Victims of Satan Released

June 25, 2009 permalink

A wave of hysteria two decades ago led to the conviction of hundreds of persons for satanic abuse of young children in daycare. We thought Gerald Amirault, released in 2004, was the last prisoner still serving time for satanic abuse, but Ohio has just released two more, Nancy Smith and Joseph Allen, after fifteen years behind bars.

Enclosed below are two articles from the Elyria Ohio Chronicle-Telegram and three photographs of Nancy Smith from other sources, before, during and after her ordeal. Releasing a grandmother does little to undo the damage caused by jailing the single mother of four children.

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Judge acquits Smith and Allen in Head Start case

Brad Dicken

ELYRIA — Nancy Smith and Joseph Allen have proclaimed their innocence in the controversial Head Start child molestation case for 16 years and on Wednesday, a judge finally agreed with them.

“I have absolutely no confidence that these verdicts are correct,” Lorain County Common Pleas Judge James Burge said before acquitting Smith and Allen of the charges that had kept them imprisoned from 1994 until earlier this year.

Cheers erupted from the few supporters of Smith and Allen who had accompanied the pair to what was expected to be a status conference to discuss the case.

Smith clamped a hand over her mouth as the weight of Burge’s decision registered with her. Later she said she just went “blank.”

“I couldn’t believe I was hearing that,” she said, still emotional as she discussed the case later in the day at the Lorain offices of her attorney, Jack Bradley.

The alleged crime

Smith, now 52, was a Head Start bus driver for the Lorain County Community Action Agency when the allegations against her surfaced in 1993. She was accused of taking the 4- and 5-year-old students who rode her bus to the Lorain home of Joseph Allen, a convicted sex offender.

The pair would molest, threaten and perform horrific sexual acts on the children, according to prosecutors.

Both Allen, now 56, and Smith said they didn’t even know each other and denied any wrongdoing.

The first Lorain police detective assigned to the case, Tom Cantu, now a sheriff’s deputy in Las Vegas, said Wednesday that he never believed that Smith was guilty of anything based on his investigation and told his superiors that no charges were warranted in the case.

He was later promoted, and the case reassigned. The new detectives, Cantu said, were under tremendous pressure to charge someone in the case.

“They were feeling pressure from the public,” he said, adding that in the early 1990s there was a climate of fear over child molesters in the United States.

Burge said Wednesday as he explained his decision to acquit the pair — just months after he had agreed to resentence them because of an error in their sentencing entries — that the detectives, social workers and parents of the alleged victims, though well-meaning, ended up convicting two people without enough evidence.

The interview techniques used by police when talking to the children were highly suggestive, Burge said, echoing a longtime complaint of Smith’s and Allen’s supporters.

Bradley said the interviews were so tainted that many of the children initially couldn’t even identify Allen as the man they accused of molesting them.

Surprise

Bradley and K. Ronald Bailey, Allen’s attorney, said they hadn’t expected Burge to acquit their clients at Wednesday’s hearing.

Bailey said he only told Allen to show up for the hearing because he feared his client — who, like Smith, has been placed on the county’s list of registered sex offenders — might be arrested if he wasn’t there.

Bradley said he thought Burge wanted to discuss how a resentencing hearing for Smith set for early next month would be handled.

Even as he sat listening to Burge lay out his rationale for acquitting Smith and Allen, Bailey said he could hardly believe what he was hearing.

“Once he said ‘judgment of acquittal,’ I thought, ‘We’re done. It’s over,’ ” Bailey said.

As they made their way from Burge’s courtroom to a bank of elevators in the county Justice Center, Smith and Allen’s supporters cried, exchanged hugs and praised Burge.

Allen said he never lost his faith that he would be exonerated.

“Thank God,” he said. “I’m free at last, free at last.”

Jury’s view

Edward Minney, one of the jurors who convicted Smith and Allen in their 1994 trial, said he agreed with Burge that there were problems with the case.

He said after he learned about the taped interviews of the children that he and his fellow jurors never saw, he began to question whether the jury made the right decision.

“So much evidence was suppressed,” he said.

Minney said he’s long been convinced he and the other jurors made a mistake that sent Smith to prison for 30 to 90 years and ultimately netted Allen five consecutive life sentences.

“I really feel bad that we convicted them,” Minney said. “… We should have been more questioning.”

It’s an opinion not shared by another juror, who asked that her name not be used.

She said she stands by her vote to convict in 1994.

“To all of us we felt there was enough evidence,” she said.

Acquittal & appeals

County Prosecutor Dennis Will said he still doesn’t believe that Burge had the authority to even consider resentencing the pair.

