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December 6, 2002 Updated: April 17, 2011
Nancy Smith, center, with her four teenage children.
Nancy Smith, one of two people wrongfully convicted in this case 15 years ago, was released on bail February 4, 2009 pending a resentencing hearing.)
The ritual abuse hysteria that swept across the United States in the 1980s and early 1990s resulted in hundreds of innocent people being wrongfully convicted of committing a bizarre concoction of sexual acts on preschoolers. Most of those convicted were eventually freed from prison on appeal, but some innocent people remain behind bars. One of the most blatant cases of wrongful conviction occurred in Lorain, Ohio. There a politically ambitious prosecutor's office coaxed and manipulated a few Head Start preschoolers into testifying that they had been sexually abused repeatedly over a six-month period by their bus driver and some stranger -- two people who never even knew each other, but who are now serving life prison terms for crimes that never occurred in the first place.
by Lona Manning
In a stunning reversal, Nancy Smith and Joseph Allen have been ordered back to prison to resume their lengthy sentences after two years of freedom. This past January, the Ohio Supreme Court overturned Court of Common Pleas Judge James Burge’s February 2009 ruling that set them free from their living nightmare. Smith and Allen remain free for the time being while the decision is appealed.
Lorain County Prosecutor Dennis Will contends that he had to appeal Judge Burge’s action to a higher court because the precedent set by Judge Burge would have allowed thousands of others to appeal their sentences as well. Smith’s lawyer found a clerical error in her sentencing order, which led to Judge Burge’s decision to set aside their sentences. Lorain County successfully argued that Judge Burge had no authority to free them and should have merely corrected the error. While Prosecutor Will still maintains that Smith and Allen were guilty of heinous crimes against children, Judge Burge became convinced of the pair’s innocence after reviewing their case.
Judge Burge told the Chronicle Telegram that because of the ruling he has no alternative but to send two innocent people back to prison. “I never thought I would witness anything quite so tragic in the criminal justice system, much less be any part of it,” the judge said.
The dramatic twists and turns in the case have finally reawakened media interest. In recent weeks, Rachel Dissell of the Cleveland Plain Dealer has reported that:
Lorain Police Chief Cel Rivera, who was involved in investigating the case, admitted to Nancy Smith’s daughter that he now doubts Smith’s guilt; the long-suppressed video of the police line-up of Joseph Allen demonstrates that children were coached to finger Allen; (click here for (part 2) and (part 3) of the video); one of Allen’s child accusers now says he has doubts that he was molested.
Smith’s and Allen’s lawyers have vowed to continue to fight on behalf of their clients and the Ohio Innocence Project is also investigating the case.
Update: July 10, 2009
BULLETIN – Lorain County Common Pleas Court Judge James Burge has overturned the convictions of Nancy Smith and Joseph Allen. Smith, a single mother, was a bus driver for Head Start when she and Allen, a 40-year-old unskilled laborer, were accused of perverted sexual assaults on little children and have served nearly 15 years in prison since their convictions in 1994.
“The court has absolutely no confidence that these verdicts are correct,” said Judge Burge prior to acquitting the two.
In February, 2009, Judge Burge vacated their sentences on a technicality and agreed to set both free on bail. Smith was serving a sentence of 30 to 90 years sentence. Allen was serving five life sentences. Smith was convicted of taking several 4-and 5-year-old children on her bus to the Lorain apartment of Allen where the prosecution alleged they sexually abused them.
In vacating their sentences in February, the judge ordered a new sentencing hearing to be conducted later in the year. It was during his preparation for the sentencing hearing that he became convinced their convictions were unfounded. In what Smith and Allen expected to be nothing more than a routine status hearing on June 25, 2009, the judge surprised all concerned with his ruling.
In a quiet, low-key manner, Burge announced that after reviewing the trial transcript and court records that he had “absolutely no confidence” in the original guilty verdicts. Click here for a You Tube video for Judge Burge’s announcement:
While stressing that he thought the detectives, social workers and parents in the case were trying to do their best, the judge explained that the pre-trial interviews of the children were so suggestive that the children’s testimony should have been ruled inadmissible. He also said that he found that “exculpatory” evidence – evidence favorable to the defendants that would have supported their innocence – was kept from their defense attorneys, or was handed over them too late for them to use effectively. This violated the defendants’ constitutional rights to a fair trial.
Burge also noted that he reviewed the preschool attendance records, which were not used in court by the defense. These attendance records, if accurate, make it clear that neither Smith nor Allen could have snatched children away from school to assault them because the children in question were marked as “present.”
When Burge vacated Smith and Allen’s length
y sentences earlier in 2009, the Lorain County prosecutor’s office vowed to return both to prison. Judge Burge vacated Smith’s sentence after Smith's lawyer, Jack Bradley, brought the successful appeal of her sentence due to an error in the wording of her original sentence order. Their sentencing orders were supposed to include the phrase "found guilty by a jury," but did not. Bradley had realized that an Ohio Supreme Court ruling from 2008, laying out what is necessary for a proper sentencing entry, made it possible for him to file this new legal appeal. When the judge provided the relief sought, Smith's lawyer praised Judge Burge for "not act[ing] as a rubber stamp" and automatically re-sentencing Smith to her original sentence. "He's a legal scholar; he looks at issues very, very carefully."
[Click here to watch the scene in the courtroom at YouTube].
Joseph Allen’s attorney, Roland Bailey promptly filed the same claim on Allen’s behalf, and Judge Burge responded by vacating his sentence as well.
When Judge Burge announced the acquittals on June 25, gasps and applause broke out in the courtroom. Smith, now 51, covered her face with her hands and cried. She and her co-defendant were sitting within three feet of each other, but even at this incredible turn of events, they did not look at each other. As they had claimed all along, they never knew one another and still do not know each other do this day.
Afterwards, Smith struggled to explain to the Morning Journal what over 14 years in prison for a crime she never committed had done to her and her family: “It was horrible because I never finished raising my kids. They started having children and I wasn’t there for them. My daughter lost children and I wasn’t there for them. My dad died and it was just horrible.” Nancy is going to look for work and continue to rebuild her life with her family.
Although he has no money and serious health problems, the 55-year-old Allen is brimming with hopeful plans – he wants to travel to meet all the people (many of whom learned about this case through crimemagazine.com) who wrote to him and supported him through this years in prison. He said he wants to do charity work to help African orphans, and he intends to help others who’ve been wrongfully convicted “as long as God put breath in me.”
To date, the Lorain County authorities have not stated if they intend to appeal Judge Burge’s ruling but the Chronicle Telegram has reported that they will “likely” appeal. Greg White, the district attorney at the time of the original trial, told the Cleveland Plain Dealer he was “at a total loss” to understand why Burge had freed the pair. (White is now a federal magistrate judge for U.S. District Court for Northern Ohio.) In a strange twist of fate, Jonathon Rosenbaum, the assistant district attorney at their original trial, was shot in the back by his son and is now reportedly paralyzed.
“Judge Burge made a very courageous decision, but I think he made the right decision,” Smith’s attorney, Jack Bradley, told the Morning Journal after the hearing.
“We certainly appreciate all the work he has done and we are lucky justice has been served in Lorain County,” Bradley said.
