December 18, 2014

Elyria
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VIDEO: Agreement changes Nancy Smith’s sentence in Head Start molestation case to time served

ELYRIA — Nancy Smith isn’t going back to prison.

On Tuesday, the 56-year-old former Head Start bus driver reached a deal with prosecutors that removed the 30-to-90-year prison sentence that has loomed over her since Lorain County Common Pleas Judge James Burge released her from prison in 2009.

Visiting Judge Virgil Sinclair, who approved the sentencing agreement, reduced Smith’s sentence to 12 years in prison and gave her credit for time served.

Since she has already served nearly 15 years behind bars, Smith won’t have to return to prison to serve any more time.

“It’s always been about my freedom and the truth and that will come,” Smith said as she alternated between tears and smiles while hugging family, friends and lawyers in front of a church near the Lorain County Justice Center after the hearing.

Smith and co-defendant Joseph Allen have long denied that they molested 4- and 5-year-old children on Smith’s bus route in the early 1990s. Allen is due in court for a new sentencing hearing June 27.

The deal

Although the sentencing agreement stated that there had been enough evidence to convict Smith at trial, her lawyers, Sharon Katz and Jack Bradley, were quick to point out that the agreement in no way amounted to an admission of guilt by Smith, who once again becomes a convicted felon.

Katz said Smith has accepted that she was convicted by a jury, even if she still maintains her innocence.

“It’s more important that she not go to prison. …” Katz said. “This is a partial justice.”

During her 1994 trial, a jury convicted Smith of rape, attempted rape and two counts each of complicity to rape and gross sexual imposition, but under the terms of the agreement, the various rape charges were reduced to gross sexual imposition. The 12-year sentence was technically comprised of six consecutive two-year prison terms.

Smith won’t have to register as a sex offender because the law in effect at the time of her sentencing only required sexual offenders with prior sex convictions to register, Bradley said. Smith had a clean record before the Head Start case and because she was free at the time of Tuesday’s hearing, she can’t be required to register under laws passed after she was convicted.

Smith also agreed not to appeal her conviction or sentence and gave up her right to sue over the case, including filing a lawsuit for wrongful imprisonment.

“I just wanted to put it behind me and not have to go back to prison,” Smith said after the hearing.

But the agreement does allow Smith to continue her bid to win a full pardon from Gov. John Kasich, who is awaiting a recommendation from the Ohio Parole Board, which held a hearing on the case in January.

Katz said that the option of Kasich commuting the sentence to time served, something county Prosecutor Dennis Will has supported, was effectively negated by Tuesday’s agreement.

Will said he saw the agreement as an outgrowth of what he had agreed to back when it came to executive clemency, a position supported by former county Prosecutor Greg White, former county Judge Lynett McGough and Lorain Police Chief Cel Rivera, all of whom were involved in the investigation and trial that led to Smith’s conviction.

“I took a position that was consistent with what we took at the Parole Board, and it was sufficient to resolve the matter,” Will said.

Will has opposed a full pardon for Smith and hasn’t taken a position on Allen’s clemency request, which was filed earlier this year.

New trials

Bradley praised Will and Assistant County Prosecutor Tony Cillo for their work in helping frame out Tuesday’s agreement. He said it was Cillo who suggested that Smith’s legal team file a motion for a new trial, a legal maneuver that gave Sinclair the legal authority to alter what Smith was convicted of.

The request for a new trial — which was dismissed as part of the sentencing agreement — centered on allegations that the interviews of the children who accused Smith of molesting them were tainted not only by their parents and media coverage, but also by the interview techniques used by investigators.

Those same complaints have been raised by Smith’s supporters over the years, especially after videotapes of the interviews and lineups conducted by Lorain police surfaced in the late 1990s. Jurors in the original trial never saw the tapes.

This time around that criticism was supported by a review conducted by Maggie Bruck, a professor of psychiatry and behavioral sciences at Johns Hopkins Medical Institutions.

Bruck wrote in a lengthy affidavit that the interviews were plagued by problems ranging from parents answering questions to investigators rejecting answers by children that didn’t support their theories in the case. Her affidavit is also the driving force behind a similar new trial request filed by Allen’s attorney, K. Ronald Bailey, who did not return a call seeking comment Tuesday.

Bradley said although he doesn’t represent Allen, he believes there is an effort under way to reach a similar deal for Allen, who received multiple life sentences in 1994. Will declined to comment on the status of Allen’s case.

The technicality

Smith and Allen had been in prison for nearly 15 years when Lorain County Common Pleas Judge James Burge freed them in 2009 while he considered how to address a technical flaw in their original sentencing entries, which failed to note the pair had been convicted by a jury.

Burge has said he planned to hold new sentencing hearings for the two and was reviewing the evidence in the case and the trial transcript when he became convinced that Smith and Allen had been wrongly convicted. He called both into court and acquitted them.

Prosecutors appealed and in 2011, the Ohio Supreme Court determined that Burge had overstepped his authority. All Burge could legally do, the state’s highest court ruled, was correct the problem with Smith’s sentencing entry.

The judge never addressed the issue, which would have meant a return to prison for Smith. During an appearance before the Parole Board earlier this year, in which he urged them to recommend a pardon for Smith, Burge said that Bradley and Cillo came to him and asked him to hold off taking any action until he heard from both of them.

Burge has said that Cillo denied saying that when he was questioned by the Ohio Supreme Court’s Office of Disciplinary Counsel, which is conducting a confidential inquiry into the judge’s handling of the Head Start case.

Citing what he called a “profound bias in favor of the defense,” Burge removed himself from the case in March.

“It’s a very happy day for me,” Burge said after Tuesday’s hearing and a quick visit from Smith to thank him.

Smith said she was grateful to everyone who has supported her.

Bradley said he thinks the deal will give Smith the peace she deserves after years in prison followed by living in fear that a knock on the door would spell an abrupt end to her freedom and the time she’s spent with her family, including grandchildren born while she was incarcerated.

“At least she can sleep at night without the fear of going back to prison,” he said.

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