Judge rejects motions to overturn dismissal of 1990s Head Start case

ELYRIA — Lorain County Common Pleas Judge Chris Cook has denied requests by the city of Lorain and several of its former employees, as well as former assistant county prosecutor Jonathan Rosenbaum, to overturn his rulings in 2022 dismissing the charges in the 1990s Head Start child abuse case. The city also was acting on behalf of several former Lorain police officers when both it and Rosenbaum filed motions Dec. 9 seeking "relief from judgment." The parties had asked Cook to vacate both an order he handed down Dec. 29, 2021, granting Nancy Smith and Joseph Allen permission to seek a new trial, as well as his order dated Feb. 25, 2022, dismissing the charges against both defendants. He refused, ruling that the city and Rosenbaum "lack standing to be heard in this matter and have not sought leave" to intervene in the case, nor had they given any reason why they should be permitted to intervene. "These motions seek relief from certain rulings and entries made by this court a number of years ago in this criminal case," Cook wrote. "The basis for the filing of these motions is not entirely clear as none of the movants are parties to this action." "Should they wish, the city movants and attorney Rosenbaum may seek leave to intervene as outlined above. But for now, cased closed," he wrote, ordering the city's motion and Rosenbaum's motion both stricken from the record. Cook also wrote that he was concerned the victims in the case, who have a right to be heard, weren't aware of the filings. He further speculated that the case had to do with a pending wrongful conviction lawsuit against the city, some of its former police officers, Lorain County, Rosenbaum and the mother of one of the victims that Smith filed in February in U.S. District Court. That case remains in front of U.S. District Judge David Ruiz. That speculation "may, or may not, be accurate," Cook wrote. Message seeking comment on Cook's ruling were left for Rosenbaum and Lorain Law Director Pat Riley. Background A jury convicted Smith in 1994 on felony charges of rape, attempted rape and gross sexual imposition. Common Pleas Judge Lynette McGough sentenced Smith to 30 to 90 years in prison, while Allen got five consecutive life sentences on his charges. Read the Head Start case timeline All their appeals were denied until 2009, when then-Common Pleas Judge James Burge found Smith was entitled to a new sentencing hearing on technical grounds. Allen also was freed at that time, on bond pending further rulings. Burge threw out the case against Allen and Smith in June that year, but in 2011 The Ohio Supreme Court ruled Burge had overstepped his authority and reversed his order. Further appellate courts rulings upheld Allen and Smith's convictions, and the Ohio Supreme Court declined to hear the case. Having served 14½ years behind bars, Smith eventually reached an agreement with the Prosecutor's Office in 2013 that granted her freedom but didn't eliminate her felony conviction. She never went back to prison. Free for more than four years from 2009 to 2013, Allen also struck a plea deal with the Prosecutor's Office that sent him back to prison for 10 to 25 years but left him eligible for parole. In January 2021, Burge became chief of staff at the Prosecutor's Office when J.D. Tomlinson was elected prosecutor. Later that same year, Tomlinson said the Head Start convictions were unjust, and that he was looking to reverse them. Supported by Tomlinson, in December 2021 Allen and Smith asked Cook for permission to seek a new trial and then for a new trial, with the understanding that Tomlinson would then ask Cook to dismiss the nearly 30-year-old charges. That's exactly what happened, over the objections of Rosenbaum and several victims in the Head Start case. Smith, who was already out of prison, had her charges dismissed. Allen, who had been free on bond since December 2021, was totally freed by Cook's February 2022 order. Rosenbaum motion In his motion, Rosenbaum laid out the history of the case, noting that Burge had "improperly and illegally acquitted Smith" after the Ohio Supreme Court ruled he didn't have the jurisdiction to do so. Burge, he wrote, was ordered to resentence Smith but never did. She then "voluntarily" entered into an agreement with the Prosecutor's Office and was released with time served. That agreement, Rosenbaum wrote, forbade Smith from suing over her prosecution because she agreed to "not pursue any civil or equitable actions in connection with this case, including, but not limited to, any claim for wrongful incarceration." That sentencing agreement, Rosenbaum wrote, was "cast aside without evidence, without a hearing, and without notice to the city of Lorain, county of Lorain" the police defendants and Rosenbaum. When that agreement was terminated, it "paved the way" for Smith to sue for wrongful conviction in federal court and the state for wrongful imprisonment, Rosenbaum wrote. Reinstating Smith's sentencing agreement would halt her federal case, he argued, saying that the sentencing agreement was a contract and that he was unaware of "the existence, contents, and termination of the sentencing agreement." Rosenbaum argued he is an "indispensable party who was provided neither notice nor an opportunity to be heard as an intended third-party beneficiary to the Sentencing Agreement which is a contract." "Nancy Smith still has her benefit to the bargain while Rosenbaum has lost his," he wrote. "It is hard to imagine a more unjust scenario." Her conviction and admissions in the sentencing agreement she signed with the Prosecutor's Office were legitimate, Rosenbaum argued. He further argued that Tomlinson's actions helping to dismiss the charges opened the county up to lawsuits and financial liability, and that the entire basis for Smith and Allen being granted a new trial based on newly discovered evidence prior to their charges being dismissed was false. "In light of these facts and admissions it is clearly against public policy, impugns the criminal justice system, and 'has the tendency to injure the public welfare' to permit Smith to walk away from her misconduct while suing the governmental entities and employes that brought her to justice," he wrote. Smith, Allen and their defenders including the Ohio Innocence Project have long argued that they were unjustly convicted of child sexual abuse at trial. They alleged the children who accused them of abuse were coached by parents or Lorain police, and that the children couldn't pick Allen out of a videotaped lineup without help. In an email, Ohio Innocence Project Director Mark Godsey dismissed Rosenbaum's motion as "ridiculous." He added in a follow-up email that he wasn't even aware of the city's motion, because he wasn't served with a copy of it. "I was only aware of Rosenbaum's filings," Godsey wrote. Richard Parsons, an attorney for Joseph Allen, said he had no comment on the motions because they were only were filed in Smith's case, not in his client's case. Lorain motion In its motion, the city argued that Tomlinson had no legal authority to amend Smith's 2013 sentencing agreement in 2021. The 2021 amendment to the 2013 sentencing agreement "is not a plea agreement that falls within the prosecutor's authority, nor is it a determination in the outcome of a criminal case," the city argued. Also, only the Board of Commissioners has the authority to enter into contracts on behalf of the county, and the prosecutor can't enter a contract without the board's approval, the city argued. Furthermore, the Prosecutor's Office is "legally obligated to protect public funds of the county" but is acting against public policy, the city argued. The city also made arguments against the existence of "newly discovered" evidence that led Cook to grant permission for a new trial, a new trial, and a dismissal of charges. "When determining whether to grant leave to Smith for her to file a motion for a new trial, the court relied upon an incorrect standard and made an incorrect finding such that the plain language" of Ohio Criminal Rules "and the body of existing case law in this state is clearly violated," Riley and attorney John McLandrich argued on the city's behalf. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.