Bradley said the acquittal was completely unexpected.
Joseph Allen told the Morning Journal that he thanked God for bringing the case to an end. “I didn’t expect it, but I know God is able to do all things.”
Allen was joined by several family members at the hearing, who all seemed to be equally surprised.
In other post-hearing interviews with the Morning Journal, relief at the long-awaited vindication was palpable:
“We are just glad it’s over, because it’s been a long time coming,” said Allen’s niece, Dana Capers.
“Thank god it’s over with, I have been praying for it to end and it feels good to see justice and peace,” said another one of Allen’s nieces, Beverly Donald.
Seated next to Allen during the hearing, his attorney, Ronald Bailey, thought to himself, “We’re done.”
“I thought we would get to this point some day, but I didn’t think it would be today or even this year,” Bailey said, who has been working on Allen’s case since 1997. “I figured it would be some sort of good news, but I didn’t think it was going to be this good of news.”
This author is indebted to the Morning Journal and Chronicle Telegram, especially reporters Jeff Green and Brad Dicken, for their on-going coverage of this breaking news story.
In an editorial published on Feb. 6 following the vacating of Smith’s sentence, the Morning Journal revealed: "We find ourselves increasingly convinced a great injustice was done to Smith." Reader comments to the websites of both the Chronicle Telegram and Morning Journal are mixed, but many agree that a great injustice was done, and some refer to Crime Magazine’s "The Shame of Lorain" article as having convinced them that Smith and Allen are innocent.
Some social analysts attribute the daycare child-abuse panic of the 1980's and 1990's to evangelical Christians who were convinced that Satanists lurked everywhere. Others said it was a backlash against working mothers who put their children in daycares. Some pointed to the passage of the 1974 Mondale Act, which provided federal funds to investigate child-abuse cases. Still others thought that politically ambitious prosecutors decided to go crusading after child molesters, real or imagined, to further their careers. Then there were the child-protection "experts" who told the police that if children said, "no, nothing happened," it really meant that the children were too frightened to speak.
Perhaps it was all of these reasons working together that created the potent witches' brew of fear, superstition, guilt and hysteria that characterized the child-abuse frenzy. "During a prosecutorial fury that swept the country from 1980 to 1992, there were at least 311 alleged child sex rings investigated in 46 states.... Children told stories that were appalling.... sex rings were run by Satanic cults, dozens of children raped by scores of adults, dozens of babies were killed and eaten, horses slaughtered in playrooms, children raped by men in black cloaks while the women waited in line for their turn," Andrew Schneider and Mike Barber wrote in 1998 in the Seattle Post-Intelligencer.
On the basis of these types of accusations, hundreds of people were arrested and thrown in jail, and scores were convicted, and sent to prison. One day they were respected members of their communities; the next, they became despised outcasts. It could happen to anyone, anywhere -- to a preschool teacher in Texas, a grandmother in Massachusetts, a father in North Carolina -- all found themselves in court, charged with abusing children in perverted ceremonies.
Scott and Brenda Kniffen were arrested without warning one morning in April, 1982, at their home in Bakersfield, Calif. Scott Kniffen had offered to act as a character witness for a friend who had been accused of molesting children by a mentally ill relative. For standing up for their friend, the Kniffens also fell under suspicion. While awaiting trial, Brenda was attacked in jail by the other prisoners, who beat her up and threw feces at her. Their two sons, 6-year-old Brian and 8-year-old Brandon, were questioned by a zealous prosecutor who promised them that they would see their parents if only they would answer the questions. So after hundreds of denials, the Kniffen boys finally agreed that they had been hung from hooks, made to pose for child pornography, and raped. (No photographs, let alone hooks, were ever found.) But the Kniffen boys were not reunited with their parents. Once the state had "saved" them, they were tossed into the foster-care system and forgotten. Brian lived in 16 different homes before he and his brother were old enough to seek legal help and recant their testimony. Their parents served 14 years of a 240-year sentence before an appeals court judge set them free in 1996. (http://www.edwardhumes.com/books/mean/index.shtml#witchhunt)
Bobby Fijnje was a 14-year-old who babysat at his family's church in Florida. He spent two years in adult prison before being acquitted in 1991 of charges that he'd molested the children in his care. His parents were urged to accept a plea deal for their son, and told that he would likely contract AIDS in prison. When they proclaimed their son's innocence, false stories were leaked to the media that accused them of being child pornographers and drug dealers. The jury was so disturbed by the conduct of the case that they wrote to Florida Attorney General Janet Reno:
There was a high degree of improbability of certain allegations raised against the defendant. For instance, alleging that he [Bobby Fijnje] drove a child to the American Foreign Legion Hall, when no representative of that facility saw the defendant on the premises. And the fact that no adult ever saw the defendant drive a car, a task that he claims he has yet to attempt.
Other allegations have the defendant taking children where there were witches and in which he dressed as a clown. Again, no one ever saw anyone dressed as a witch nor the defendant as a clown. Further allegations of a baby being killed and a cat's neck being broken were unfounded.
In the Fells Acres Preschool case in Boston, a pediatric nurse interviewed dozens of little children. Wall Street Journal columnist Dorothy Rabinowitz reviewed the interview transcripts and wrote:
Over and over, the interviews show, the children say nothing happened, nobody took their clothes off, they know nothing about a magic room or a bad clown. But the interviewer persists. In the world of these examiners, children are to be believed only when they say abuse took place. Otherwise, they are described as "not ready to disclose."
Violet Amirault, her daughter Cheryl, and her son Gerald were imprisoned for molesting the children in their daycare in 1987. At one point, a judge agreed to parole Violet and Cheryl, pending a review of their sentence. The women reached the gates of the prison when they were told that the prosecutor had gotten the release overturned, and they were led back to their cells. (Mrs. Amirault and her daughter were eventually paroled in 1995, but Gerald is still in prison.)
"The Marquis de Sade could hardly have improved on this [ritual abuse] horror show," wrote Mark Sauer, a journalist for the San Diego Tribune and an early skeptic of child sexual-abuse cases. Another skeptic was FBI Special Agent Kenneth Lanning, who studied hundreds of such cases and concluded that there was no evidence to back up the wild charges the children were making. Cognitive psychologists such as Dr. Stephen Ceci of Cornell University demonstrated that young children could easily be influenced to say things that weren't true.
The ritual-abuse panic seemed to have run its course by 1993 with the acquittal of Dale Akiki, a volunteer at a church-run daycare. Mark Sauer wrote: "When (Akiki) was acquitted after 2 1/2 years in jail awaiting trial, jurors said the only crime committed in the case was the misguided prosecution itself."
Most of those convicted in the ritual abuse trials were eventually freed from prison on appeal. Those released after serving lengthy prison terms, having lost their reputations, their homes, their careers and their families, were the lucky ones. The ritual abuse hysteria that swept across the country has left some forgotten victims behind. The same month that Dale Akiki was acquitted, police in Lorain, Ohio, a fading industrial town on the shores of Lake Erie, arrested an unemployed laborer named Joseph Allen. Allen, along with Head Start school bus driver Nancy Smith, was declared to be a perverted child molester. They remain in prison to this day.
