ELYRIA — Joseph Allen’s attorney said Tuesday that he intends to ask Visiting Judge Virgil Sinclair Jr. to grant his client a new trial in the controversial Head Start child molestation case.
Attorney K. Ronald Bailey said he hopes to file the request later this week, and it will raise many of the same issues brought up by attorneys for Nancy Smith in a motion for a new trial filed Monday on behalf of the former bus driver.
Smith’s lawyers contend that improper interview techniques and other issues tainted the memories of the 4- and 5-year-old children who ultimately testified against Smith and Allen during their 1994 trial. Smith was sentenced to 30 to 90 years in prison while Allen received five consecutive life sentences.
Both Smith and Allen, who have long maintained their innocence, are due to appear in court June 4 and attorneys for both have said it’s possible Sinclair could order their clients back to prison.
The pair has been free since 2009 after Lorain County Common Pleas Judge James Burge ordered their release because of a technical flaw in their sentencing entries. He later acquitted them after reviewing the evidence in the case.
But the Ohio Supreme Court ruled in 2011 that Burge didn’t have the authority to acquit Smith. Burge has said that while he should have ordered Smith and Allen back to prison, he didn’t do so because Assistant County Prosecutor Tony Cillo and Jack Bradley, one of Smith’s attorneys, asked him not to take action until he heard from both of them.
Cillo denied saying that when questioned by the Ohio Supreme Court’s Office of Disciplinary Counsel as part of confidential inquiry into Burge’s handling of the case, the judge told the Ohio Parole Board in January. Burge, who has since removed himself from the case, was before the Parole Board to urge the panel to recommend clemency to Gov. John Kasich.
The Parole Board has yet to issue that recommendation in Smith’s case, and Allen only recently filed his own application for clemency.
Bailey said he’s hopeful that Sinclair will agree to delay correcting the flawed sentencing entries, which failed to note Smith and Allen were convicted by a jury, and allow the pair to remain free while the issue of a new trial is debated.
He said he doesn’t believe prosecutors would object.
County Prosecutor Dennis Will has said he won’t back a full pardon for Smith, but does support commuting her sentence to time served.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.