Joseph Allen out on bond; judge to decide on new trial

ELYRIA — Following a lengthy hearing in his courtroom Wednesday, Lorain County Common Pleas Judge Chris Cook is considering whether to allow Joseph Allen and Nancy Smith, who claim they were wrongfully convicted of child sexual abuse in the 1990s Head Start case, to file a motion seeking a new trial. While he awaits Cook's decision, and for the first time in eight years, Allen is free from a prison cell. Cook ordered Allen released from custody Wednesday on a $100,000 signature bond and GPS monitoring, to live with family while the judge considers attorney Richard Parsons' request for permission to seek a new trial for his client. Allen was to be released from the Lorain County Jail late Wednesday, after being transferred there from the Grafton Correctional Institution to attend the hearing. Smith, who has been free since coming to a new sentencing agreement with prosecutors in 2013, also was present for Wednesday's hearing, represented in her quest for a new trial by Ohio Innocence Project co-founder and director Mark Godsey. Besides their families, the Ohio Innocence Project and dozens of other supporters over the years, the duo have found an unlikely ally in Lorain County Prosecutor J.D. Tomlinson, who was elected to the position in 2020. While his two predecessors fought for more than 20 years to keep Allen and Smith behind bars, Tomlinson announced in October that he had re-examined the case. On Dec. 14, he announced he would not oppose a request by the defendants for a new trial. In court Wednesday, he said he wouldn't oppose Cook granting Allen and Smith permission to file a motion for a new trial and, if they were granted a new trial, he would dismiss the charges. "Our consensus is that we believe these defendants are innocent," Tomlinson said in court Wednesday. Cook agreed the case had "significant issues" during its lengthy timeline. Allen and Smith were charged with taking numerous 4- and 5-year-old children on Smith's Head Start bus route to Allen's home in Lorain, where prosecutors said they sexually abused them. After one Lorain police detective determined the accusations were unfounded, he was transferred and other Lorain police detectives took over. Questions have since arisen 27 years later as to whether police asked the children leading questions or whether the parents of the children coached them to identify Smith and Allen as abusers. Once charges were filed, a nine-day trial in August 1994 resulted in a jury finding Allen and Smith guilty. Then-Lorain County Common Pleas Judge Lynett McGough, who died in 2015, sentenced Allen to five consecutive life sentences and Smith to 30 to 90 years in prison. "The first thing that catches my attention is that despite facing multiple life count rape charges, Mr. Allen went to trial less than three months after being indicted? That's highly irregular. Now maybe he didn't waive time, maybe he demanded a speedy trial, I don't know. But to go to trial (in) less than three months when facing life rape counts is almost unheard of, but that appears to be the case," Cook said. Numerous appeals followed, and in 2009 then-Common Pleas Judge James Burge acquitted Allen and Smith of all charges and ordered them released from prison. His decision was appealed by the prosecutor's office and later reversed by the Ohio Supreme Court in January 2011. Cook said he wasn't present for the negotiations in 2013 but "the state, at that time, eight years ago, felt there was at least enough question of something relative to these two convictions that something had to be done." And while Smith agreed to a resentencing and a reduction to get out of prison, Allen got a reduced sentence "but remained in prison," Cook noted. "I don't know why a white woman of some means went home and an indigent Black man went back to prison. I don't know why that happened. Maybe there's a legitimate reason for that," Cook said. "But I know this: It doesn't look good, that that man (Allen) went back to prison and Ms. Smith went home." "I sure don't like the optics of it," the judge said. Attending the hearing via Zoom on Wednesday, and now representing two of the original victims in the case, was attorney Jonathan Rosenbaum. It was he who prosecuted Allen and Smith back in 1994 while serving as an assistant prosecutor under then-Lorain County Prosecutor Greg White. Cook noted that Rosenbaum was not a party to the case being considered Wednesday but that his two clients have "substantial rights" under the victim's rights law known as Marsy's Law to be heard by the court. Cook said their position should be heard in court "out of an abundance of caution." Rosenbaum on Tuesday requested the court disqualify Tomlinson from handling the case and appoint a special prosecutor, citing among other reasons that Burge is now Tomlinson's chief of staff. Tomlinson's office has "proven that they are not going to advocate" on behalf of the state or the victims in the case, Rosenbaum argued. "They are not going to fight this or produce any evidence to give the court an informed decision." Prosecutors dismiss or amend cases "all the time," Cook noted. "Are you suggesting