Judge to rule on request for new trial in Head Start case next week

ELYRIA — Lorain County Common Pleas Judge Chris Cook said he will rule next week on a request for a new trial by the defendants in the Head Start child sexual abuse case. Joseph Allen and Nancy Smith spent years in prison after their controversial 1994 conviction on child sex abuse charges. They have always denied allegations they abused the children on Smith's Head Start program bus in Lorain in 1993. After decades of legal wrangling, Allen is free on bond and living with family while he awaits Cook's ruling on his request for a new trial. Smith has been out of prison since 2013, after she and Allen reached an amended sentencing agreement with former Prosecutor Dennis Will's office that allowed her to be released and greatly reduced Allen's remaining prison time. Lorain County Prosecutor J.D. Tomlinson has said that if Cook rules that Allen and Smith are entitled to a new trial, he will drop the charges because he believes the duo are not guilty of the charges that sent them to prison. "I believe in the actions I've taken in this matter," Tomlinson said in court Thursday. Tomlinson also read a statement in court, repeating his belief that Allen and Smith are not guilty and that there was never enough evidence to convict them in the first place. "If I were merely to furnish defendants' counsel with the exculpatory evidence that should have been presented to their attorneys before the trial of these cases" in 1994, Tomlinson said, "the state of Ohio would be unable to convict." The alleged victims gave police detectives inconsistent statements about the location of the abuse and what their abuser looked like, according to courtroom testimony and filings by defense attorneys. The children all knew Smith because she drove their Head Start program bus, but some of them couldn't pick Allen out of a lineup. Allen and Smith's supporters have said that the lineup, videotaped by the Lorain Police Department, shows adults helping some of the children identify Allen after the children couldn't do so themselves. Representing two of the victims in the original case are Ohio Crime Victim Justice Center attorneys Latina Bailey and Bobbie Yeager. They have asked Cook to deny Allen and Smith's requests for a new trial. They also asked him to reconsider the sentencing agreements Allen and Smith reached with former Prosecutor Dennis Will in 2013. Cook said he will rule on the former request on Feb. 3, and denied the latter request. It's not up to his court to resentence Allen and Smith at this time, he ruled. Even if he grants the defendants a new trial, Cook said, a sentencing hearing is a long way off. Cook further ruled that he would continue to "play it safe" and allow the victims' attorneys to represent the unnamed victims' concerns in court. Bailey also argued that the court should reject arguments put up by Smith's attorney, Mark Godsey of the Ohio Innocence Project, and Allen's attorney Richard Parsons, that they are putting forward new evidence that could exonerate their clients. The evidence isn't new, Bailey argued, because sworn statements by defense witnesses aren't anything new before the court. "We do not believe that defense counsel has met their burden for a new trial," Bailey argued. Godsey replied that in the 1990s, child psychologists had not determined the proper way to question children about sexual abuse allegations. Behavioral science has improved since then, so reports by defense psychologists are "not something we could have presented" at trial in 1994. Tomlinson also told Cook the victims' attorneys were trying to argue the evidence against Allen and Smith. That isn't their job, he said. "That's my job, your honor," Tomlinson told Cook. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him on Twitter @daveobrienCT.