ELYRIA - Lorain County Prosecutor Dennis Will and Ohio Attorney General Richard Cordray have asked the Ohio Supreme Court to review an appeals court decision that upheld part of county Common Pleas Judge James Burge's decision acquitting Nancy Smith and Joseph Allen in the controversial Head Start child molestation case.
The Ohio Supreme Court hasn't formally accepted the appeal request from prosecutors, but it has asked for the case file to be sent to Columbus, according to court records.
Last month, the 9th District Court of Appeals ruled that Burge had the authority to acquit Smith, but couldn't do the same for Allen.
Before he acquitted the pair last year, Burge had agreed to resentencing hearings for Smith and Allen because the original sentencing entries in their case didn't note that they had been convicted by a jury during their 1994 joint trial.
Instead of holding the new hearings, however, Burge acquitted Smith and Allen, saying he had no confidence they were guilty of molesting 4- and 5-year-old children on Smith's Head Start bus route in the early 1990s.
But the appeals court said that Burge was entitled to acquit only Smith because her trial lawyer had asked Burge's predecessor, former county Judge Lynett McGough, to acquit his client after the jury handed down its verdict.
Allen's attorney didn't make the same request, and thus Burge lacked the power to acquit him, the appeals court said in its decision. The decision also ordered Burge to have a resentencing hearing for Allen, who was serving five consecutive life prison terms when he was freed last year.
Burge already has said he will appeal the portion of the ruling that applies to Allen and will fight Will's efforts to overturn the appeals court decision as it applies to Smith.
"The appeal in the Nancy Smith case involves me as a party, and I will defend my decision," Burge said.
Jack Bradley, Smith's attorney, said he was upset that prosecutors are continuing their efforts to return his client to prison. She had been serving a 30- to 90-year prison sentence when Burge freed her.
He said Burge ruled correctly.
"It wasn't based on a whim," Bradley said. "It was based on good case law."
Will has argued that Burge shouldn't have agreed to hold a new sentencing hearing, let alone acquit Smith and Allen.
The proper fix for the incorrect sentencing entries, Will contends, would have been a new sentencing entry. The Ohio Supreme Court ruled earlier this week in a Mahoning County rape case that a corrected sentencing entry rather than a hearing would have been the proper way to address the problem.
Although the Mahoning County case doesn't apply directly to the Head Start case, prosecutors plan to use it in their arguments before the Supreme Court, Will has said.
Bradley said he had hoped that Will would drop the fight to return Smith to prison.
"I want Nancy Smith to be left alone," he said. "It's like a wound, and he just keeps taking the scab off. It's time to let the wound heal."
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.