Anatomy of a Panic
An agitated young mother brought her 4-year-old daughter to the hospital on May 7, 1993. Margie Grover said her daughter Nicole attended the Lorain Head Start school, and that day her daughter had come home and said, "We didn't go to school today." Upon further questioning, Grover said that Nicole told her that her bus driver had taken the children to see a man named "Joseph," who tied her up, taped her eyes, and molested her with a stick.
Grover (the names of the children and their parents have been changed), said she found a piece of the branch in the girl's clothing. Officers attending at the hospital noted in their report that most of the information was provided by the mother and the attending nurse, not by the little girl herself, who was physically unharmed.
The case was assigned to Det. Tom Cantu of Lorain's Youth and Gang unit. Cantu had served over 20 years on the force, following a four-year stint in the Marines, and had been named Ohio "Policemen of the Year" in 1992 by the Veterans of Foreign Wars. When he started the investigation, he had an accused person, Nancy Smith the bus driver, her unknown accomplice by the name of "Joseph," an unknown location, and a definite date.
It quickly became clear to Cantu that the incident couldn't have happened as Nicole -- or was it her mother? -- had described. Smith's bus log and the odometer readings confirmed that she had driven her usual route on May 7, and Nicole's teacher marked Nicole as "present." Sherry Hagerman, the aide on Smith's bus that week, said that nothing had happened. The abuse was supposed to have happened in the afternoon. But that's when Smith went to her second job, driving for the YMCA Meals-on-Wheels program. Her supervisor at the "Y" confirmed that Smith was a most reliable driver and that she had shown up for work as usual that day.
Cantu spoke to Smith's co-workers, neighbors, and friends. They scoffed at the idea that Smith, a single mother with four teenage children, was a child molester. She held down three part-time jobs, often working 12 hours at a stretch. Her social life revolved around her long-time boyfriend coming over to make dinner and the occasional night out at the Bingo Hall with her mom or a girlfriend. A more unlikely candidate for a child molester would be difficult to imagine. In fact, in the initial story told by Margie Grover, Nicole described Smith as the protector in the situation. Nicole said that Smith was angry with "Joseph" for molesting her, and that Smith was "going to get a knife and kill "Joseph."
Cantu interviewed little Nicole on May 13, but most of the information came from Margie Grover, who insisted that her daughter was telling her lots of details at home. In front of Cantu, however, Nicole hesitated, saying, "I forgot," "I don't remember that," and "Can we go home now?" Repeatedly questioned by both Cantu and her mother, she finally agreed that she had seen "'Joseph's' pee pee."
Cantu went to the Head Start school on May 25 and questioned 11 children who were on Smith's bus route. They were all gathered together around a table -- 3, 4 and 5 year olds -- along with the broad-shouldered, 6'1" Cantu. His police report for that day notes, "The children were questioned if Nancy had ever touched them in a bad way, or in any way which would hurt, or upset them, and each one stated that she has never touched them. The children were questioned if they know anyone named "Joseph," and they all indicated that they did not. All of the children stated that they liked Nancy, their bus driver, and that she was nice."
"Kids at that age are basically honest," Cantu believed. But that interview wasn't the end of the matter. Nicole's mother had been spreading the alarm to other Head Start parents, who in turn questioned their children. Had they heard of "Joseph"? Had they been taken to "Joseph's" house? "It started with one child," recalled Cantu, "then came up with another child, it really mushroomed." The veteran officer believed that the parents were influencing the children: "After (the children) went home (from school), the whole thing started changing.... (Margie Grover) started the whole thing. She got together with other parents and they kind of had a meeting and they kind of got stories together."
Emily Oliphant, who worked part time as a bus aide for Head Start, brought her son William to the police station. She told Cantu she had caught him in his bedroom a few weeks earlier, naked, straddling a big teddy bear. When she asked what he was doing, he said that "Joseph" had taught him about "humping." But when Cantu questioned little William, the boy couldn't repeat his mother's story about "humping," and "he didn't know anyone, black or white, named 'Joseph.'"
Cantu said that from the jumbled descriptions of "Joseph," he couldn't tell "if the guy was white, black, or a white guy with black spots, or a white guy with black spots -- you're talking to little kids." "Joseph" was a white man who painted his head and hands black, said one child. "Joseph" had blue eyes, said several others. But as noted, Cantu suspected that their parents heavily influenced the children's testimony. "One day they tell you one story, then they go home, and all of a sudden they have the same story." For example, at least two other children claimed that they'd been molested with a stick, just as Grover said her daughter had been molested.
Cantu recalled, "I took the kids to different houses where they said this thing happened and none of it panned out. The kids gave descriptions of the interior of the house and different pictures that might have been in the house, (but) any house we went into, nothing matched anything the children stated." He also canvassed the neighborhood where the suspects lived and asked if anyone had seen a bright yellow school bus parked there all afternoon. No one had.
The investigation wasn't two weeks old when Cantu was summoned to the mayor's office. When he arrived, there was Margie Grover, who turned up the heat by complaining to the mayor that no arrest had been made. Cantu found himself getting "into a tiff" with her, but he held his ground about proper police procedure. "I even told the mayor, 'just because somebody accuses, they say Nancy Smith did it, I have to prove she did it, I can't arrest her on your say-so.'" Cantu ended up phoning the police chief to come down to placate her.
A caseworker in the Child Protection Program met with Grover and urged her to leave the investigation to police and to stop sharing specific information with other parents, which might "contaminate" the case. Grover's live-in boyfriend, Dan Palermo, wanted a copy of Nicole's medical report, but since he wasn't Nicole's father, the staff refused to give it to him. "By the end of the meeting (the) mother seemed to understand that she could be doing more harm than good if she continued on her present course," the caseworker wrote, "however I am not certain this will change anything in the family's approach."
"There is no proof that a male suspect named "Joseph" exists at the present."
The Head Start semester ended on May 27 with a picnic in the park. The day after, Margie Grover, her identity concealed, appeared on a local TV station's newscast with the dramatic news that a molester was stalking the Head Start kids -- and nobody was doing anything about it. She said she had to take this step, "for someone to do something about this case and get the ball rolling." Palermo accused the police of engaging in a cover-up.
Grover even identified a suspect, a man her daughter had pointed out when he was cutting the grass outside his house. He was the owner of a gay bar -- and a white man. He was eventually cleared.
After the accusations became public, Cantu took Smith for a lie detector test "and they said that she didn't do that crime any more than me or the guy that gave the test."
Cantu concluded that there was no case against Smith. He reported: "There is no proof that a male suspect named "Joseph" exists at the present.... all of the victims in the case have been interviewed with much inconsistency and lack of good evidence."
But the case didn't end there.
White and Rosenbaum
Greg White, a handsome former Marine, had become Lorain County Prosecutor on his 31st birthday in 1981. A year later, attorney Jonathan Rosenbaum joined his staff. He rose to become chief deputy prosecutor in 1988. Their partnership would continue for 20 years before ending in bitter acrimony. They both developed reputations as aggressive prosecutors. As the Morning Journal noted:
Before White and Rosenbaum.....(g)raft and corruption were common. A lot of people who were lazy and greedy were splitting the pie. Time after time in the 20 years they have worked together, White and Rosenbaum have butchered the sacred cows. Wealth? Community standing? Political party? Personal friendship? Forget it.
