Prosecutor won't oppose new trial in 1994 Head Start abuse case

ELYRIA — A hearing has been set in a Lorain County court Wednesday on a request for a new trial from two people convicted of sexually abusing children in the infamous Head Start case in Lorain in the 1990s. The Lorain County Prosecutor J.D. Tomlinson said his office won't oppose the request. Ohio Innocence Project attorneys Mark Godsey, representing Nancy Smith, and Richard Parsons, representing Joseph Allen, filed a motion Tuesday asking for a new trial. Tomlinson responded to the Ohio Innocence Project's motion on Wednesday, telling county Common Pleas Court Judge Chris Cook that evidence discovered and presented in those documents "discloses a strong possibility that it will change the result if a new trial is granted; has been discovered since the trial; is such as could not in the exercise of due diligence have been discovered before the trial; is material to the issues; is not merely cumulative to former evidence; and does not merely impeach or contradict the former evidence." For that reason, Tomlinson wrote, "he believes defendant's motion for a new trial has merit and should be well taken; and, that the state of Ohio is in agreement with, and consents to, the granting of defendant's motion for a new trial." Tomlinson confirmed the content of his office's response, but declined further comment on Friday. "Nancy Smith and Joseph Allen are innocent," Godsey wrote in an email to The Chronicle-Telegram on Friday. "The case was fabricated for financial gain, and the culprits unfortunately made millions. But now even the prosecutors recognize that this case was a travesty of justice and that Nancy Smith and Joseph Allen are innocent." Godsey and Parsons's 72-page filing included five signed, sworn statements from a sibling of one of the alleged victims, that man's father, the Lorain Police Department detective who originally investigated the case, an expert on children's language and memory development and an Ohio Innocence Project investigator. The case Allen and Smith, who have long professed their innocence, 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. A jury convicted them in 1994. Allen was sentenced to five consecutive life terms and Smith to 30 to 90 years behind bars. Their supporters and attorneys have long declared the two are innocent. Many of the children couldn't identify Allen in a lineup, according to his defenders, and at least one of the children was allegedly coached by adults to identify Allen as the culprit. Fifteen years of legal challenges and appeals resulted in Allen and Smith being released from prison by former county Common Pleas Judge James Burge in 2009, but more appeals followed and Allen was eventually returned to prison. Now 68, he has a parole hearing scheduled in April 2023, according to the Ohio Department of Rehabilitation and Correction. Burge is now Tomlinson's chief of staff. Smith has been out of prison for years, and sought the help of the Ohio Innocence Project to exonerate her completely. She has consistently denied committing any crimes against children and said she didn't know, nor had she ever met, Allen. No physical evidence linked Smith or Allen to the crimes. Smith also passed a polygraph test and had a witness who backed up her alibi, but who was not called to testify at trial, according to court records and statements by her supporters At least two former Lorain police investigators later said they did not believe that the crimes had occurred as described by the children. The lineup and the children's identifications of Allen were videotaped, but jurors never got to see that tape, according to Smith's former attorney. Some alleged victims initially claimed a white man was their abuser, but Allen is Black. The alleged victims also initially told a Lorain police detective they loved Smith and liked having her as their bus driver, according to the Ohio Innocence Project. New evidence In their motion for a new trial, Godsey and Parsons called what happened to their clients was a miscarriage of justice. "New evidence has surfaced which eviscerates the state's case and supports the defendants' theory that the charges against them were baseless and manufactured," they wrote, citing the five affidavits as well as a statement by Tomlinson that a reinvestigation of the case determined the alleged crimes never occurred. Those affidavits include statements by Dino Grondin Sr. and Dino Grondin Jr., who were present when some of the original allegations were made by Margie Grondin, whom they said coached a child "to make false allegations in order to 'get paid.'" Former Lorain police Detective Tom Cantu, the first on the case, also determined the allegations were "baseless" and the charges only filed after "the children changed their stories, which occurred after the parents in question mounted a public campaign to have charges brought," according to the Ohio Innocence Project. In addition, Dino Grondin Jr. and Ohio Innocence Project investigator Dr. Virginia Braden signed statements in which they alleged Margie Grondin "orchestrated a similar campaign to manufacture fabricated child abuse charges, presumably for financial gain" as recently as this year. Police investigated those claims and found the child abuse allegations false because Margie Grondin coached a child on what to say, according to the Ohio Innocence Project. Psychologist Maggie Bruck also wrote that evidence she reviewed "demonstrates that the testimony of the child witnesses in this case have all the earmarks of the children having been manipulated and coached into making false allegations." Cantu also told the Ohio Innocence Project that other Lorain detectives reopened the case only after the parents involved, led by Margie Grondin, "raised a fuss by going (to) the media and the mayor's office and put extreme public pressure on the police to bring charges." "After Cantu witnessed the children's stories evolve through time, he came to the conclusion the children had been coached for financial gain," according to the Ohio Innocence Project. Margie Grondin could not immediately be reached for comment on the claims put forward by the Ohio Innocence Project. Smith and Allen's new evidence, their attorneys wrote, "greatly exceeds the standard for a new trial. Indeed, a prosecution today, let alone a conviction, seems unimaginable." Smith's original trial attorney, Jack Bradley, is now the mayor of Lorain. In October, he told The Chronicle he has always been convinced of Smith's innocence. Allen's trial attorney, Joe Grunda, died in October 2019. Former assistant Lorain County prosecutor Jonathan Rosenbaum, who tried the case in 1994, has notified the court he plans to appear in court on behalf of two alleged victims. He previously declined comment to the newspaper. The Ohio Innocence Project on Friday also thanked Tomlinson for looking into the case again. "The citizens of Lorain County should be proud that they elected someone as prosecutor who cares about justice first, and about doing the right thing. We look forward to the complete exonerations of Nancy Smith and Joseph Allen," Godsey wrote. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him @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 Joseph Allen as their abuser were questionable, and multiple children shown a lineup by Lorain police fail to identify Allen. November 1993: Allen and Nancy 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 for separate trials. 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. A videotape of the lineup is not shown to the jury. January 1996: Smith' s conviction is upheld by the Ninth District Court of Appeals. The Ohio Supreme Court later declines to hear the case. August 1997: Allen's conviction is upheld by the Ninth District Court of Appeals. The Ohio Supreme Court later declines to hear the case. January 1998: Ninth 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 is rejected by the Ninth 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 from prison on bond pending further court dates. June 2009: Then-Lorain County Common Pleas Judge James 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 Ninth 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 and 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. 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. He remains in prison to this day. October 2021: Lorain County Prosecutor J.D. Tomlinson confirmed he had notified the alleged victims of his intent to reexamine the case because of questions of innocence. Dec. 14, 2021: The Ohio Innocence Project files a motion for a new trial on behalf of Allen and Smith. The Lorain County Prosecutor's Office concurs with the request in a court filing the following day. SOURCES: Chronicle archives; Lorain County Common Pleas Court and the 9th District Court of Appeals records