ELYRIA — Lorain County Prosecutor Dennis Will has asked the Ohio Supreme Court to take on two more appeals in the controversial Head Start child molestation case.
At issue in the appeals decisions involving Nancy Smith and Joseph Allen, Assistant County Prosecutor Billie Jo Belcher wrote in court documents, is whether there can ever be finality in criminal cases.
Smith and Allen were able to use a technicality — one that prosecutors argued could have been corrected simply by writing out a new sentencing entry — to return their cases to the trial court for new sentencing hearings.
Lorain County Common Pleas Judge James Burge had planned to hold such hearings before he threw out Smith’s and Allen’s convictions because his review of the evidence led him to believe the two weren’t guilty.
Belcher wrote that criminal defendants have been using a 2008 Ohio Supreme Court decision to “circumvent finality” in the criminal justice system even when their appeals have been exhausted.
She wrote that the unintended consequence of the 2008 decision, which dealt with how sentencing entries should be properly prepared, was that if defendants failed in their appeal efforts once, they could simply try again by having their sentencing entries declared invalid.
If the Supreme Court doesn’t take the cases, she wrote, then that problem will continue.
Will said if Burge’s decision to hold new hearings because of the technical problems is allowed to stand, it could have dire consequences for finality in criminal cases across the state.
“This reaches further than just these two cases,” he said.
The Ohio Supreme Court already is reviewing a decision from the 9th District Court of Appeals that upheld Burge’s decision to acquit Smith of molesting 4- and 5year-old children on her Head Start bus route in the early 1990s.
In the same decision, the appeals court rejected Burge’s ability to acquit Smith’s codefendant, Allen. Burge has said he will fight the appeals court order that he return Allen to prison.
That decision came in a lawsuit filed by Will and Ohio Attorney General Richard Cordray in an effort to overturn Burge’s decision to acquit Smith and Allen, who always have maintained their innocence.
Because that case began in the appeals court, it can automatically be appealed to the Supreme Court.
But the appeals court also handed down decisions in appeals cases filed by Will’s office challenging Burge’s acquittals of Smith and Allen, and the Supreme Court must decide whether or not to hear those cases.
In Allen’s case, the appeals court ruled that the appeal in Allen’s case was moot because of its other decision, while the Smith decision effectively mirrored what the appeals court said in its decision to leave Smith’s acquittal in place and effectively ordered Allen back to prison.
The appeals court ruled in its primary decision that because Smith’s lawyer, Jack Bradley, asked Burge’s predecessor, retired county Judge Lynett McGough, to acquit his client after the trial was over, Burge was able to throw out her conviction after a technical error in Smith’s sentencing entry returned the case to Burge’s court.
Although Allen’s sentencing entry contained the same error as Smith’s — neither said the co-defendants had been convicted by a jury — Burge couldn’t acquit Allen because his trial lawyer didn’t make the same request after jurors handed down their guilty verdicts.
Jack Bradley, Smith’s attorney, said he will oppose Will’s request to appeal the 9th District’s decision on Smith’s case.
“They want the Supreme Court to reverse themselves,” he said. “Prosecutors never like decisions in which they lose. We used to be a country of precedents that would last for centuries, but I guess two years is long enough now.”
If prosecutors don’t like the way the law works, they should make sure sentencing entries are filled out correctly, Bradley said.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.