Review of Head Start case is appropriate

Lorain County Common Pleas Judge Chris Cook was right to grant Nancy Smith and Joseph Allen leave to seek a new trial in the controversial Head Start child molestation case. As Cook himself noted, however, this doesn't mean the pair will succeed in getting the case reopened. It just means that the Ohio Innocence Project, which represents them, will have the opportunity to argue that new evidence would change the outcome. Cook wrote that Smith and Allen "have presented significant, probative evidence that justifies a grant of leave to file a motion for a new trial." Not only that, but county Prosecutor J.D. Tomlinson supports the effort to reexamine the matter. Were Smith and Allen to be granted a new trial, Tomlinson has said, he would dismiss the case. Questions have swirled around it since Smith and Allen were accused of molesting children on her Head Start bus route in the early 1990s. At the time, the nation was gripped by hysteria over supposed child sex abuse in day care centers. Smith and Allen adamantly denied knowing each other or committing the crimes they were accused of. In 2009, then-county Common Pleas Judge James Burge acquitted Smith and Allen after they were brought back to court to correct a technicality in their original sentencing entries. (Burge now serves as Tomlinson's chief of staff, but Tomlinson said the decision to side with the Innocence Project in the matter was his alone.) Although the Ohio Supreme Court ordered the convictions reinstated, then-county Prosecutor Dennis Will cut deals with Smith and Allen in 2013. Smith went free, while Allen went back to prison, where he lingered until two weeks ago when Cook ordered him released on bond. Even considering Allen's prior criminal record, the disparate treatment of Smith, who is white, and Allen, who is Black, has never sat right with us. Cook also rightly questioned those outcomes. However much some may disagree with Tomlinson's position, he is perfectly within his rights as the county's elected prosecutor to pursue justice in the manner he sees fit, so long as it's done in a legal and ethical manner. We've seen no evidence to suggest that Tomlinson has acted inappropriately. A prosecutor's duty is not to win cases, but to ensure that justice is done. Sometimes that means securing a conviction. Sometimes that means dropping a case. Sometimes that means looking at an old case with fresh eyes. And, yes, sometimes that means admitting that the evidence no longer supports a conviction, however many courts have upheld it in the past. This is not to say that Cook should automatically grant Smith and Allen a new trial. He must carefully weigh the evidence their attorneys present. If that evidence supports a new trial, then justice demands that he order one. Not everyone sees it that way. At least two alleged victims want the convictions upheld, and they asked Jonathan Rosenbaum, who handled the original case back when he was an assistant county prosecutor, to represent their interests. Rosenbaum is well within his rights to believe that Smith and Allen are sexual predators, but he had no business trying to insert himself into the case. Had Rosenbaum not withdrawn from it himself, Cook would have been justified in removing him. Allowing an ex-prosecutor, even if he represented alleged victims, to intervene would have set a dangerous precedent. Yes, victims have a right to be heard, but not the right to bring their own lawyers to court and try to substitute their judgment for that of prosecutors. That's exactly what Rosenbaum was trying to do when he sought to remove Tomlinson from the case because he wasn't fighting to uphold the convictions. That led to a troubling exchange between Cook and Rosenbaum. "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?" Cooked asked "… I'm not saying that they're right, but don't they (prosecutors) have the ability to make that decision?" "I don't believe they do," Rosenbaum replied. Again, the goal of a prosecutor should be to seek justice, not mindlessly to defend a conviction at the expense of it.