The team of White and Rosenbaum also had a lot of support among Lorain police officers. Said one, "Being prosecutor comes naturally to (Rosenbaum). If you're going to commit a crime, don't do it in Lorain County, because he might be on the case."
White was a star of the local Republican Party, a political up-and-comer in an area that was heavily Democrat. Margie Grover's public accusation that nothing was being done to catch a child molester came at a bad time for White, who was planning to run for Congress. (He narrowly lost the race.)
Shortly after Cantu made his recommendation that the investigation against Smith be concluded, he was promoted to sergeant, and transferred out of the Youth/Gang unit. Cantu had been working on the case alone, in addition to the rest of his caseload. After Grover went to the media, five officers were assigned to the Head Start investigation. The questioning of the children, ages 3-to-5, began anew with the special task force.
"Amy was asked, did Joseph make you touch him? Amy stated, "No." -- from the police reports
When Child Protective Services first interviewed Nicole Grover in May, she denied that anyone had touched her. After several months and more interviews, she agreed with Det. Eladio Andujar that Nancy and Joseph had, in fact, molested her. In this excerpt of one of her conversations with Andujar, Nicole is shown a drawing of a naked body and Andujar presses her for information.
Q. Which parts did Joseph and Nancy touch? Point to it with a pen. Which did they touch, Huh?
A. My back.
Q. Did they touch this?
Q. What is that?
A. A butt.
Q. What else? Oh, this part?
A. A belly button and a pee pee.
Q. He touched those areas?
Q. Who touched that, Nancy or Joseph or both?
A. Nancy and Joseph.
Preschooler Johnny Givens got involved in the case at the end of May. His mother had seen the news reports and she remembered that her son had complained of a sore bottom the previous winter. The police report states, "(Johnny) was questioned if Nancy ever did anything to him, or if she had ever touched him, or ever touched his penis... (Johnny) stated that she had never done anything to him, and had never touched him in any way..." He agreed that Nancy had a boyfriend "who rode the bus sometimes" and that he was white. He also said this boyfriend had never touched him. His parents claimed that their son had said "Nancy's boyfriend had put a stick up his butt one time on the bus," but Johnny told the police that "this didn't happen, and that no one put anything up his butt."
By the end of July, when Johnny was re-questioned by the new task force, he was driven around and asked to point out which house he'd been taken to. He still spoke of Nancy's "boyfriend" as being a white man.
Antonio Pena's father also drove his young son around town, looking for Joseph's house, and was aggressive in urging his son to cooperate with the investigation: "Do you remember what I told you about your little sister? Do you want him to get her? And do those things he did to you? Daddy doesn't want that either. You have to help your sister and all the other little kids." Det. Andujar also appealed to Antonio to cooperate: "You help me find this guy and I will put this guy away."
Two weeks after Margie Grover's revelations about child molesters appeared in the media, 4-year-old Jason Andrews's mother reported that her son had told her he'd been molested right on the bus by someone named Alan. The police report notes:
He also stated that Alan looked like Al, a neighbor... who is a Hispanic male. This officer attempted to speak with Jason who was very shy and had to be coaxed to reply to questions. Jason related that Alan rides the bus sometimes and helps out the driver.
But police couldn't find a Head Start employee or volunteer who matched this description. They did question Elizabeth "Angel" Powell, a bus aide, because little Amy Williams named her, not Nancy, as being the one who took the children to "Joseph's" house. Powell, 25, wasn't very popular with the other bus drivers. Her flirting turned some of the men off, the women thought she dressed like a floozy. They also thought she was overly affectionate to the children -- bus drivers weren't supposed to hug and kiss the students. However, no charges were brought against Powell on the basis of the little girl's accusation. Powell would reappear at a crucial point in the trial.
Joseph Allen Walks into the Case
In October of 1993, six months after the investigation began, a black man named Joseph Allen walked into the Lorain police station to report a stolen vehicle.
Allen had pled guilty in 1985 to sexual battery on a young girl and served a three-year sentence. He claims that the girl's mother, who was angry with him for breaking off their relationship, framed him. Rosenbaum was the prosecutor in that case, and in pre-trial documents he filed in conjunction with it, he claimed that Allen had a prior robbery conviction. In fact, Rosenbaum had confused Joseph Allen with another man by the same name. There was no medical or physical evidence against Allen in the earlier battery case -- the girl had refused to submit to a medical exam. Allen says he pled "guilty" on his lawyer's advice: "I only know my attorney had me to sign some papers because he told me cases like them was hard to win." Guilty or innocent, Allen had the conviction on his record and Rosenbaum considered him to be a "sick, demented pervert."
Allen, an unskilled laborer originally from Alabama, was nearing 40. He lived in public housing and spent a lot of his time at the nearby Catholic Charities. "I didn't have any problem with the law until my car was stolen by these teenage runaways. From that moment on everything started going down hill. The police started following me everywhere I went."
Det. Joel Miller remembered the little boy who'd said someone named Alan had molested him. What if he was talking about Joseph Allen? Miller discarded the other details in the police report -- that Alan looked Hispanic and rode on the busses -- and focused on the name.
Allen was arrested on Nov. 3. "They told me that I was being charged (about) the teenager that had stolen my car." The teenager, a 15-year-old runaway, had claimed that Allen had offered her money for sex. "This is all a lie," Allen claims today. Since he was extremely poor, he says, he had no money to offer anyone.
Allen agreed to let the police search his home. He lived in a small cottage with no second floor and no basement, so his house didn't match the children's descriptions, because they spoke of going upstairs in "Joseph's" house or down to the basement. The police found items that they thought no bachelor should have: sheets decorated with cartoon characters, and toy cars and trucks. (Allen later explained that "I got those things from Catholic Community Services" for the children of his friends.)
The Lorain task force prepared a photo lineup that included Allen and pictures of five other black men. Their first stop was Margie Grover's house, where Nicole failed to spot Allen as "Joseph." On their next two stops, the children also failed to pick out Allen. In fact, of the 10 children shown the photos, nine children either picked no one or picked someone else. When a child identified someone other than Allen, the police questioned the choice: "Are you sure? Look carefully." For the children who failed, the police report adds an interpretative note: One child "was noted to stare at the pictures as if he was scared of something." Another child "appeared to be scared."
A few days later (the date isn't given in the police report), Margie Grover phoned Det. Andujar and told him that Nicole had, after all, recognized "Joseph" in the photo lineup. Nicole and her mother had initially described "Joseph" as being white, and previously had even pointed out a white man as a suspect. Joseph Allen has a dark complexion and could never be mistaken for a white man, but Grover brought Nicole into the station to positively identify Joseph Allen as being "Joseph." Smith's lawyer would later claim that Nicole's identification of Allen only happened after his picture had been published in the newspaper.
Seven children were asked to come to the police station for a live lineup consisting of Allen and four other black men. Just as with the photo lineup, the police report notes that the children who did not pick Allen exhibited signs of fear or avoidance.