that the state always must support a former conviction or the state always must take the position of victims even if the state believes the evidence has changed? … I'm not saying that they're right, but don't they (prosecutors) have the ability to make that decision?" Cook asked Rosenbaum. "I don't believe they do," Rosenbaum said. At that, supporters of Allen and Smith sitting in the courtroom murmured their disapproval and shook their heads. Rosenbaum said the convictions have been reviewed and affirmed by numerous courts since 1994 and that a "real hearing" should be held to determine if there truly is new evidence requiring a new trial. "… Which I submit there's not and I certainly think I made a substantial preliminary showing that this new evidence is certainly subject to some huge doubt, and should be cross-examined in a court of law so that you can make an informed decision," Rosenbaum told Cook. "And this prosecutor's office is not gonna do that." "They're laying down for whatever reason, they're taking up where Jim Burge left off as a judge, when he wrongfully acquitted these people with no review of the evidence, and that taints this whole situation," Rosenbaum said. "And I submit there is not a legitimate re-determination that these people are innocent in any way, shape or form. If there was, I would be the first person to go along with this." "I understand the first duty of a prosecutor is to do the right thing and I submit that we should have a real hearing in court with some cross-examination by someone that has put their heart into this cross-examination, to show whether or not these people are innocent or not," Rosenbaum said. "What's going on in his case now is a farce." Cook asked Rosenbaum if it was possible Tomlinson got elected in part because the community "wanted this case to be re-evaluated." "I don't believe that's a fair conclusion, your honor," Rosenbaum replied. He said Tomlinson is preventing the court from holding a fair hearing in which both sides are heard. "Many if not all of the same arguments that have been raised now have been rejected. That should count for something," Rosenbaum said. Tomlinson denied that Burge had any role in his decision and rejected Rosenbaum's allegations regarding his chief of staff. "I take issue, your honor, with the idea that Judge Burge is directing these actions. I am the Lorain County prosecutor, my name appears on these motions," Tomlinson said. "Those decisions were made by me, exclusively." Citing ethics rules, Allen's attorney Richard Parsons told Cook that it was Rosenbaum who shouldn't be allowed to be part of the case because he prosecuted it in 1994. He said Rosenbaum would have to get a waiver from the prosecutor's office now to take part, a waiver Tomlinson said had not been granted or signed. "Regardless of what position he takes, I believe he is also conflicted simply because he was a prosecutor on this case," Parsons said. Godsey and Parsons also filed documents Wednesday asking Cook to reject Rosenbaum's motion to have Tomlinson removed from the case. Neither Rosenbaum nor his clients have any standing in the case beyond the rights guaranteed the victims under Marsy's Law, they argued. Cook said he would take all of Wednesday's arguments under advisement. The parties involved all stated in court that they were comfortable that Cook had no conflict of interest in hearing the case. Cook disclosed in open court Wednesday that he had once worked in private practice alongside Jack Bradley, the current Lorain mayor and former defense attorney who represented Smith at trial in 1994. Cook also twice served as an assistant Lorain County prosecutor in the mid- to late 1990s and mid-2000s, but never had anything to do with prosecuting it, he told the parties. Outside court Wednesday, Allen's niece Cassandra Marr said her family was grateful to Tomlinson for his efforts on behalf of her uncle and Smith. Her uncle was "overgenerous" to her growing up, she said, and she hopes the court deems him and Smith innocent even though there is "still a little bit of a race to do." Faith, the Lorain woman said, has helped Allen through his imprisonment. His family plans to "shower him with love and give him some good food" upon his release, Marr said. The case has been followed at length by other organizations interested in righting what they see as wrongful convictions. In a statement sent to The Chronicle-Telegram, The National Center for Reason and Justice in Roxbury, Massachusetts — which according to its website "educates and advocates for child-protective laws and criminal justice practices based on science, fairness, and good sense; and supports people who are falsely accused or convicted of crimes against children" — said it was "encouraged" by Wednesday's hearing. Members of the NCRJ "rejoice that Joseph Allen today was released from prison on bond," according to the statement. The NCRJ has been supporting Allen's case since 2002, raised money to pay for his attorneys and "is overjoyed that Nancy Smith and Joseph Allen are on the road to freedom and we hope exoneration." Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him @daveobrienCT on Twitter.