Tomlinson reviewing 1994 Head Start abuse convictions

ELYRIA — Lorain County Prosecutor J.D. Tomlinson is considering going to court to request that the criminal convictions of Joseph Allen and Nancy Smith, convicted of child sexual abuse in the Head Start case of the early 1990s, "be vacated and that the charges against them be dismissed." The Chronicle-Telegram obtained a letter, dated Thursday, in which Tomlinson wrote to one of the alleged victims in the case that she has the right to come to his office to discuss his proposal. "You also have the right to be present and speak to the court, personally or through another, at any hearing on this matter," Tomlinson wrote in the letter to a female victim, whose name was redacted. Tomlinson's office has yet to file any official notice with the court, according to a search of Lorain County Common Pleas Court records. Allen and Smith were convicted by a jury in 1994 of molesting a number of children and sentenced to long prison terms. A series of legal arguments, motions, appeals and judgments that followed saw the pair released from prison in 2009, only for Allen to later return to serve out a lesser sentence and for Smith to be released. "At the request of the Ohio Innocence Project, I have reviewed the cases of State v. Smith and State v. Allen," Tomlinson wrote in a statement Thursday. "My office is evaluating the Head Start prosecution in an effort to determine first, whether justice has been served and second, if I become convinced that it was not, what steps this office can take to rectify that." Upon conviction, Allen received five consecutive life sentences in prison following a jury trial in 1994, while Smith was sentenced to 30 to 90 years in prison. Allen remains in prison. Now 68, he has a parole hearing scheduled in April 2023, according to the Ohio Department of Rehabilitation and Correction. Smith has been out of prison for years, but has sought complete exoneration with the help of the Ohio Innocence Project. She has always denied any crimes against children and said she didn't know nor had she ever met Allen. Messages seeking comment on the development in the case were left for Mark Godsey, director of the Ohio Innocence Project at the University of Cincinnati College of Law, on Thursday. Online court records showed that Jonathan Rosenbaum, the former assistant Lorain County prosecutor who tried the case in 1994, had filed a notice of appearance on behalf of the alleged victims in Allen's case. Rosenbaum declined to comment Thursday. The case The Head Start case, as it has come to be known, is one of the most controversial court cases in Lorain County history. Allen and Smith were accused of sexually abusing preschool-age children on Smith's Head Start bus route and in Allen's home in Lorain in the early 1990s. Smith's attorneys have long argued there was no physical evidence linking Smith to the case, that she passed a polygraph test that confirmed her innocence, that she didn't leave her bus route the week the alleged incidents took place, and that multiple children who initially claimed to have been abused couldn't identify Allen in a lineup. Witnesses and police reports also backed up Smith's alibi, but she and Allen were convicted on the testimony of the alleged child victims and their parents, according to Smith's attorneys. Both have declared, since they were first arrested and tried, that they are not guilty of any crimes against children, and chalked up the state's prosecution of the alleged victims' claims to "the national climate at the time" surrounding day care sexual abuse hysteria. Multiple convictions and trials later found to be based on flawed testimony, poor interrogation tactics, leading questioning and public pressure on investigators and prosecutors occurred in the 1980s and 1990s, among them the McMartin preschool trial in 1987 and 1990. Defense attorneys have questioned whether Lorain police investigators or the children's parents coached them to identify Allen, who had already served prison time for a prior sexual assault conviction in the 1980s. In a January 2007 letter to the Ohio Parole Board, Smith's defenders wrote that the questions posed to one of the victims "were leading and too specific, plus the parents continued to contaminate (one of the alleged victims) with the use of media information." Fifteen years after the convictions, and after reading the trial transcripts and considering the evidence gathered by the Lorain Police Department during the original investigation, then-Lorain County Common Pleas Judge James Burge acquitted Allen and Smith in 2009 over a technical flaw in their sentencing and ordered them released on bond pending resentencing. The prosecutor's office fought that ruling, and the Ohio Supreme Court ruled in 2011 that Burge didn't have the authority to acquit Smith or alter her sentence. Burge told the Ohio Parole Board in January 2013 that he was being investigated by the Ohio Supreme