Little curly-haired William Oliphant paid three separate visits to the lineup room. His efforts were like a gullible passerby taken in by a street conjurer's feats with cups and balls, and raise the suspicion that he was being clumsily coached. On his first trip, Allen was in the No. 2 spot. William picked No.1 and No. 3, and after several "are you sures?" the session was ended. The investigators decided to give him another chance. But the men in the lineup had been shuffled around and Allen was now in the No. 4 position. William came into the room, and immediately picked No. 2, the position Allen had just vacated. This session also ended without William successfully picking out Allen.
A little while later, after Allen had been shuffled into the No. 3 spot, William was brought back in for another try. This time, William picked No. 4, the position Allen was in on the previous visit. He failed to spot Allen after a total of 12 tries.
During the lineups, Allen and the rest of the men in the room were required to remove their shirts. Some of the children had said that "Joseph" was a white man who painted himself black, or was a black man with white spots. Allen explained, "I have burns scarred on my stomach, when I was burned when I was a child." The police later claimed that these scars were the white spots the children were talking about.
Now that the police had found their "Joseph," they turned their attention back to Nancy Smith. On Nov. 5, she was arrested at her home and taken away in handcuffs in front of her children and her parents. At the arraignment a few days later, Head Start parents and Smith's supporters packed the courtroom, as a weeping Smith entered a plea of "not guilty."
"Child rapist!" came the cry from the parents' side of the courtroom.
"You'll rot in hell!" one of Smith's relatives shot back.
Margie Grover was on hand to tell the journalists some new allegations: Nancy Smith had picked her child up early and dropped her off late. Her daughter had come home with needle marks on her leg. "My daughter will have to go to counseling for the rest of her life!" she complained, and accused the school of marking her daughter "present" when she was really absent. At Joseph Allen's arraignment, Grover yelled and cursed at Allen until the judge ordered her out of the courtroom. "Everybody's going to pay for what they did," Grover warned. Smith's relatives suspected -- correctly as it turned out -- that Grover was paving the way to file a major civil suit against the school.
The Head Start parents came from working class and poor backgrounds. No one suggested that their economic status prevented them from being loving and caring parents. Wrong side of the tracks or not, they were entitled to have their children fully protected from molesters. On the other hand, Smith's family felt it was significant that most of the parents who accused Smith had been to the courthouse before -- convicted of drug dealing or drug possession or driving under the influence. Some of them had chaotic personal lives and money troubles that had also landed them in court.
The chief accuser, Margie Grover, had been convicted of distributing cocaine out of her home and had avoided prison by agreeing to testify against others. As a result, one of the men she testified against came to her house and attacked her. This information was kept from the jury in Smith and Allen's trial, who saw only a concerned mother, described as "a young, fashionable woman in a long print dress," not a mother who would expose her young child to the dangers of living in a house with drug dealers.
In the months leading up to the trial, two more children were brought to the police station by their mothers to report that Nancy and "Joseph" had victimized them. The children's' stories matched what the other children had been saying, and what the newspapers and television stations had been reporting: they'd been taken to "Joseph's" house by Nancy. One child added that he'd been threatened not to tell anyone or he would be killed.
Both of these claims were shown to be bogus. The police determined that one child did not attend Head Start when Nancy worked there, and the other had a different bus driver. Children's Services reported that one of the children was a neglected child whose father was a crack addict, and he'd been in foster care in the past.
The police had been given a first-hand demonstration of how children could say and believe things that were not true, and how parents could encourage their children to come forward as "Joseph's" victims -- but apparently this didn't give them second thoughts about their case against Smith and Allen.
The trial was scheduled for May of 1994, but was postponed to July. The previous December, Smith's father suffered a stroke, and in June, her mother died from an aneurysm. Her relatives and friends banded together to raise money for her defense and hired Jack W. Bradley -- the same lawyer who, years before, had counseled Joseph Allen to plead "guilty" to sexual abuse. Allen got a court appointed lawyer, Joseph R. Grunda. Judge Lynett McGough refused Bradley's motion to try Allen, with his prior conviction, separately from Smith, who had no criminal record, saying that it would be wrong to put the children through the ordeal of testifying twice.
The coverage of the upcoming trial stressed the trauma to the children and parents. The children, explained the Morning Journal, "may have to face the terror of testifying against (Allen) in court, despite his alleged threats to kill them if they told about the abuse."
Smith and Allen went on trial on July 25, 1994, at the Lorain courthouse before Judge McGough and a jury. Bradley was incensed that the prosecution hadn't turned over its witness lists or other records until the last minute. The Morning Journal reported "high emotions" between Bradley and Rosenbaum as they "argued, interrupted each other and raised their voices during testimony."
Seven years after the trial, the incredulity and anger remained in Bradley's voice as he described the prosecution scenario. "(Nancy) supposedly would keep about five kids on the bus, not let them go to the school, and take them to this Joseph Allen's house during the afternoon, she and Joseph Allen would sexually abuse these kids, all afternoon -- tie a kid up in the front yard to a tree, poke them with needles, urinate on him, and get them all dressed and cleaned up and take them home -- drop them off at their parents." All this, by the way, while Smith was working her other job, driving a bus afternoons for the Meals on Wheels program.
In the end, four children testified in court that "Joseph" and Nancy had molested them. A fifth child, Amy Williams, was part of the investigation and participated in the lineup, but she had claimed that Angel Powell took her to "Joseph's" house, not Nancy. Amy did not testify, nor, inexplicably, did Smith's lawyer call any of the other children who rode the bus, or any of the parents who supported Smith.
Antonio Pena testified that he went to Allen's house three times, with three other children, where he was anally raped. (No medical evidence was presented at trial to support any of the sexual abuse the children claimed.) He said that when he refused to drink a cup of urine, Allen tied him to a tree and hit him with a rope.
When first questioned by Det. Cantu, Johnny Givens had described Nancy's boyfriend as white. He had initially denied that anyone had touched him or stuck a stick up his bottom, but at trial, he testified that he'd been sexually assaulted. He added that when Smith and Allen were finished with the children, he was taken back to school, where he told his teacher he'd been playing with toys, and Nancy would select other children to take to "Joseph."
"When I cross examined the children," Allen's attorney Jack Grunda later recalled, "I was able to get every child who took the stand to change their stories." Smith's attorney also found it easy to get the children to agree to whatever he suggested. Nicole said she was driven to Allen's house in a car, then when questioned by Bradley, said she went in a bus. She also shook her head "no" when Bradley asked her if either Smith or Allen had ever touched her. Johnny agreed that it was actually a different Head Start employee, not Smith, who took him to "Joseph's" house.
Under the laws of evidence in the State of Ohio, Bradley and Grunda weren't allowed to hear the tapes of the children's interviews until the cross-examination began. They both stayed up most of the night, listening to the tapes, and realized that the children had all changed their stories significantly over the course of the investigation. They asked Judge McGough for permission to play the tapes in court for the jury. The judge refused.
Several years after the trial, two experts in the field of child suggestibility reviewed transcripts of the interviews. Both experts agreed that the police had manipulated the children into making allegations against Smith and Allen. In the words of Melvin Guyer, a University of Michigan professor and one of the experts, "All of the interviews are outrageous, horrible, terrible.... There is a high incidence of suggestibility and inappropriate questioning. It's outrageous."