Burge’s decision earlier this year to resentence Smith and Allen hinged on an error his predecessor on the bench, retired Judge Lynett McGough, made when completing the sentencing entries in the case. Will concedes a mistake was made but argues that it should have been dealt with by a new sentencing entry.

The 9th District Court of Appeals dismissed Will’s appeal, which Burge said Wednesday allowed him to move forward with the resentencing and also to review the entire case.

Bradley and Bailey had both planned to ask for Burge to give their clients new trials.

Burge said his reading of the trial transcript and watching the interviews of the alleged victims as he prepared to send Smith and Allen back to prison convinced him to grant an old motion for acquittal — known in legal circles as a Rule 29 motion — that that was filed during the trial.

But Will said that just because Burge read the case doesn’t mean he knows the entire story.

“Reviewing the record is different than sitting through the whole trial,” he said.

Will said he’s always been open to reviewing any new evidence that would clear Smith and Allen but has never seen any.

Will and U.S. Magistrate Judge Greg White, who was Lorain County prosecutor when the case went to trial, said both Allen and Smith’s convictions went through the appeals process twice and were always upheld.

White said he couldn’t comment on the details of the case because of his current position, but he did wonder how Burge reached his decision.

“I’m at a total loss to explain this from a procedure standpoint,” White said.

Will said he will have to review Burge’s decision and will likely appeal.

K. Ronald Bailey, Allen’s lawyer, and Bradley both said that even if prosecutors win their appeal it won’t affect their clients now that Burge has acquitted them.

Will said he has to review that as well.

Looking back…

Joe Grunda, Allen’s trial attorney, said Allen never should have been convicted based on the evidence presented by former Chief Assistant County Prosecutor Jonathon Rosenbaum.

“I’m glad Burge had the intestinal fortitude to do something like that,” Grunda said.

Cantu said he too was pleased by Burge’s decision, but he never gave up hope that Smith would be exonerated.

“I knew it was going to happen, but I didn’t know when,” he said. “I’m just sorry it took so long.”

Rosenbaum, McGough and Lorain Police Chief Cel Rivera did not return calls seeking comment.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.

Source: Chronicle-Telegram Elyria Ohio

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Nancy Smith in 1993

Undated picture of Nancy Smith in prison with four children

Nancy Smith in 2009

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1990s sex abuse hysteria helped fuel Head Start allegations

Lisa Roberson

When horrific allegations of sexual abuse were leveled against Nancy Smith and Joseph Allen in the early 1990s, it was a different time.

There had been a wave of hysteria across the nation as cases with names like McMartin Preschool in California, Fells Acres in Massachusetts and Little Rascals in North Carolina were pressed against day care owners and child care workers accusing them of sexually molesting children in their care.

Those cases still were dominating the headlines when allegations surfaced in Lorain that Smith, a Head Start bus driver, drove preschoolers in the program to the Lorain home owned by Allen, where the children said they were sexually abused.

Even though both repeatedly said the accusations were false — they didn’t even know each other, they protested — police pieced together a criminal case.

The trial of the single mother of four and the unemployed man was sensational and emotional — the evidence convincing enough for the jury to deliver guilty verdicts, yet shaky enough to leave lingering doubts.

Those doubts prompted The Chronicle-Telegram’s Paul Facinelli to review the case, examining how it was investigated, how the children were questioned and what evidence was gathered.

For three consecutive years starting in 1996, Facinelli — with an assist by another Chronicle writer, Pam McMillan — dissected the case and provided readers details that the jurors never knew.

The first series focused on how Lorain police dealt with the child witnesses. Often they were questioned without being videotaped, and sometimes their parents were present and allowed to answer police questions for their children.

The second series revealed that the children had difficulty picking Allen out of a lineup. One boy was given 12 different opportunities to pick out Allen and failed each time.

The third series focused on the credibility of an adult witness who was a drug addict with federal drug convictions on her record.

Later, the case was the subject of an episode of the Discovery Channel series “Guilty or Innocent?”

But Smith and Allen remained behind bars. Their appeals failed each time, and the Ohio Supreme Court refused to hear the case.

It wasn’t until Lorain County Common Pleas Court Judge James Burge, who soon after his election developed a reputation for his less-than-conventional approach to his job, took on the case that a glimmer of hope surfaced.

Burge initially ordered Smith and Allen out of prison — granting them bond after determining that a sentencing mistake in the initial case gave him the ability to resentence them.

That reversal, which took the case back 15 years to when the pair were convicted and awaiting sentencing, gave Burge the opening he needed Wednesday, when he determined the convictions weren’t warranted and should be tossed out.