Court's Office of Disciplinary Counsel as a result of the actions he took over the case. Burge, who resigned from the bench in April 2015, was named Tomlinson's chief of staff in January. With Burge's support, Smith sought clemency from former Gov. John Kasich, but never received it. Burge told The Chronicle-Telegram in January 2013 that he would back clemency for Allen if Allen applied for it. Some original Lorain police investigators also later said they did not believe that the crimes had occurred as described by the children. That included a conversation captured on audiotape by Smith's daughter. Rosenbaum had pushed prosecution of the case, according to the taped conversation. "Rosenbaum kept calling and saying he wanted the case, and we kept saying, 'It's too confusing. There's just not enough there,'" Lorain Police Chief Cel Rivera told Amber Bronish, Smith's daughter, on tape. Bronish later released that tape to the media. In addition, four of seven children who viewed a suspect lineup in 1993 failed to identify Allen, while a fifth child only identified him "with help from her mother," The Chronicle-Telegram reported in September 1997, reporting on the existence of a videotape of the lineup. Jurors who convicted Allen and Smith never saw that videotape, the newspaper reported. Lorain County prosecutors also "did not alert defense lawyers that the results of the lineup might aid their clients, who were later found guilty," according to a Sept. 21, 1997, Chronicle-Telegram story. A witness who would have testified that she was with Smith on her bus on May 7, 1993, when prosecutors alleged some children were molested, was not called to testify in Smith's defense, according to Chronicle archives. Allen's trial attorney, Joe Grunda, died in October 2019. Messages seeking comment on Tomlinson's announcement were left Thursday for Smith's original trial attorney, Jack Bradley, now the mayor of Lorain. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him at @daveobrienCT on Twitter.TIMELINE OF EVENTS: May 1993: Allegations of sexual misconduct are reported to Lorain police, who launch a months-long investigation. Evidence later surfaces that the alleged victims' stories and identifications of Allen were questionable, and four of seven children shown a lineup by Lorain police fail to identify Allen as their abuser. November 1993: Allen and Smith, a Head Start bus driver, are indicted on felony charges that they took the 4- and 5-year-old children on her bus route to Allen's home in Lorain and sexually abused them. July 1994: Lorain County Common Pleas Judge Lynett McGough rejects a request from Smith's attorneys to separate the trials for her. August 1994: Smith and Allen are convicted by a jury after a nine-day trial. McGough sentences Allen to five consecutive life sentences. Smith gets 30 to 90 years in prison. January 1996: Smith' s conviction is upheld by the 9th District. The Ohio Supreme Court later declines to hear the case. August 1997: Allen's conviction is upheld by the 9th District Court of Appeals. The Ohio Supreme Court later declines to hear the case. January 1998: 9th District appeals judges uphold Smith' s conviction a second time. June 2003: The alleged victims are awarded $1.5 million each in a civil lawsuit against the Lorain County Community Action Agency. July 2003: Smith's attempt to reopen her appeals case rejected by the 9th District. February 2007: The Ohio Parole Board declines to grant Smith parole, saying she is in "denial" because she won't admit guilt. February 2009: Smith is released on bond after Lorain County Common Pleas Judge James Burge finds that she is entitled to a new sentencing hearing on technical grounds. April 2009: Allen is freed on bond. June 2009: Burge throws out the cases against both Allen and Smith, effectively acquitting them. October 2009: An appeals court rules that Burge's acquittals should stand. June 2010: The 9th District Court of Appeals rules in favor of Smith's acquittal, but in the same decision says Allen should be resentenced because Burge was not permitted to acquit him. January 2011: In a unanimous decision, the Ohio Supreme Court overturns Burge's acquittals and orders Allen and Smith back to prison. April 2012: The Head Start molestation case is featured in an NBC "Dateline" documentary. Smith files for clemency with the Ohio Parole Board and appears before them in January 2013. March 2013: Burge removes himself from the case. Visiting Judge Virgil Sinclair Jr., a retired Stark County judge, is appointed to oversee it. In June 2013, Smith comes to a sentencing agreement with prosecutors that allows her to be released from prison with time served, and the Ohio Parole Board opposes a full pardon for her in August 2013. October 2013: Allen is ordered back to prison after striking a plea deal that leaves him eligible for parole. SOURCES: Chronicle archives; Lorain County Common Pleas Court and the 9th District Court of Appeals records