But the jury never heard the tapes. As Allen's lawyer Jack Grunda explained, they only heard what the children said on the stand -- and never realized that the children's stories had changed considerably since the investigation started.
Most of the children had failed to pick out Joseph Allen at the live lineup at the police station after he was arrested. At trial, Prosecutor Rosenbaum inverted this exculpatory evidence by deploying the Catch-22 logic of telling the jury that the children's failure to identify Allen was in fact proof that Allen was "Joseph." The reason they hadn't picked him out was because they were terrified. Had they all identified him, this of course would have been considered powerful evidence against Allen, as well.
To emphasize the message that the children were afraid of "Joseph," the jurors heard from William's mother, Emily Oliphant, who testified that when William saw Joseph Allen in the live lineup at the police station, he started crying and ran from the room. She also testified that he picked every other man in the lineup but Allen, thus implying that he recognized Allen but was too frightened to say so, "He went all around him. I mean every single time. He was brought into the room I believe three or four times. And... every single time, everybody but him." This is false, but the jury never knew that.
A videotape of the line up sessions shows William playing with the intercom and mimicking the police officers. He didn't run crying from the room, as his mother testified.
When little William Oliphant was involved in the lineup, he was still being regarded -- with the vigorous promotion of his parents -- as being one of "Joseph's" victims. According to Smith, however, William Oliphant was not on her bus route, and this may serve to explain why William did not testify at trial as a victim -- the prosecution would be hard pressed to explain how Smith had managed to sneak him away to "Joseph's" house when he did not even ride on her bus.
However, William was still one of the most important witnesses for the prosecution because he became a "linkage" witness. Smith and Allen both denied that they had ever met, let alone conspired together to hurt children. There was no physical evidence of the crimes and absolutely no evidence to show that the two co-accused had met before. At trial, young William testified that he'd seen Allen at the bus stop, thus providing crucial "linkage" testimony that placed Allen near Smith and her school bus. William's transformation from a victim to a "linkage" witness can be traced through his mother's statements in the police reports that were kept from the defense and the jury.
At the police station in November of 1993, looking at Joseph Allen in the photo lineup, Emily Oliphant said that she'd seen him the previous winter, lurking around the school busses:
Emily said (Allen) was standing by Nancy Smith's bus door, the day that she helped at Head Start. Emily said that she was holding William's hand walking to the bus and she had a very tight grip on William's hand. Emily stated that (Allen) was standing along side of the open door of Nancy's bus and when she approached the bus with William, William pulled his hand away from Emily and he ran and got on (another) bus, the bus in front of Nancy's. Emily said that William was in death fear of the suspect standing by the door of Nancy Smith's bus. Emily said that William said "I'm not going back to Nancy's bus until that stranger leaves."
The next variation on Emily Oliphant's story came when she identified Allen at the live lineup, Oliphant elaborated on her story -- she had actually spoken to Joseph Allen:
.....Emily stated that her son William had broken free of her grasp and ran to (another) bus on seeing Allen. Stated that at that time she told participant No. 2, Mr. Allen, to stay away from her son.
At trial, Emily Oliphant told another variation of her encounter with Joseph Allen. Gone was the part about walking hand-in-hand with her son. She testified that she'd been on another bus, working as an aide and had sent William out on the sidewalk to go to his bus. But William had come back, crying and complaining that "Joseph" had grabbed his arm. She then went out and confronted Allen and warned him to stay away.
A crucial difference between this version and the earlier versions -- where the mere sight of Allen frightened William -- is that in the trial version, Allen hurt William by grabbing his arm. In the earlier versions, William was reacting in fear to the mere sight of Allen, presumably because he'd been secretly taken to "Joseph's" house. But since William was not presented at trial as being one Smith and Allen's victims, there was no reason why the mere sight of him, should terrify William. But having his arm grabbed could explain it.
At trial, Oliphant testified that her son told her at the time, "Joseph grabbed me." In other words, her son identified "Joseph" to her in the winter of 1992 by name, then she went out and spoke to him. Four months later, when Margie Grover was phoning Head Start parents and warning them that a molester named "Joseph" was on the loose, Emily Oliphant went to the police and spoke to Det. Cantu about her fears that "Joseph" had molested her son. At that time, (May 1993), she said that her son told her "Joseph" was a white man. Although everyone in town was looking for "Joseph," for six months, Emily Oliphant didn't mention the day she allegedly talked to him, until he was in custody.
Other Linkage Witnesses
"Just say yes, this is the guy you saw in the picture, and if I ask you to point him out, can you do that?" Prosecutor Rosenbaum hissed at the startled witness outside the courtroom. Kathy Cole, a Head Start employee, had just told him that she was not really certain if Joseph Allen, the man on trial, was the same black man she had seen at the Head Start schoolyard. According to affidavits later filed by Cole and another woman who witnessed Rosenbaum's intimidation tactics, Rosenbaum added: "God damn it, you will answer the way I want you to answer. Is that understood?" Cole's testimony, nonetheless, was equivocal -- she couldn't be certain that the strange man she'd seen at the schoolyard was Joseph Allen.
But fortunately for Rosenbaum's case, another Head Start employee provided the final, damning link in the chain -- Elizabeth "Angel" Powell.
Powell testified that one day she'd been working on Smith's bus and Smith had briefly parked the vehicle to run into a store to get some soda pop. Suddenly, she claimed, Joseph Allen, muttering, "Nancy, Nancy," under his breath, tried to climb on board. She chased him off with a tire iron. She then saw Allen go into the store and emerge arm-in-arm with Smith. As Powell delivered this testimony, the newspaper reported, Smith's jaw dropped in horror and disbelief.
The next day, a Head Start parent contacted the defense team and was speedily put on the stand as a rebuttal witness to Powell. He testified that he recognized the incident Powell had described in court and it was he, not Allen, whom Powell had chased off the bus. He had jumped on board the bus to talk to his son, but apparently had startled Powell, who shooed him away. He had then sought out Smith to explain and apologize for alarming Powell.
To further undermine Powell's testimony, Smith's lawyer elicited in his cross-examination that she too had failed to pick Allen out of a police lineup. Powell stuck to her identification of Allen, however, saying "Today, when I saw him, I was sure of it. I would stake my life on it."
The jury also heard from Det. Joel Miller, who testified that the children had identified items seized from Allen's house -- a magazine with a picture of a man blowing another man's head off, a pink dress, a belt, a Halloween mask, and some toy cars and children's sheets.
Rosenbaum questioned Miller whether the children had described the items before they were shown them. Here, Miller testifies that Antonio described a picture in a book:
Q. Did he say anything else about the book before looking at it?
A. He said it had a gun in the book.
Q. Did he say anything other than -- describe it more than just having a gun, or was that it?
A. He said the picture showed of shooting his eye out.
Q. And that was before Antonio Pena was permitted to look at that book?
But the police report, kept from the jury and the defense, tells a different story:
Antonio said that Joseph was holding a gun in the book. Antonio said that Joseph's gun looked like a cowboy gun. Antonio was asked what else was on the page with the gun and Antonio said a man. Antonio was then showed a picture that was in the book. Antonio said that Joseph showed him this picture and he said that he's shooting his eye out. This picture is a man lying dead on the floor, with his brains blown out, with a shotgun.
