Jonathan Rosenbaum no longer representing victims in Head Start case

The former prosecutor on the Head Start child sexual abuse case, who helped convict Joseph Allen and Nancy Smith of abusing preschoolers in Lorain in 1994, has withdrawn from representing two of the victims in the case. Lorain County Common Pleas Judge Chris Cook, who is considering whether to grant Allen and Smith permission to seek a new trial, granted attorney Jonathan Rosenbaum permission to withdraw on Monday. Rosenbaum was "relieved of any further responsibility in this matter," Cook wrote in a decision dated Monday. Rosenbaum faxed a motion to the court to withdraw from the case Thursday, when the courthouse was closed for the Christmas holiday, according to court documents. He had signed on to represent two of the original victims not long after Lorain County Prosecutor J.D. Tomlinson announced this fall that his office was reviewing Allen and Smith's convictions. A message seeking comment was left for Rosenbaum. "Based on the content of his request to withdraw, I surmise after the hearing he recognized that he was conflicted from participating in the proceeding as a private attorney," attorney Richard Parsons, who is representing Allen, wrote The Chronicle-Telegram in an email Monday. Tomlinson said he had no comment on the matter Monday. A message seeking comment also was left for attorney Mark Godsey of the Ohio Innocence Project, who is representing Smith. At a hearing Wednesday, Parsons told Cook that Rosenbaum's involvement in the case might violate certain codes of conduct for attorneys. Cook, the vice chairman of the Ohio Board of Professional Conduct that oversees attorney discipline, said he would review Parsons' objections. Parsons said in court it was Rosenbaum who shouldn't be allowed to be part of the case now, after he prosecuted it in 1994. He said Rosenbaum would have to get a waiver from the prosecutor's office, which Tomlinson said has not been granted. "Regardless of what position he takes, I believe he is also conflicted simply because he was a prosecutor on this case," Parsons told Cook. Tomlinson announced in October that he was reviewing the case. Earlier this month, he announced he would not oppose any attempt by Allen, Smith and their attorneys to seek a new trial. If a new trial is granted, Tomlinson said last week he would not take the matter back to court and would dismiss the charges against the two. "Our consensus is that we believe these defendants are innocent," Tomlinson said in court Wednesday. Rosenbaum argued in court Wednesday that Tomlinson's office has "proven that they are not going to advocate" on behalf of the state or the victims in the case, and that "they are not going to fight this or produce any evidence to give the court an informed decision." Cook agreed that the victims have "substantial rights" under Marsy's Law and agreed to hear Rosenbaum's arguments. Rosenbaum also filed a motion to have Tomlinson's office removed from the case and a special prosecutor appointed. Godsey and Parsons asked Cook to reject that request. Allen, who received five life sentences in prison, and Smith, who was originally sentenced to 30 to 90 years in prison, have long protested their innocence in a case that has been argued and re-argued in Ohio courts for close to three decades. Cook on Wednesday ordered Allen released on bond and fitted with a GPS monitor while the court considers giving him and Smith permission to apply for a new trial. Allen's brother told the judge Allen would live with him while that happens. Between 2009 and 2013, Allen also was free after former Lorain County Common Pleas Judge James Burge acquitted him and Smith of the charges. A legal challenge to the acquittal set up more decisions by higher courts. Smith agreed to be resentenced in 2013 and was released from prison. Allen also was resentenced but ordered back to prison, where he remained until late last week. Allen and Smith were charged with taking 4- and 5-year-old children on Smith's Head Start bus route to Allen's home in Lorain, where prosecutors and Lorain police detectives said the duo sexually abused the children. The original Lorain police detective on the case, Tom Cantu, later said he thought the accusations were unfounded, but he was removed from the case and other detectives took over. Jack Bradley, now the mayor of Lorain, was Smith's attorney at her 1994 trial. He said at the time, prosecutors weren't required by Ohio law to provide him with all of their evidence. That included a videotape of a lineup that the jury never saw at trial. Critics of the convictions allege that detectives and parents of the children improperly directed the children to identify Allen in the lineup, and that there is no physical evidence linking Allen and Smith to any child sexual abuse. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him @daveobrienCT on Twitter.