ELYRIA — Citing newly discovered evidence of children’s testimony being tainted by improper interview techniques, Nancy Smith’s attorneys filed paperwork Monday asking for a new trial for the former bus driver at the center of the controversial Head Start child molestation case.
Smith’s lawyers also asked Visiting Judge Virgil Sinclair Jr. to put off holding a hearing in which he would correct the flawed sentencing entry that Lorain County Common Pleas Judge James Burge used in 2009 as a basis to reopen the cases of Smith and her co-defendant Joseph Allen, both of whom he acquitted after reviewing the evidence in the case.
The requests come two weeks before a hearing at which Sinclair has ordered Smith and Allen to appear in court for the first time in years.
Jack Bradley, Smith’s longtime lawyer, said Monday that it’s possible that Sinclair could order his client back to prison at the hearing.
“All the judge has ever really told us is that he has an order from the Ohio Supreme Court that he intends to carry out, but he has also said that he will consider all appropriate motions,” Bradley said.
In 2011, the Ohio Supreme Court ruled that Burge didn’t have the power to acquit Smith, nor could he change her sentence of 30 to 90 years in prison. All he could do was correct the sentencing entry, which failed to note Smith had been convicted by a jury, the state’s highest court decided.
Burge, who never ordered either Smith or Allen back to prison, removed himself from the case earlier this year following an appearance before the Ohio Parole Board in which he urged the panel to recommend that Ohio Gov. John Kasich grant Smith clemency.
The Parole Board has not yet issued a recommendation because it requested additional information from the parties involved, spokeswoman JoEllen Smith said Monday. She also said it was possible the recommendation could have been delayed because Allen has only recently filed his own clemency application.
In the court filings, Smith’s attorneys wrote that there were numerous reasons to allow Smith to remain free while the judge considers her request for a new trial, including her clean criminal record since her release and that even prosecutors support her bid for clemency.
“No one wants Ms. Smith to be returned to prison,” attorney Sharon Katz wrote. “Dennis Will, the Lorain County Prosecutor, Greg White, the prosecutor at the time of Ms. Smith’s conviction, Judge Lynett M. McGough, who presided over Ms. Smith’s trial, and Cel Rivera, the police chief of Lorain, who was closely involved in the investigation, have all stated that they do not oppose a complete commutation of Ms. Smith’s sentence.”
Will has said while he doesn’t oppose clemency, he won’t back a full pardon for Smith.
Will said he has always been willing to review new evidence in the case, but has yet to see anything that would justify a new trial.
Katz also wrote that “returning Ms. Smith to a prison cell would perpetuate a grave injustice” and the law supports Smith being granted a new trial and if that trial goes to a jury, he being acquitted based on the evidence of tainted testimony.
“The primary evidence against Ms. Smith was the testimony of four young children,” Katz wrote in the motion for a new trial. “The prevailing view at the time was that children could not make up stories about bizarre, ritualistic sexual abuse. Indeed, children’s denials that they had been subject to such abuse were viewed as admissions of abuse.”
The court filings also contain an extensive affidavit from Maggie Bruck, a professor of psychiatry and behavioral science at John Hopkins Medical Institutions, who reviewed the taped interviews of the children Smith and Allen were accused of abusing and other evidence in the case. Jurors who convicted Smith and Allen in the 1990s never saw those tapes.
Bruck wrote that the interview techniques used by investigators such as the use of dolls, repetitive questions and investigators rejecting what they believed to be the incorrect answers to questions, irreparably contaminated the memories and testimony of the 4- and 5-year-old children Smith and Allen were accused of molesting.
Those problems were exacerbated by the coaxing of parents and news reports on the investigation, wrote Bruck, who also testified on Smith’s behalf before the Parole Board in January.
For instance, Katz wrote, the daughter of Margie Grondin, told police during three separate interviews in May 1993 that she was not molested.
“However, she was contradicted by her mother, who made detailed, extensive accusation against Nancy Smith and ‘Joseph,’ frequently answering questions directed at (her daughter),” Katz wrote. “When (the daughter) spoke, she ‘had to be coaxed by her mother’ and often provided incoherent and illogical responses.”
Bruck noted that the children’s accounts of who molested them and where the molestation took place shifted because of the actions of their parents and news reports.
Two other men were identified as being Smith’s accomplice because of the contamination before police settled on Allen, Bruck wrote.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.