This is how William Oliphant was shown the picture, from the police report:
William was asked if there were any pictures of guns in the book and he said yes. William said that the picture of the man, the gun was shooting. William was shown the picture of the man shot in the magazine and William said that was the picture.
This is how Nicole was asked about the picture, from the police report:
Nicole was asked if "Joseph" ever showed her any magazines. Nicole was shown the mentioned picture of the gun and the dead man.
This is Miller's testimony:
Q. Did any other kids describe a violent picture of some sort?
A. Nicole Grover, William Oliphant and (a girl who did not testify).
Q. Did any of them do that prior to seeing the magazine?
A. They identified the picture before seeing the magazine.
The Defense's Turn
Nancy Smith took the stand in her own defense. The pent-up anguish of the past months poured out of her as she sobbed, "I have never touched any of those children in a sexual manner at all.... I'm sorry, but this has ruined my life... and to be accused of this is terrible, because I am a mother."
Her lawyer argued that a molester driving a school bus where it shouldn't be would be pretty easy to spot: "She's going to take a bunch of kids in a plainly marked bus -- and nobody ever said, 'Oh yeah, we would see the school bus parked by Joseph Allen's' house. Not one person came in and ever said they'd ever seen any kids getting out of any bus, going over to Joseph Allen's house."
In fact, the prosecution argued that Smith and Allen's secret molesting hideout must have been somewhere else and not in Allen's home. Children were driven around the neighborhood of the Head Start school and they pointed out various homes during the investigation, but in the end, police were not able to find a home that matched the various conflicting descriptions. "I don't have no place else," Allen insists. "I could barely keep what I got."
Smith's lawyer also called Head Start officials to testify as to their safety procedures. And according to their testimony, Head Start officials ran a safety-conscious school. Bus arrival and departures and odometer readings were logged each day. The bus drivers logged themselves in and out with punch cards. Most of the time, there was an aide on the bus. Attendance was taken daily and families were phoned if a child was absent. Furthermore, a would-be molester could never count on being alone with a child -- parents were encouraged to ride the bus at any time, and to drop in on the classes unannounced. The children were always escorted on and off the bus, and to their classrooms.
One of Smith's bus aides later filed an affidavit stating that she was with Smith on her bus route every day from January to March and only missed one day of work, that nothing unusual had happened, and that she never saw Joseph Allen. She wasn't called to testify. Other character witnesses who wanted to testify on Smith's behalf, such as her boyfriend, were never called. The defense didn't call an expert to testify about how children's testimony could be contaminated by suggestive questioning.
Smith and Allen had the uphill task of proving that they had never met one another. It was true, but how can you prove you've never met someone? They were supposed to have molested children in a secret hiding place no one had ever found. They were not given specific dates when the abuse supposedly occurred, so they could not establish alibis. It was enough to suggest, as Rosenbaum did to the Head Start bus supervisor, that he didn't know where his busses were all the time. It was enough to suggest, as Rosenbaum did to Nancy Smith, that it would be possible to sneak a child away with no-one noticing. It was enough to suggest, as Rosenbaum did to Head Start officials, that they had a good motive for covering up the crime and maybe even altering their records, because they stood to be sued for millions by the angry parents.
Joseph Allen didn't take the witness stand. His prior record as a convicted child molester spoke heavily against him, but the only reason he was dragged into the case was because of the allegations against Smith that had started with Margie Grover. If the allegations against the bus driver were not true, then none of the story was true. Smith's presumption of innocence, on the other hand, was tarnished by Allen's record.
Rosenbaum described Allen as a "jackal" who preyed on innocent children. In his closing arguments, Rosenbaum asked the jury to discount any inconsistencies or contradictions in the children's testimony: "What you saw was humiliated and scarred children, who sometimes told the truth and sometimes lied, but you can tell the difference."
On Aug. 4, 1994, after six-and-a-half hours of deliberation, the jury declared Smith and Allen guilty. "I don't think (the children) could have gone into detail like that if they were lying," explained one juror. Bradley reflected, "I felt that we had shot down every single allegation and the kids did not come off very well on the witness stand and yet, the jury came back guilty."
"I have never met this man," Smith wailed as the jury was polled to confirm that their verdict against her was unanimous. "I have never seen this man. I never touched those children. Ever! I didn't touch those children and (the prosecutor) knows I didn't touch those children. Oh, my God."
Asked to comment on Smith's reaction, Rosenbaum snapped, "I didn't see one tear," despite the fact that Smith had sobbed on the witness stand.
Smith was sentenced to 30 to 90 years in prison and was ordered to pay the costs of prosecution. Allen received five consecutive life sentences. (In comparison, convicted Atlanta child murderer Wayne Williams received two life sentences.) Allen reacted stoically to the news. Smith was shattered.
Smith's sisters cared for Smith's four teenage children. Each of her children swore affidavits for her appeal. Her oldest daughter wrote, "Like my siblings, I believe the only children abused by the events leading to my mother's conviction were her own four children. We love her, miss her and need her in our lives."
After the Trial
The trial and the harsh sentences caught the attention of retired Lorain resident Raymond Kandt, who wrote a number of letters to the editor after the trial, poking holes in Prosecutor Rosenbaum's case. He wrote that Rosenbaum used innuendo, not facts, to cast doubt on the reliability of Head Start records:
During and after that trial, Chief Assistant County Prosecutor Jonathan Rosenbaum implied that the personnel of Head Start not only lied in their testimony but that they also altered the attendance records of the children involved as well as the records of bus driver Nancy Smith's itinerary...these would be serious charges, if any charges had been made...
But, as Kandt pointed out, no Head Start official was charged with falsifying records, "because if Rosenbaum had charged the people at Head Start with these crimes he would have had to prove these charges."
On the other hand, Kandt added, if the attendance records and the bus mileage records were reliable, then the case against Nancy Smith evaporated. For example, "the school records showed that the children were not absent from school on the same day, even though they testified to going to "Joseph's" house together on several occasions."
Kandt is also scornful of the idea that a molester would have revealed his identity to the children. "Picture this. Nancy stops her bus in front of the mysterious residence of Joseph Allen and hustles three or four children inside. Joseph greets them -- 'Hello, kiddies. My name is Joseph Allen and I will be your abuser for today.' Ridiculous!"
A Reporter Challenges Rosenbaum -- and Gets Sued
Two years after Smith and Joseph Allen went to prison, Paul Facinelli, a columnist for the Chronicle Telegram, decided to take another look at the case. There was something about the whole thing that bothered him. "To believe that this happened," he recalls, "you have to believe that Nancy picked up 25 kids, dropped off 21 of them at the Head Start and somehow got these other four kids in a 30-foot-long yellow school bus to a site undetermined, where she and Joseph Allen did unspeakable things to them without anybody seeing them over the six-month period. Despite all this horrendous abuse that was alleged, no parents, to my knowledge saw anything -- there was no bruising, no blood in the panties or anything. The kids told the police about how "Joseph" peed on them and they had to eat urine laced cookies, but there were no reports of any nausea, no foul odors, nothing."
