Hearing date set for Nancy Smith

January 29th, 2011

LORAIN — Nancy Smith said Friday, one day after the Ohio Supreme Court overturned her acquittal in the controversial Head Start child molestation case, that she’s not done fighting to clear her name.

“I will stand for myself and my innocence until the day I die because I did nothing wrong,” the 53-year-old Smith said.

Smith said she still was in shock from the Supreme Court decision ordering Lorain County Common Pleas Judge James Burge to throw out his 2009 acquittal of Smith and correct a technical problem with the sentencing entry that sent her to prison for 30 to 90 years following her conviction during a 1994 trial.

“I’m just stunned,” Smith said. “I’m shocked and I’m appalled.”

Burge said Friday he intends to comply with the Supreme Court’s order during a hearing set for Feb. 8. He will enter corrected sentencing entries for both Smith and her co-defendant, 57-year-old Joseph Allen, who was serving five consecutive life prison terms when Burge freed him a year and a half ago.

The Supreme Court didn’t specifically address Allen’s case in its decision Thursday, effectively leaving in place a decision by the 9th District Court of Appeals that reversed the judge’s decision to acquit Allen, 57.

Smith said she doesn’t understand why prosecutors continue to fight to return her to prison.

“This is my life,” she said through tears. “I have my children, I have my grandchildren and you want to take it away from me?”

County Prosecutor Dennis Will and the Ohio Attorney General’s Office have contended throughout the case that Burge overstepped his authority when he acquitted Smith and Allen.

Burge ordered Smith, 53, freed from prison in 2009 while he considered how best to deal with a technical error in the original sentencing entry in her case. Burge’s predecessor, now-retired Judge Lynett McGough, failed to note in the original entries that Smith and Allen had been convicted by a jury.

But instead of holding new sentencing hearings or issuing a corrected order, Burge acquitted the pair, saying that a review of the evidence and the trial transcript led him to believe they shouldn’t have been convicted.

Prosecutors didn’t deny that the original sentencing entries were flawed, but argued that Burge shouldn’t have ordered new sentencing hearings. Instead, they contended — and the Supreme Court agreed — that Burge should have fixed the problem with a corrected sentencing entry.

Will said Thursday that prosecutors were following the law and trying to prevent a decision that could have potentially reopened thousands of closed cases across the state because of technical errors.

Despite his belief that Smith and Allen are innocent of the allegations against them, Burge said he has no choice but to obey the Supreme Court’s order.

During the trial, prosecutors argued that Smith and Allen, who insist they never met before they were charged in the case, molested 4- and 5-year-old children on Smith’s Head Start bus route.

Smith said that there was never any proof to back up the allegations.

“I want people to quit looking at the law and look at everything else,” she said.

Will, who did not return a call seeking comment Friday, has previously said that he has reviewed the Head Start case thoroughly and has not found any evidence that leads him to question the verdicts in the case.

After Thursday’s decision was announced, attorneys for Smith and Allen said they are reviewing their options to continue the legal battle to keep their clients out of jail. They said they would take the case all the way to the U.S. Supreme Court if necessary.

The Supreme Court decision also leaves open the possibility that Smith and Allen will be able to refile their appeals in state courts. They lost their original efforts to have their convictions overturned on appeal.

Two other appeals of Burge’s decision to acquit Smith and Allen are still pending before the Ohio Supreme Court as well.

Contact Brad Dicken at 329-7147 or

False Child Abuse Allegations
Recent Cases

Truth in Justice