Tony Cillo: 'Wide-ranging fraud' by J.D. Tomlinson, James Burge led to Head Start case dismissal

Lorain County Prosecutor Tony Cillo has asked a judge to vacate several prior rulings in the controversial 1990s Head Start child sexual abuse case — alleging that defendant Nancy Smith was exonerated "as a result of a wide-ranging fraud" by former county officials. Cillo, a Republican, filed a 300-page document in Common Pleas Court on Monday containing his arguments and alleged evidence against former county prosecutor J.D. Tomlinson and his chief of staff, former Lorain County Common Pleas Judge James Burge. He is asking Visiting Judge Janet Burnside to vacate prior judgments by the court, including amendments to earlier sentencing agreements and rulings granting Smith a new trial on decades-old child sexual abuse charges. Smith, a former Head Start bus driver, was convicted in 1995, freed in 2013 then sought and was granted a new trial in December 2021. Tomlinson dismissed the charges against her and co-defendant Joseph Allen two months later, setting Allen free from prison and exonerating Smith. In the prosecutor's filing, Cillo wrote that the 2021 court proceedings before Judge Chris Cook appeared legitimate but "a thorough review of those events casts very serious doubt on this process" and were "generated as a result of a wide-ranging fraud" by Tomlinson and Burge. Burge and Tomlinson may have even broken the law on the road to exonerating Allen and Smith, according to Cillo's filing. "Their conduct is nothing short of appalling. They engineered one of the most flagrant frauds upon the entire state of Ohio in recent history," Cillo and his chief assistant civil prosecutor, Leigh Prugh, wrote in Monday's filing. Tomlinson didn't have authority to change an agreement Smith signed with prosecutors in 2013 that freed her from prison, Cillo argued. The court also didn't have proper jurisdiction, and Burnside has the authority to vacate a ruling the court made so long as there is proof it was the result of a fraud, Cillo argued. Though he denied he was arguing the criminal case over again, Cillo argued in the filing that the defense didn't present enough evidence to satisfy Ohio law when it comes to granting a new trial. The filing also included a series of emails between Burge, attorneys at the Ohio Innocence Project who represented Smith and others. Burge allegedly assisted the defense in creating legal arguments and shared information with Smith's legal team. Ohio Innocence Project Director Mark Godsey also gave Burge and Tomlinson permission to talk to a judge without him or his client present, according to emails Cillo included in his filing. The parties also got together to alter Smith's 2013 sentencing agreement with the county prosecutor's office, changing its original language to allow her to sue for wrongful conviction. "We are currently in the process of working with Joseph and Nancy's lawyers to get each of them their 'wrongful incarceration' compensation," Burge wrote in a May 23, 2022, email to Bernard Rosenthal, author of the book "Injustice in Ohio: The Wrongful Conviction of Allen and Smith." That and other emails proved Tomlinson and Burge were "conspiring" with Smith's attorneys, Cillo said, and increasing the county's liability in case Smith or Allen sued. "Looking at everything" done by Tomlinson and Burge to release Smith and Allen, "I felt I had to do something," Cillo said Monday. Tomlinson denied Cillo's allegations in a statement he sent to The Chronicle-Telegram. "The decision to exonerate Nancy Smith and Joseph Allen was mine, and mine alone," Tomlinson wrote. "The notion that I perpetrated a fraud upon the court or traded justice for the political support of one person is an outrageous lie — a ridiculous conspiracy theory born out of revenge and resentment." Tomlinson said the only people in Lorain County "that still cling to the fantasy of Nancy Smith and Joseph Allen's guilt are Tony Cillo and Jonathan Rosenbaum — the same men who either carried out the injustice or lacked the courage to correct it. "I look forward to once again exposing their cowardice to the world. My heart goes out to Nancy and Joseph. Apparently, spending a combined 40 years in prison for crimes that never occurred isn't enough," Tomlinson wrote. Rosenbaum is the former assistant Lorain County prosecutor who tried and convicted Allen and Smith. A message seeking comment was left for him. The involvement of Burge, who oversaw the Head Start case as an elected judge from 2009-2013 and made several controversial rulings on it that were later overturned by higher courts, also cast a cloud over the case, Cillo said. Cillo also alleged Burge and Tomlinson "directly sought to get the county sued" so that Smith could be compensated for alleged wrongful conviction, Cillo said. Cook in 2021 specifically asked Tomlinson if Burge was taking part in his office's attempt to dismiss the case. In open court, Tomlinson said Burge was not involved. Burge said Monday he didn't recall what his role was in drafting arguments used by the defendants in court. Tomlinson's renewed investigation into the Head Start convictions was done by Tomlinson, two of his investigators and an assistant prosecutor. Burge said he didn't participate in the re-investigation of the then 25-year-old convictions. He said the prosecutor's office sought to exonerate Smith. "I don't think anybody is alleging that the office wanted a different result," he said. "We believed she was innocent. We believed she had been wrongfully convicted." On the issue of the county's liability for Smith's alleged wrongful conviction, Burge said his job as a lawyer "is to make sure that justice is done, that justice is done for my clients, my opponents, everyone. "We made a big mistake convicting these people," Burge said. Godsey said Monday that it isn't the first time this year his client has faced a challenge like this. "This year Nancy Smith already defeated a similar motion by the city" of Lorain, Godsey said in a statement to the Chronicle. "This is more of the same. In my opinion, this is an attempt to help the wrongdoers avoid liability in Smith's lawsuit against them. They are apparently worried. This motion will fail like the one before it. There is no merit to this motion whatsoever." Cillo's filing on Monday contradicts what he told The Chronicle-Telegram's Editorial Board in an endorsement interview ahead of the 2024 general election when he said he didn't intend to revisit the Head Start case. "And then I saw the extent of what they (Tomlinson and Burge) did and what they represented to the court and what was going on," Cillo said. "I remember it well. I'm not running away from my comment." Asked if he believes whether Allen and Smith are innocent or guilty, Cillo declined to comment. Smith and Allen were convicted in Common Pleas Court in 1995 based on evidence collected in a controversial Lorain Police Department investigation and have always maintained their innocence. They allege there is no physical or forensic evidence of sexual abuse and that some of the child victims were coached by parents or police and have recanted their allegations in the years since. All of their appeals were rejected by higher courts until Burge entered the picture in 2009. That year, then-judge Burge acquitted Allen and Smith, even though the Ohio Supreme Court later overruled him. Smith reached an agreement with the prosecutor's office in 2013 where she accepted a sentence of 12 years with credit for all time served and was released after agreeing not to sue in state or federal court. Allen was ordered back to prison later that same year, but this time with a chance at parole. Smith publicly supported Tomlinson's 2020 election bid, a victory that resulted in Burge becoming his chief of staff. In 2021, Tomlinson announced that his office was reexamining the case, calling it "one of the worst investigations" he had ever seen. With Tomlinson's support, Allen and Smith asked Judge Chris Cook for a new trial, which he granted in 2021. Cook granted Tomlinson's request to dismiss the charges in February 2022. Burge was one of the first people to congratulate Smith on her charges being dismissed. Smith sued Lorain County, the city of Lorain, several former Lorain police officers, Rosenbaum and also Margie Grondin, the mother of one of her accusers, for wrongful conviction in U.S. District Court in 2024. The case is pending. Cook last year denied permission for the city of Lorain, its former officers and Rosenbaum to intervene in his rulings that set Smith and Allen free. He and five other judges later recused themselves, and Burnside was appointed. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.