COLUMBUS — Lorain County Common Pleas Judge James Burge broke down this morning as he urged the Ohio Parole Board to grant Nancy Smith clemency in the controversial Head Start child molestation case.
Burge, who acquitted Smith and her codefendant Joseph Allen in 2009, said that he spent 31 years as a criminal defense attorney and while he sometimes won victories in the courtroom that didn't mean his clients were innocent. Smith is, he said.
"Seldom did I ever speak for an innocent woman or man," Burge said, his voice breaking. "Today I can."
Burge recounted how he reviewed the transcripts from the 1994 trial, the police report and watched the questionable interview techniques employed by police during the investigation before he became convinced of Smith and Allen's innocence.
Maggie Bruck, a development psychologist at Johns Hopkins University who specializes in childhood memory, told the Parole Board that the questioning Lorain police and others subjected the alleged victims in the case were highly suggestive.
Even when the children, who were 4- and 5-years-old when they were allegedly molested, denied they were touched inappropriately or gone anywhere on Smith's bus other than school, the interviewers planted seeds that would eventually grow to become acknowledgement of molestation during later interviews, Bruck said.
"It permeates the whole case," Burck said of the problems with the interview techniques, which she said are no longer used. They have the danger, she said of making those being questioned want to please their questioner and even creating false memories.
Sharon Katz, one of Smith's attorneys, urged the Parole Board to declare Smith innocent by recommending a full pardon to Ohio Gov. John Kasich.
Prosecutors have said they won't oppose clemency in the case, but have stopped short of endorsing a full pardon. If Kasich were to grant clemency, he would effectively commute Smith's sentence to time served.
Smith spent 14 1/2 years behind bars before Burge freed her in 2009, a decision the Ohio Supreme Court has ruled was improper.
Katz said it was telling that no one, including prosecutors, has pushed for Smith to be returned to prison.
Smith is expected to speak to the Parole Board, which rejected her parole bid in 2007 because she refused to acknowledge her guilt, when the hearing continues this afternoon.
Read Wednesday's Chronicle for more on this story.