Contact Lisa Roberson at 329-7121 or lroberson@chroniclet.com.

Source: Chronicle-Telegram Elyria Ohio

Addendum: Back to jail.

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Sticklers for Procedure

Ohio's Supreme Court reverses an acquittal in yet another outrageous sex abuse prosecution.

Radley Balko, February 14, 2011

It would be difficult to cite a more shameful episode in the history of America's criminal justice system than the pedophilia panic of the 1980s and '90s. Police, prosecutors, and social workers all over the country were overcome by hysteria about the supposed proliferation of ritual sex abuse, a fear fed by a new movement of quack, Christian fundamentalist psychologists. Although dozens of convictions have been overturned, we are nowhere near uncovering all the damage wrought by this panic. The case of Nancy Smith and Joseph Allen shows how the same criminal justice system that rushed to convict innocent people can take decades to recognize and correct its mistakes.

Smith, a bus driver, and Allen, an unemployed laborer, were imprisoned from 1994 to 2009 after they were convicted of bizarre and grotesque crimes against children at a Head Start school in Lorain, Ohio, where Smith worked. Prosecutors alleged that Smith, a single mother of four, routinely kept several children on the bus after dropping the rest off at school. They said she would take the remaining children to Allen's home, or possibly somewhere else, where the two adults would molest the children, rape them, put them through all sorts of outlandish and perverted rituals, then clean them up, dress them, and put them back on the bus in time for Smith's evening route. (She had a second job delivering Meals on Wheels in the afternoon.) Smith was sentenced to 30 to 90 years in prison, while Allen received five consecutive life sentences.

In 2009 Smith's and Allen's attorneys challenged their sentences on technical grounds related to the wording of the sentencing orders. Most observers expected Lorain County Common Pleas Court Judge James Burge (who was not the judge who had presided over the trial) to correct the error and resentence Smith and Allen to the same prison terms. But Burge reviewed Smith and Allen's case files while preparing for the hearing and was appalled by the lack of evidence against them. Instead of resentencing Smith and Allen, Burge stunned the courtroom by acquitting them and ordering their release.

Prosecutors challenged Burge's decision, and last month the Ohio Supreme Court ordered Smith and Allen back to prison after two years of freedom, finding that Burge had exceeded his authority. The court ruled that Burge should have considered only the sentencing error, not Smith and Allen's guilt or innocence. Unlike Burge, the court did not review the evidence against Smith and Allen; its ruling was strictly about procedure. Smith and Allen have been permitted to remain free while their attorneys ask the court to reconsider its decision.

I don't know Ohio criminal procedure, so I'm not qualified to comment on the quality of the court's legal analysis. Commenting on the case at the Volokh Conspiracy blog, UCLA law professor Eugene Volokh writes that reversing a judge-ordered acquittal does not violate the U.S. Constitution's Double Jeopardy Clause. But like a recent decision by the U.S. Court of Appeals for the 9th Circuit that overturned a lower court's finding of actual innocence in a sex abuse case because the defendant's attorney had missed a deadline to file the claim, the Ohio Supreme Court's ruling starkly illustrates the difference between law and justice.

It is impossible to adequately convey the outrage perpetrated on Smith and Allen in a single column. (This long but compelling Crime Magazine article tells the story in great detail.) But here are the highlights.

There isn't a single piece of physical evidence against Smith or Allen. There were no hairs or bodily fluids from either of them on the children who allegedly were abused, or vice versa. There were no medical examinations of the children that found evidence of physical abuse. Prosecutors could provide jurors with no specific dates when the abuse allegedly occurred (denying Smith and Allen the chance to provide alibis), nor could they specify where it occurred. At one point in the trial the prosecutors alleged that Smith drove the children to Allen's home, and they attempted to show that one child could identify items seized from Allen's home after he was arrested. But when defense attorneys poked holes in that story—noting, for example, that prosecutors could find no one who had seen Smith's bus parked at Allen's home—the prosecutors changed their story, saying the abuse must have taken place somewhere else.

Smith and Allen claimed then, and still claim, that they had never met before they were arrested. The prosecution presented two witnesses in an attempt to link the defendants to each other. One was a child who claimed to have seen them together at a bus stop. But that child was at one point also supposed to testify as a victim. The problem for prosecutors: He alleged that Smith and another woman, not Allen, had abused him. So they didn't ask him about the alleged abuse. The other testimony linking Smith and Allen came from a Head Start employee who claimed to have seen Allen arguing with Smith after trying to board her bus. But a Head Start parent remembered that incident and said it was he, not Allen, who got into the argument with Smith.