When Facinelli asked Rosenbaum about Det. Tom Cantu's conclusions that there was no case against Nancy Smith and that "Joseph" appeared to be imaginary, Rosenbaum disparaged Cantu's work, saying that he wasn't "the brightest guy around." Facinelli then obtained Cantu's evaluations for 1992 and 1993, and reported that Cantu had received "exceptional" job performance ratings "from three different evaluators."
Facinelli also obtained a videotape and the written police reports of the police lineup with Joseph Allen and the children. He realized that what was going on in the videotape didn't match the police reports, such as the fact that contrary to his mother's trial testimony, William Oliphant did not appear terrified. According to the police reports, Nicole was also "frightened" while looking at the lineup, but after reassurance, she identified Joseph Allen as "Joseph:"
…the participants were asked to step forward and then backward in numerical order.... Nicole had initially identified Joseph as participant No. 3, Mr. Ward. Nicole then identified Joseph as participant No. 2, Mr. Allen. Appeared frightened during the proceedings and had to be reaffirmed that none of the participants could harm her.
What the police report does not say, but the videotape reveals, wrote Facinelli, is that Nicole was "given numerous chances" to choose Allen. "Detectives coaxed and prodded her." Nicole chose Allen in the No. 2 position after the detective asked if there was anyone she wanted to get a closer look at, and her mother, who was holding Nicole in her arms at the time, said "No. 2."
Facinelli also records that Grover "herself pointed to Allen, corrected her daughter in order to draw the child's attention toward Allen, and took her daughter's wrist and directed the child's extended index finger."
None of this is mentioned in the police report.
Facinelli also discovered that in the months leading up to the trial, the Lorain Drug Task Force was investigating a dentist for writing illegal prescriptions for painkillers. The woman he was writing them for was the state's star witness, Emily Oliphant. After Smith and Allen's trial was concluded, the dentist was arrested. Oliphant herself was never charged with anything and moved to Idaho with her family. She claimed that she only met with Rosenbaum to discuss the illegal drugs after the Smith trial, not before. But her law breaking made her susceptible to the prosecutor's manipulation as a witness for the state. In addition, her drug use may have impaired her judgment.
Lorain County Prosecutor Greg White complained that the Facinelli's investigative bombshells unfairly targeted him in the middle of his re-election campaign. (Despite the controversial Chronicle Telegram investigation, White was returned for his fifth term as prosecutor.) Rosenbaum responded to Facinelli's hard-hitting revelations by bringing a libel suit. Judge Richard M. Markus, who ruled that Rosenbaum had not even specified what, if anything, was incorrect about Facinelli's work, dismissed his lawsuit in 2001. "Despite the court's repeated requests," Markus wrote, "(Rosenbaum) persistently declined to quote the exact language in each publication that he claimed is defamatory." Evidently Rosenbaum believes that the courts can be in error sometimes, because he has appealed Markus' verdict to a higher court. He has expressed no doubt about the guilt of Smith and Allen, and declined to be interviewed for this article.
The defense lawyers used the way the children had been repeatedly and suggestively questioned as a main plank in their appeal in November of 1995. They pointed to the Kelly Michaels case in New Jersey, where Michaels, a young daycare worker, had just had her conviction for child molestation overturned because of the way the children had been badgered, coaxed, and cajoled to say that she'd done bad things to them. (http://crimemagazine.com/nightmare-day-care-wee-care-case)
The Ohio Supreme Court ruled, in effect, that New Jersey could do as it pleased -- but New Jersey had nothing to do with the course of justice in the Buckeye State. The appeal was denied.
The Civil Suit
The parents of Nicole Grover, Amy Williams, Johnny Givens, and Antonio Pena sued the Head Start school for $20 million in damages after Smith and Allen were convicted. The civil suit has yet to be settled, but lawyers for the Head Start Agency have turned up more exculpatory evidence that chipped away at the credibility of another "linkage" witness.
The attorneys obtained a police tape recording of an interview with Angel Powell, the Head Start aide whose testimony at trial provided the devastating link between Allen and Smith. The lawyers attempted to question Powell about it, saying that the tape proved that she was aware that the man who boarded the bus identified himself as a Head Start parent -- but Powell refused to answer the questions. At one point, she stuck her fingers in her ears, chanting "la, la, la, la" and ran out of the interview room.
In the following years, Rosenbaum was embroiled in further controversy, in cases having to do with sex. He and White prosecuted a woman for taking photos of her young daughter in the bathtub. The case was settled out of court after drawing national notoriety. In another case, a doctor accused of sexual misconduct won a dismissal of the charges against him, when it was discovered that the patients who accused him had "recovered" their memories of being molested "in dreams." The doctor's attorney filed a formal complaint against Rosenbaum, for withholding this crucial exculpatory evidence from the defense. (Rosenbaum was cleared of wrongdoing.)
Shortly afterwards, in February 2000, Rosenbaum resigned from the prosecutor's office, but later returned to work part time. Two years later, White suddenly demanded Rosenbaum's resignation. "I have not agreed with the direction the office has and is taking on certain issues for quite some time," Rosenbaum responded. The exact reason for the rift remains mysterious. "I hope Mr. Rosenbaum finds his peace," was all White would say.
For Smith, the devastating heartache continued when her appeal lawyer, James D. Owen, missed a crucial filing deadline for appealing her case to the federal courts. Smith says that she repeatedly called him to confirm he was filing the appeal and that he had assured her everything was taken care of. But she said he never responded to her requests for a copy of the legal papers. Her friend Marty Yant, a journalist and private investigator, finally checked with the court registry and discovered that no appeal had been filed. When Smith confronted Owen, he denied that he had ever agreed to represent her in federal court and produced a copy of a letter saying as much, which he claimed to have sent to her months ago.
Smith and Allen's case represents one of the most blatant miscarriages of justice that the sexual-abuse hysteria wave produced. Their case is stalled now -- without money, without resources, and with few remaining legal avenues available. Two people who never even knew each other have been incarcerated for the remainder of their natural lives for crimes that never occurred in the first place. The prosecutor behind the wrongful convictions, Greg White, is currently being considered by the Bush administration for an appointment to be U.S. District Attorney for Northern Ohio.
After almost thirteen years in prison, Nancy Smith became eligible to apply for parole.
Her bid for parole was rejected on February 20, 2007.
Nancy reportedly received 87 letters in support of her application and one opposed. But that one letter of opposition was from the current Lorain County prosecutor, Dennis Will, who says he believes Nancy should serve her full 90 year sentence.
Nancy's situation is complicated by the fact that she does not admit guilt for the crimes, so she cannot express remorse. She has refused to participate in sex offender treatment programs. A parole board member who interviewed her reportedly said that Nancy was "in denial."
The Ohio Innocence Project, a university-based program using law students, is preparing a pardon/clemency application to Ohio's governor.
Her next parole date is March 2009.
Donations to Nancy Smith and her co-accused Joseph Allen's legal fund can be made through the National Center for Reason and Justice (www.ncrj.org).
For more information on the ritual abuse panic: