Judge rejects prosecutor Tony Cillo's attempt to overturn rulings in 1990s Head Start case

Visiting Judge Janet Burnside denied Lorain County Prosecutor Tony Cillo's request to overturn and vacate past judgments by the court that led to Nancy Smith and Joseph Allen being exonerated on sexual abuse charges in the controversial 1990s Head Start case. Cillo, a Republican in his first elected term, had alleged in court filings that the exonerations were "a result of a wide-ranging fraud" by his predecessor as prosecutor, J.D. Tomlinson, as well as Tomlinson's chief of staff, former Judge James Burge. In his filing, Cillo claimed Tomlinson didn't have authority to change an agreement Smith signed with prosecutors in 2013 that set her free from prison. He argued that if Burnside found there was fraud involved, she could vacate it. Tomlinson and Burge denied any wrongdoing. They said Smith and Allen were wrongfully convicted. Burnside ruled that four judgments made in Common Pleas Court in 2021 and 2022 were not void nor were they obtained by fraud. Cillo's request also was denied as "untimely because it is made over three years after the judgments were entered," Burnside wrote. "For that reason alone, the motion must be denied." She further wrote that all the parties involved, including Smith and Allen's alleged victims, were given the chance to participate in many hearings before Judge Chris Cook dismissed the charges in February 2022. This happened "transparently ... using established procedural mechanisms to accomplish that goal," Burnside wrote. Cillo "characterizes the parties as perpetrating a fraud on the court but in light of the record built here, 'fraud' is an empty, insulting label for these extensive proceedings," Burnside wrote. Cillo "seeks relief from the judgments of this court that the state sought and obtained in 2021 and 2022 when represented by" Tomlinson, she wrote. "Those judgments culminated in the then-county prosecutor's dismissing the indictment. A do-over is not possible." "Prosecution on that indictment ended at that point and no legal authority exists to re-institute it," Burnside wrote, citing legal protections against double jeopardy — trying someone twice for the same crime. Cillo said Monday that he would meet with his staff today to decide whether to appeal Burnside's ruling. Ohio Innocence Project Director Mark Godsey, one of Smith's attorneys, praised the decision. "The judge used words like 'empty' (and) 'insulting' to describe the state's arguments," he told a Chronicle-Telegram reporter in a text message. "I believe that is putting it nicely." Allen and Smith, a former Head Start bus driver, were convicted at trial in 1995 based on evidence collected by the Lorain Police Department. The pair has always maintained their innocence, saying evidence was withheld from the jury and that the children who accused them of sexual abuse were coached by parents and police. Numerous state and federal appeals were rejected. Eventually, Smith was freed by agreement with then-prosecutor Dennis Will in 2013, while Allen reached an agreement that made him eligible for parole. When he was elected in 2020, Tomlinson chose former Common Pleas Judge Burge as his chief of staff. Burge once set Smith and Allen free before a higher court overruled him. Tomlinson reexamined the case, Smith sought and was granted a new trial in December 2021 and Tomlinson's office asked Judge Chris Cook to dismiss the charges, which Cook did in February 2022. Smith sued Lorain County, the city of Lorain and multiple other defendants for wrongful conviction in federal court in 2024. The case is pending. Cook last year rejected an attempt by the defendants to intervene in the rulings he made that set Smith and Allen free. Cook and five other Lorain County judges then recused themselves from the case and Burnside, a retired Cuyahoga County judge, was appointed to hear further arguments. Sheriff Jack Hall and a special prosecutor, Ottawa County Prosecutor James VanEerten, are investigating Tomlinson. Neither man, both Republicans, have commented on the extent of the probe into Tomlinson, a one-term Democrat. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.