Cook grants Head Start defendants permission to seek new trial

Lorain County Common Pleas Judge Chris Cook has granted Joseph Allen and Nancy Smith permission to file a motion seeking a new trial in their 1994 sexual abuse convictions in the Head Start case. Cook filed his decision Wednesday afternoon, shortly before the courthouse closed for the New Year's holiday. Obtaining permission from the court to seek a new trial is the first step for Allen and Smith. The defendants, Cook wrote, "have presented significant, probative evidence that justifies a grant of leave to file a motion for a new trial." He also denied a motion by attorney Jonathan Rosenbaum to disqualify the Lorain Prosecutor's Office and Prosecutor J.D. Tomlinson from further handling the case. Rosenbaum had asked the court to appoint a special prosecutor to oversee the matter, and Cook denied that too. Cook further ruled that Tomlinson and attorneys for Allen and Smith were permitted to amend a 2013 resentencing agreement the defendants signed that altered their original sentences, freed Smith and sent Allen back to prison with the chance to be released one day. Allen and Smith were accused of sexually abusing preschool-age children who rode Smith's Head Start bus in Lorain in 1993, convicted and sentenced to lengthy prison terms. Smith has claimed for nearly the past 30 years that she never met Allen prior to being put on trial with him, and Allen has denied sexually abusing anyone. Attorney Mark Godsey of the Ohio Innocence Project, who is representing Smith, said Thursday that the ruling "gets us part of the way to the ultimate goal, which is to clear them of all of the charges." "I don't think it was a surprise. I was personally impressed with Judge Cook's knowledge of the case," he added. "I was very impressed." Godsey said he was looking forward to the next step, "which is to have the convictions overturned." He said Smith "was pleased" by the judge's ruling and "is optimistic," based on the strength of the evidence, that she will be granted a new trial. "We are of course very pleased that the judge has granted leave to file the motion for a new trial and are very hopeful for a positive result after he completes his independent review of the merits of the motion," attorney Richard Parsons, who is representing Allen, told The Chronicle-Telegram in an email Thursday. Allen currently is free on bond, wearing a GPS monitoring device and living with family in Lorain after Cook let him out of prison last week as he considered the motions filed in the case. Wednesday's ruling hit on a number of issues raised by attorneys on the case. Critics of the convictions say there is no physical evidence linking Allen and Smith to any child sexual abuse, though higher courts upheld the convictions for nearly 20 years. Tomlinson said Thursday he welcomed the outcome. "I was hopeful Judge Cook would rule the way he did," he said.Permission to seek new trial When considering giving permission for a defendant to seek a new trial based on new evidence, Cook said it is up to the court to consider whether that evidence is new and whether it could have been discovered in the first place. The court also has to consider whether that evidence contains "a strong probability that it will change the result" of the first trial, when the evidence was discovered, if it could have been discovered prior to the first trial "with due diligence," whether it is "material to the issues" and it doesn't simply contradict prior evidence, Cook wrote. "Keep in mind that the issue before the court is whether to grant leave to file a motion for a new trial based upon newly discovered evidence, NOT whether to actually grant a new trial," Cook wrote, with the emphasis his. The decision to grant or deny that motion, the judge wrote, "is a wholly different and an independent matter that will be evaluated" by standards set forth in state law. "But for now, there is enough evidence to summit the bar of obtaining leave to file for a new trial," Cook wrote.Jonathan RosenbaumRosenbaum was an assistant Lorain County prosecutor, working for then-county Prosecutor Greg White, when he tried the case in front of a jury in Judge Lynett McGough's courtroom in 1994. Rosenbaum won his case, and Allen was sentenced to five consecutive life terms in prison. Smith was sentenced to 30 to 90 years in prison. (McGough died in 2015.) Now an attorney in private practice, Rosenbaum notified the court on Oct. 21 that he was representing two of the original victims in the case after word got out that Tomlinson was re-examining the convictions. Godsey and Parsons questioned Rosenbaum's status as the victims' attorney in Cook's court on Dec. 22, and Rosenbaum asked for and received permission to withdraw from the case. In Wednesday's ruling, Cook noted Rosenbaum's longtime connection to the case. Cook wrote that he, the defense attorneys and Tomlinson "all recognized a potential conflict of interest for Rosenbaum to take an adverse position to his former client (the state of Ohio) in this action absent a written waiver from the state," the judge wrote. No waiver was offered by Rosenbaum, and Tomlinson confirmed in court that no waiver was given. In addition, the Ohio Rules of Professional Conduct "clearly prohibit an attorney from representing a client where the attorney's professional judgment is materially limited by his or her responsibility to a former client, absent informed consent in writing," wrote Cook, who also is vice chairman of Ohio's Board of Professional Conduct, which governs attorney conduct and discipline in the state on behalf of the Ohio Supreme Court. Despite those concerns, Cook said the two victims Rosenbaum was representing had the right to be heard in court under Marsy's Law, which grants crime victims certain rights. He further ruled the issue moot, due to Rosenbaum withdrawing as the victims' attorney. A message seeking comment on Cook's ruling was left for Rosenbaum on Thursday.Sentencing agreements amendedCook also granted an amendment to a 2013 sentencing agreement that Allen and Smith entered into with the prosecutor's office. In that agreement, Smith agreed that her conviction