Prosecutor who tried original Head Start case wants J.D. Tomlinson removed

ELYRIA — A battle of words continued Tuesday over the controversial convictions and possible new trials of two people imprisoned in the Head Start child sexual abuse case of the 1990s. The original prosecutor in the case, who now is representing two of the original victims, is asking a judge to remove Lorain County Prosecutor J.D. Tomlinson from the case and replace him with a special prosecutor. Attorney Jonathan Rosenbaum, the original assistant Lorain County prosecutor who secured convictions against Joseph Allen and Nancy Smith in 1994, filed motions in Lorain County Common Pleas Court on Tuesday to have Tomlinson disqualified and to appoint a special prosecutor. A hearing on Allen and Smith's motions for a new trial is set for 1 p.m. today in Judge Chris Cook's courtroom. Tomlinson filed motions in the cases against both Allen and Smith last week, saying his office doesn't oppose a new trial for the duo. Tomlinson announced in October he was reexamining the case because he had questions about whether Allen and Smith were guilty. He also sent letters to the victims in the original case, notifying them of his decision. The Ohio Innocence Project, which has taken up Allen and Smith's cases, has asked Cook to order a new trial for its clients. Tomlinson said in a Dec. 14 court filing that he would not oppose that request. Rosenbaum had strong words in response to Tomlinson's decision in the motions he filed Tuesday. "It would be hard to conceive of a greater violation of the oath of office of any County Prosecuting Attorney than what is taking place in this case when the duly elected prosecuting attorney abdicates his role to represent the State of Ohio and defend the public from crime," Rosenbaum wrote in his motion to disqualify Tomlinson and appoint a special prosecutor. "Instead of advocating on behalf of these child victims of rape and human trafficking, Prosecutor Tomlinson actually becomes the spokesperson for two child rapists/human traffickers whose convictions have been reviewed and upheld many times by the 9th District Court of Appeals, and the Ohio Supreme Court." Read the motion at tinyurl.com/2p9b6may. Rosenbaum further wrote that his former boss, former Lorain County Prosecutor Greg White, "three subsequently elected prosecutors, and at least two Ohio attorneys general saw fit to successfully defend this conviction" but that "newly elected Prosecutor Tomlinson has decided that all prior court rulings and the evidence supporting them should be disregarded and/or lack any probative significance." Tomlinson "has conceded that the defendant is entitled to a new trial, and that the outcome of this trial would be different," he wrote, which "impugns and undermines the testimony of all the witnesses including the three child rape victims, their parents, the prior child sex abuse victim that led to Allen's prior conviction (for sexual assault in the 1980s, for which he served time in prison), and the four independent witnesses who placed Smith in proximity with Allen." "This testimony was observed, weighed and judged by a jury of 12 citizens in a court of law. This jury saw and heard the testimony of the children. All of the witnesses withstood strenuous cross-examination in a public trial," Rosenbaum wrote. Rosenbaum further wrote that Tomlinson's "arrogance ... rejects our entire system of criminal law and jurisprudence which has reviewed and sustained this conviction" and "callously revictimizes, reinjures and forces the victims of child rape and human trafficking to relive and recall events that it has taken them years of time and therapy to survive and forget." Rosenbaum's motion also attacked the credibility of a witness, Dino Grondin, who signed a sworn affidavit that the abuse was made up "for financial gain" by his mother, Margie Grondin, who also is the mother of one of the victims in the case. Margie Grondin has been accused in documents filed by the Ohio Innocence Project of coaching her child to pick Allen out of a lineup. Rosenbaum said Dino Grondin also previously was defended in court by Tomlinson's chief of staff, former common pleas Judge James Burge. Dino Grondin also has been involved in a custody dispute involving his mother and one of his children and has been convicted on drug charges in the past, Rosenbaum alleged. Dino Grondin does have drug-related convictions in Lorain County and is awaiting retrial in another case, according to court records. While a judge, Burge threw out the cases against both Allen and Smith in June 2009, effectively acquitting them. An appeals court sided with his decision in October 2009. A divided 9th District Court of Appeals ruled in favor of Smith's acquittal in June 2010, but in the same decision said Allen should be resentenced because Burge was not permitted to acquit him. The Ohio Supreme Court overturned Burge's acquittals in January 2011 and ordered Allen and Smith back to prison. Rosenbaum further stated that Cook has the ability to appoint a special prosecutor if he determines that the public interest requires it. Tomlinson said Tuesday that he had received Rosenbaum's motions and was reviewing them. He had no further comment. Allen and Smith were convicted of sexually abusing a number of 4- and 5-year-old children in a Head Start program after the children told their parents and Lorain police they had been abused on Smith's Head Start bus route and at Allen's home. Allen was sentenced to five consecutive life sentences and Smith to 30 to 90 years in prison. After more than 27 years of appeals and court decisions, Allen remains in prison though with his original sentence greatly reduced. Smith has been free since June 2013 after coming to an agreement with prosecutors allowing her to be released from prison with time served. Defenders and supporters of Allen and Smith have long argued that the original Lorain police detective who investigated the case determined it was unfounded, but that other detectives re-investigated the case and may have asked inappropriately leading questions of the children. They also argue that the children were coached by a parent or parents to identify Allen in a police lineup, that some of the children couldn't identify Allen until they were coached and that only the word of the children and no physical evidence linked Allen and Smith to the alleged crimes. A videotape of the lineup never was shown to the jury in the original trial. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him @daveobrienCT on Twitter.