Monday, November 20, 2017 Elyria 40°


Nancy Smith in court today to face return to prison


ELYRIA — Nancy Smith said Monday she can’t believe she’ll be back in a Lorain County courtroom today facing a possible return to prison after a little more than two years of freedom.

“I just can’t believe that this is happening all over again,” Smith said. “I just put my faith in God and keep moving forward.”

Smith’s attorney, Jack Bradley, said he intends to ask county Common Pleas Judge James Burge during today’s hearing to hold off taking any action in the controversial Head Start child molestation case while the Ohio Supreme Court reconsiders its decision overturning Burge’s acquittal of Smith.

“The appellate process is still going on,” Bradley said. “These have to be decided before any court has jurisdiction to go forward.”

Burge — who has said he has no choice but to obey the Supreme Court’s order — and Bradley both asked the Supreme Court to revisit its decision in court documents filed Monday. The Ohio Public Defender’s Office filed an amicus curiae — Latin for “friend of the court” — brief supporting Burge.

The Supreme Court decision, handed down last month, found that Burge “patently and unambiguously lacked jurisdiction” to acquit Smith.

In his court filing, Bradley strongly disagreed, arguing that Smith was wrongly convicted once and could be returned to prison by a mistake made by the seven justices on the Supreme Court.

“Smith was initially wrongly sent to prison because, as found by (Burge), twelve individuals erroneously found proof beyond a reasonable doubt from the evidence produced at trial,” Bradley wrote. “It is Smith’s respectful contention that seven individuals have erred, to the danger of re-sending Smith back to prison.”

Following their 1994 trial, Smith was consigned to prison for 30 to 90 years, while co-defendant Joseph Allen was sentenced to serve five consecutive terms. But the original entries failed to note that the pair was convicted by a jury, language required by law to be in the entries.

After ordering new sentencing hearings, Burge acquitted both Smith and Allen, saying he believed they were wrongly convicted. Smith — who, like Allen, has maintained her innocence — was accused of taking 4- and 5-year-old children on her Head Start bus route to Allen’s home, where the children were sexually abused.

Prosecutors, however, contend Burge didn’t have the authority to do anything more than issue corrected sentencing entries, and the Supreme Court ultimately agreed.

Had Burge’s ruling been allowed to stand, county Prosecutor Dennis Will and the Ohio Attorney General’s Office argued, it could have potentially reopened thousands of closed cases across the state.

The Supreme Court decision didn’t specifically address Allen’s case, effectively leaving in place an order from the 9th District Court of Appeals that overturned Allen’s acquittal. The same appeals court decision upheld the Smith acquittal.

The difference in the two cases is that after the verdict was handed down, Bradley asked Burge’s predecessor, now-retired Judge Lynett McGough to throw out the finding of guilt. Allen’s trial lawyer, Joe Grunda, made no such request.

In his motion asking the Supreme Court to reconsider, Burge argued that previous court rulings offered contradictory solutions to dealing with the flawed sentencing entries, leading him to believe he had the option to either hold new sentencing hearings or issue new entries.

“Judge Burge based his actions at the time on law that, at the very least was ambiguous, and at best, pointed to his authority to hold a resentencing hearing and review Smith’s motion for acquittal prior to said resentencing,” Burge’s motion said.

Even if he was wrong when he cleared Smith, the judge argued, the acquittal itself should stand because of long-standing legal precedence that holds that acquittals are final and can’t be reversed.

A Supreme Court decision handed down in December left in place acquittals on some of the charges in a Summit County murder case, even though the high court found the judge in that case erred when he did so, Burge’s motion said.

In his court filings, Bradley also argued an acquittal can’t be overturned.

“The trial court’s acquittal of Ms. Smith is a final verdict that cannot be reversed although the State may appeal the ‘substantive issue or legal conclusion’ underlying the acquittal for clarity of future litigation,” Bradley wrote.

In addition to his legal arguments, which included pointing out that prosecutors didn’t disagree that there was a problem with the original sentencing entry in Smith’s case, Bradley also focused on what Smith lost during the 14 years she spent in prison.

“Sentencing to prison meant more than mere incarceration, more than just the loss of freedom,” Bradley wrote. “It also meant separation from her family; a brother, sisters, daughters and sons, eventually thirteen grandchildren. Mr. Smith missed graduations, birthday parties, weddings and funerals.”

Bradley and K. Ronald Bailey, Allen’s attorney, have promised to continue fighting to keep their clients free all the way to the U.S. Supreme Court if necessary.

Contact Brad Dicken at 329-7147 or

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