would stand but was given credit for time served and not sent back to prison. She had been free since former Common Pleas Judge James Burge acquitted her and Allen of the charges in 2009 and released them from prison. Burge has been Tomlinson's chief of staff since January, Rosenbaum noted in court. That acquittal was later challenged by prosecutors, one of a number of legal challenges on both sides of the case in the last 27 years. For Allen, the resentencing agreement meant he would be resentenced to concurrent life terms for his convictions, resulting in a single term of 10 to 25 years in prison with credit for time served, Cook wrote. That would give Allen a maximum prison term and a set release date, the judge wrote. Allen, who had been free for more than four years after Burge's 2009 ruling, was sent back to prison. The agreements also stated the defendants agreed not to challenge their convictions, except by applying for clemency to the governor of Ohio. However, the agreements also stated they may only be amended "by a subsequent written agreement," which Tomlinson's office agreed to along with Allen and Smith's attorneys, and which Cook accepted in Wednesday's ruling. "Accordingly, this court has jurisdiction to consider Smith's and Allen's motions for leave and for a new trial given the written amendments to the 2013 sentencing agreements," Cook wrote.J.D. Tomlinson remains on caseOn behalf of the victims, Rosenbaum filed a motion to disqualify Tomlinson and his office from further handling the case and for the court to appoint a special prosecutor on Dec. 21. Rosenbaum further claimed Tomlinson had "abdicated his role" as the state and public's representative, that evidence in support of a motion for a new trial was "compromised," that Tomlinson was "ignoring the procedural history of the case" as well as consideration given to Smith at resentencing and also ignored a prior conviction Allen had for a sex offense in the 1980s. Allen has denied committing a crime in that case, as well. Rosenbaum further alleged in court and in his motions that Tomlinson's campaign promise in 2020 to review the convictions if elected was on Burge's behalf, after the former judge's acquittals of Allen and Smith were reversed by higher courts. Rosenbaum argued Tomlinson and his office should be disqualified from the case because Burge now works for him. Cook ruled Dec. 22 that Burge should be disqualified from any participation in the case because he made a ruling on it in 2009, and Tomlinson agreed to that. Cook wrote that Rosenbaum focused on his argument that Tomlinson "abdicated" his role as prosecutor on behalf of the victims, but that he found that argument "the least compelling." Calling the argument "misplaced," Cook ruled that Tomlinson has "great discretion to decide the mode and manner in which his office prosecutes cases," including the ability to reject, reduce or amend charges and dismiss cases. The Ohio Supreme Court has already ruled that a prosecutor has "no clear duty" to prosecute an offense, Cook wrote, and decisions to overturn a prosecutor's discretionary decisions generally can't be second-guessed by judges. Furthermore, Cook wrote that Tomlinson's decision to consent to Smith and Allen's request for a new trial and his conclusion that they are not guilty, "is Tomlinson's to make." "And agree or disagree with his decisions, one cannot seriously argue that he lacks the discretion to make them," Cook wrote. Rosenbaum's arguments that the new evidence brought to court by the defense is not new and is compromised also is "misplaced," Cook wrote. In their motion for a new trial, the Ohio Innocence Project's Godsey, who is representing Smith, and Parsons, the attorney representing Allen, attached five affidavits that allege, among other things, that the mother of one of the victims made up a child abuse charge to try to win a custody dispute involving her son and grandchild in 2021. The son, Dino Grondin Jr., wrote that his mother made up the allegations against Allen and Smith for the same reason back in 1993. Cook agreed that the attached statements deserve "scrutiny for review" when considering whether to grant a new trial.Tomlinson's reasoning 'irrelevant'Cook also ruled that "how or why" Tomlinson came to a decision to review the convictions is irrelevant to the case. "The procedural history of this case as well as the fact that the convictions have been upheld by multiple courts" are hardly proof of guilt, he wrote, citing the University of Michigan Law School and Michigan State University College of Law National Registry of Exonerations' findings that at least 2,932 people have been exonerated of criminal charges since 1989. "No doubt many, if not all of these individuals had their convictions upheld on appeal prior to their exonerations," Cook wrote. That it was allegedly a campaign promise to review the convictions also is irrelevant as long as Tomlinson doesn't abuse his discretion as prosecutor and doesn't act illegally or unethically, Cook wrote. If such a campaign promise was made, "it could certainly lead a reasonable person to conclude that that was a factor, maybe even an important one" in Tomlinson's election in November 2020, Cook wrote. "After all, this case has arguably been the most visible, controversial criminal case in the history of Lorain County." Cook further wrote that the circumstances don't call for him to appoint a special prosecutor even though he has the power to do so. If Lorain County citizens believe Tomlinson overstepped his authority or was improperly influenced by Burge or anyone else, "then their remedy is at the ballot box, not through disqualification," Cook wrote. Tomlinson has said if Allen and Smith are granted a new trial, he will dismiss the charges against them because his office believes they are innocent. He told The Chronicle-Telegram on Dec. 22 he wasn't thinking about lawsuits the county or anyone involved in the case might face in the future when he decided to review the Head Start convictions. Money, Tomlinson told a Chronicle reporter, hasn't been a consideration. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him @daveobrienCT on Twitter.