The case got started when the mother of a Head Start student claimed her daughter told her that Smith and someone named Joseph had sexually abused her. Detective Tom Cantu of the Lorrain Police Department's Youth and Gang Unit interviewed the child, her mother, Smith, and Head Start employees. He found no evidence to support the allegations. But the mother persisted. She went to the press and started talking about the allegations to other Head Start parents. Rumors circulated. Soon the mayor and the Lorain County Prosecutor's Office got involved. The mother initially said Joseph was a white man (Joseph Allen is black) who owned a local gay bar (homophobia often factored into false ritual sex abuse allegations). When that suspect was cleared, the search for the "real" Joseph was on.

Six months after the initial allegations, Joseph Allen walked into a police station to report that his car had been stolen. An officer who had worked on the sex abuse investigation looked up Allen's criminal record and found that he had pleaded guilty to sexually assaulting a minor several years earlier. (Allen says he was falsely accused by the girl's mother after the two had a failed relationship.) Never mind that police had initially been looking for a white man and had no way of connecting Allen to Smith. Here was a Joseph with a prior sex crime conviction. The panic was on. New alleged victims came forward, and Allen was arrested.

Almost none of the alleged victims could identify Allen. In police reports and taped interviews that defense attorneys either never saw or saw only the day before the child witnesses testified, child after child failed to pick Allen out of police lineups, despite persistent prodding by investigators. Incredibly, prosecutors spun this inability to identify Allen as proof of his guilt. The children, they said, were afraid of him, so they were afraid to look at him or to point him out. Of course, the few children who did identify Allen were also presented as evidence of his guilt.

Interview tapes show investigators leading children with their questioning, refusing to accept denials, and urging the children to help them protect other children by identifying their attackers. One psychiatrist asked to review the tapes told a local newspaper: "If these interviews were the basis of testimony on which people were convicted, it is an affront to justice. If people were convicted, it was on profoundly tainted testimony."

Head Start records showed that many of the children who alleged repeated abuse had perfect or near-perfect attendance records throughout the period when they supposedly were forced to participate in depraved orgies during school hours. Other Head Start employees gave testimony showing how implausible it was for these abuse rituals to have occurred without anyone—parents, teacher, neighbors, or administrators—noticing.

Prosecutors dismissed all of this testimony as attempts by Head Start employees to stave off a lawsuit against them and their employer. And it's true that the mother who first came forward with allegations was already preparing to sue. Another was also facing a criminal investigation of her own; she was suspected of getting illegal prescriptions for painkillers from a dentist.

In the end, Smith and Allen were convicted because jurors simply did not believe that so many innocent children (four in all) could make up such lurid tales of abuse. One juror would later explain, "I don't think [the children] could have gone into detail like that if they were lying."

If this case is like other wrongful ritual sex abuse convictions, the Lorain jurors were right. The children didn't make up those stories; the adults did. The preposterous fantasies in these cases—which have included horrific accounts of cannibalism, ritual murder, penetrating children with knives, and forced sex between children and animals—sprang from the minds of parents, cops, prosecutors, and child psychologists charged with protecting the kids.

The district attorney who oversaw the Lorain investigation, Greg White, later served as U.S. attorney for the Northern District of Ohio and is now a federal magistrate. The assistant district attorney who prosecuted the case, an aggressive rising star named Jonathan Rosenbaum, forced the resignation of local newspaper columnist Paul Facinelli after Facinelli wrote a series of hard-hitting columns and reports questioning the Smith and Allen convictions. In 2002 Rosenbaum himself was asked to resign after several controversial sex abuse cases, including one in which he charged a woman for photographing her 8-year-old daughter in the bathtub and another in which he pursued a case based on allegations gleaned from now-discredited "recovered memory" therapy. (In 2008 Rosenbaum was paralyzed from the waist down after he was shot by his son in a hunting accident.)

It may be true that Judge Burge exceeded his authority in ordering acquittals for Nancy Smith and Joseph Allen. But so did White and Rosenbaum by prosecuting them in the first place. Although the prosecutors failed to turn exculpatory evidence over to Smith's and Allen's attorneys, the Ohio Supreme Court upheld the convictions in 1996. Because the bar for winning a new trial is set so high, appeals courts tend to dismiss such state misconduct as "harmless error." When prosecutors break the rules in their pursuit of a conviction, it's a harmless error. But when a judge, outraged at the appallingly weak case that put two apparently innocent people in prison, reaches beyond his authority to correct the injustice, the forgiving appeals courts suddenly become sticklers for procedure.

Radley Balko is a senior editor at Reason magazine.

Source: Reason