Former prosecutor asks federal judge to throw out Head Start wrongful conviction lawsuit (UPDATED)

This story has been updated with a quote from Nancy Smith's attorneys. One of the defendants in Nancy Smith's wrongful conviction lawsuit filed last month in U.S. District Court has asked a federal judge to dismiss the case against him. Sexual abuse charges against Smith were dismissed two years ago, nearly 30 years after she and Joseph Allen were convicted of sexually abusing children on her Head Start bus in one of the most controversial cases in Lorain County legal history. In the motion filed Monday, attorney Jonathan Rosenbaum — who as the chief assistant prosecutor in former Lorain County Prosecutor Greg White's office obtained convictions against Smith and Joseph Allen in 1994 — argued that Smith signed away any rights to sue more than 10 years ago when she signed an agreement that saw her released from prison. Rosenbaum also argued that under rules of prosecutorial immunity and qualified immunity, prosecutors like he was have immunity from such lawsuits, even if they were part of the investigation that resulted in alleged wrongful convictions. According to Rosenbaum's motion, Smith and former Prosecutor Dennis Will entered into the agreement in 2013. In it, Smith voluntarily agreed to serve a 12-year prison sentence with credit for 14 years and six months already served. Other conditions were that Smith waive her rights "to raise additional state or federal challenges to her conviction" to bring the prosecution and her sentence to a close, Rosenbaum wrote. Smith and prosecutors acknowledged in the agreement that she "was found guilty of all charges, beyond a reasonable doubt, as determined by all reviewing courts" and that "the parties stipulate that (this) agreement is based upon a mutual desire to put an end to all future litigation.'' Smith further agreed "she shall not pursue any civil or equitable actions in connection with this case, including, but not limited to, any claim for wrongful incarceration," according to Rosenbaum's motion. "Therefore, Smith is preclud(ed) from bringing this civil action which is connected to her criminal case according to the attached sentencing agreement of the parties," he wrote. Attorney Elliot Slosar, of the law firm Loevy & Loevy in Chicago that is representing Smith, provided the following statement to The Chronicle-Telegram: "Defendant Rosenbaum's motion to dismiss is as baseless as his vindictive prosecution of Nancy Smith without probable cause," he wrote. "As our lawsuit alleges, defendant Rosenbaum believed he could trample upon the constitutional rights of criminal defendants by committing egregious misconduct. That ends here. We will respond to defendant Rosenbaum's frivolous motion to dismiss in court where we are confident that truth and justice will prevail." Smith sued Rosenbaum, Lorain County, the city of Lorain, multiple former Lorain police officers and Margaret Grondin, the mother of one of Smith's original accusers, in U.S. District Court in Cleveland on Feb. 23. Her lawsuit alleges that Grondin faked sexual abuse claims against Smith, a bus driver for the Head Start program, and that Lorain police officers and Rosenbaum participated in a "conspiracy" to convict her. Former Lorain police officers Russ Cambarare, Mark Carpentiere, Joel Miller, Pete Rewak and the estate of former Lorain Police Chief Cel Rivera, who died in 2022, also are named as defendants in the lawsuit. The lawsuit also alleges Rosenbaum knew there was no probable cause to charge Smith with any crimes but "joined the conspiracy" and got a conviction out of it. Smith's attorneys also contend that police and prosecutors faked evidence, coerced witnesses and used improper or suggestive interviewing and identification techniques, according to Smith's lawsuit. The lawsuit, which makes claims for detention without probable cause, due process violations, fabrication of false evidence, supervisory liability, failure to intervene and liability of the city of Lorain for the alleged misconduct of its police officers under federal law, is assigned to U.S. District Judge David Ruiz. It also makes claims under Ohio law for intentional or reckless infliction of emotional distress and "respondeat superior," a legal doctrine that a party — such as the city of Lorain or Lorain County in this case — can be held responsible for the actions of its agents, such as police officers or other employees. Smith is seeking an undisclosed amount of compensatory and punitive damages as well as attorney fees, according to federal court records. Calling it one of the worst-investigated cases he and his investigators had ever seen, Lorain County Prosecutor J.D. Tomlinson dismissed the charges against Smith and Allen in Common Pleas Court in 2022. Both Allen and Smith argued their innocence for decades. Multiple courts upheld their original 1994 convictions on appeal. After Tomlinson announced in 2021 that he was revisiting the case and wasn't planning to seek new trials for Smith and Allen, Rosenbaum unsuccessfully tried to have Tomlinson removed from prosecuting the case. Rosenbaum then tried to sign on to represent some of the alleged victims in the Head Start case after Tomlinson announced plans to dismiss the charges. Smith's attorneys objected, arguing in court that Rosenbaum's actions were improper and might violate codes of conduct for attorneys. Rosenbaum withdrew from representing the victims before Common Pleas Judge Chris Cook could rule on the objections. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.