser said that she isn’t certain that would be something that could happen. But she also said that if Kasich were to reject clemency and Smith was ordered back to prison, she would immediately become eligible for parole.

Smith’s last bid before the Parole Board in 2007 was rejected after she refused to admit her guilt. The Parole Board member who interviewed Smith at the time said she was in “denial.”

Katz said Smith is innocent and deserves a full pardon from Kasich.

“Nancy is not fully free,” Katz said. “There is a very heavy dark cloud that hangs over her.”

Mausser said the Parole Board will make a recommendation to Kasich within the next two months.

Case timeline

  • May 1993 — The first allegations of sexual misconduct are reported to Lorain police, launching an investigation that spans months and draws massive publicity.
  • Nov. 10, 1993 — Head Start bus driver Nancy Smith is indicted on charges of gross sexual imposition, attempted rape, rape and complicity to rape. She is accused of taking 4- and 5-year-old children on her bus route to the Lorain home of Joseph Allen, where the pair allegedly molested them. Allen is indicted on compelling prostitution, rape and felonious sexual penetration charges.
  • May 11, 1994 — Smith indicted on an additional gross sexual imposition charge. Allen indicted on additional charges of compelling prostitution, rape and gross sexual imposition.
  • July 25, 1994 — Smith’s attorneys make a motion for separate trials for her and Allen, claiming Allen’s prior criminal record will keep Smith from receiving a fair trial. Then-Lorain County Common Pleas Judge Lynett McGough rejects the request.
  • Aug. 3, 1994 — Smith and Allen convicted of the charges against them on the ninth day of their jury trial. McGough sentences Smith to 30 to 90 years in prison. Allen receives five consecutive life sentences.
  • July 17, 1996 — Lawsuit filed against Lorain County Community Action Agency by the victims in the case.
  • Jan. 25, 1996 — Smith’s conviction upheld by the 9th District; the Ohio Supreme Court later declines to hear the case.
  • Jan. 24, 1997 — A second lawsuit is filed against the Lorain County Community Action Agency, but it is merged with the initial lawsuit.
  • Aug. 27, 1997 — Allen’s conviction is upheld by the 9th District Court of Appeals. The Ohio Supreme Court later declines to hear the case.
  • Jan. 28, 1998 — Smith’s conviction is again upheld by the 9th District.
  • May 11, 1998 — Chronicle-Telegram columnist Paul Facinelli, who had written about the Smith case extensively, sues then-Chief Assistant County Prosecutor Jon Rosenbaum.
  • May 12, 1998 — Facinelli fired from The Chronicle over the lawsuit.
  • June 4, 2003 — Judgment entered for plaintiffs against LCCAA in the civil lawsuit. The victims were awarded $1.5 million each.
  • July 16, 2003 — Smith’s attempt to reopen her appeals case rejected by the 9th District.
  • Feb. 20, 2007 — The Ohio Parole Board declines to grant Smith parole at her first hearing, saying that Smith is in “denial” because she won’t admit that she’s guilty of the charges she was convicted of.
  • Feb. 4, 2009 — Smith is released from the county jail after county Common Pleas Judge James Burge finds that Smith is entitled to a new sentencing hearing because of a technical problem with the original hearing. He sets bond at $200,000 and Smith is freed about two hours later after a childhood friend puts up three pieces of property as collateral for her bond.
  • June 24, 2009 — Judge James Burge throws out the cases against both Allen and Smith, effectively acquitting them of the charges.
  • Oct. 7, 2009 — An appeals court rules that Burge’s acquittals should stand.
  • June 30, 2010 — The 9th District Court of Appeals rules in favor of Smith’s acquittal but in the same decision says that Allen should be resentenced because Burge was not permitted to acquit Allen.
  • Jan. 27, 2011 — In a unanimous decision, the Ohio Supreme Court overturns Burge’s acquittals and orders Smith and Allen back to prison.
  • April 2012 — The Head Start molestation case is featured in an NBC “Dateline” documentary. Nancy Smith files for clemency before the parole board.
  • Jan. 29, 2013 — Smith appears before the parole board in a clemency hearing.

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