Nancy Smith and Joseph Allen were convicted of numerous child rape counts back in 1994, and essentially sentenced to life in prison.  The Ohio Innocence Project had gotten involved in the cases, and planned on filing a motion for new trial.  In June, Lorain County Common Pleas Judge James Burge stunned everyone by granting a judgment of acquittal in the case and ordered Smith and Allen freed. 

He probably should have waited…

Smith and Allen came in at the tail end of the ritual child sex abuse hysteria in the 80′s and 90′s, of which the McMartin case in California was the prototype.  Like the McMartins, and defendants in cases like the Little Rascals Day Care in North Carolina, the Fells Acre case in Massachusetts, and the Wee Care Day Care case in New Jersey, Smith and Allen were alleged to have engaged in various forms of ritualistic child abuse.  Many of the other cases fell apart when it became apparent that the child accusers had been heavily coached, or at the least improperly interviewed, and, as this article indicates, there’s substantial basis for the claim that Smith and Allen were similarly victimized.

The pair got nowhere with their appeals and petitions for post-conviction relief, but a ray of sunshine emerged in the Ohio Supreme Court’s decision last year in State v. Baker, which held what a sentencing entry had to include in order to be valid.  The first was “the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based.”  Although the docket in the Allen/Smith case contained an entry that the jury had found the defendants guilty on all counts, the actual sentencing entry didn’t include any mention of that; it began, “Defendant in court for sentencing,” and went on to specify the terms of imprisonment.  The defendants’ lawyers picked up on that, and filed a motion with the court asking for resentencing.  The judge who had presided over the trial had left the bench, and had been replaced by Burge.

The prosecutor’s office probably got an inkling that something was up when Burge ordered the defendants back to court for the resentencing, and ordered them released on bond until that date.  The State asked the 9th District for leave to appeal, arguing that the error could have been corrected without the necessity of resentencing, but the appellate court refused to review it.  And so, on June 24, everybody crowded into Burge’s courtroom, the defendants hoping that, at best, Burge would re-sentence them to time served.  Instead, announcing that he had reviewed the transcripts of the trial and had “absolutely no confidence that these verdicts are correct,” Burge granted a Rule 29(C) judgment of acquittal, and ordered the pair released.

The first problem with Burge’s ruling is that the rule provides a 14-day, not 15-year, window after the jury’s verdict for filing the motion.  The second problem is that the defense had never in fact filed such a motion.

That latter issue is highlighted by another 9th District, State v. Ross, which came out less than a month after Burge’s ruling.  Ross had a particularly tortured procedural history, but the case focuses on the motion for acquittal.  It was originally filed seven days after the judge had declared a mistrial, but wasn’t actually ruled upon for three years, while a double jeopardy motion made its way through the courts.  When the case finally returned to the trial court, the judge denied the 29(C) motion in September, but over three months later, after Ross had filed a “renewed” motion, the judge treated that as a motion to reconsider the 29(C) ruling, and reversed itself, granting the motion as to one of the counts.  (To give you an idea of how bizarre the procedural history was, all of this happened in 2003; state court proceedings were put on hold while Ross pursued his remedies in Federal court on habeas.)

The 9th District, in an uncharacteristically caustic opinion, rejected the State’s contention that the trial court lacked the power to reconsider its decision on the 29(C) motion, noting an abundance of case law holding that “prior to the final sentencing determination, a guilty verdict is not a final order,” and that any other rulings of the trial judge are interlocutory. 

The State in Ross had relied on the US Supreme Court’s decision in Carlisle v. US, where the Court held that the trial judge had erred in reversing itself and granting a motion for judgment of acquittal.  As the 9th District pointed out, Carlisle was inapposite; the Court’s holding was not based upon the trial judge’s inability to reconsider a previous ruling, but on the fact that Carlisle had filed his motion one day late.

While Carlisle didn’t help the State in Ross, it’s impact on the Smith/Allen case could be critical.  The state criminal rules are modeled after the Federal ones, and the only appreciable difference in Rule 29(C) between the two is that the Federal rule requires the motion to be made seven days, instead of fourteen, after the verdict.  Carlisle could hardly have been more definitive:  if the defendant fails to timely file the motion, the court has no power to grant it, “regardless of whether the motion is accompanied by a claim of legal innocence, is filed before sentencing, or was filed late because of attorney error.”  The Court also held that a trial judge could not sua sponte grant a motion for acquittal under 29(A), either.

The State has filed an appeal from Burge’s ruling, but it’s not automatic; the 9th District will have to decide whether to grant leave to appeal.  It may decide not to, figuring that would simply be forestalling the inevitable:  assuming Burge is reversed on this, his ruling on a subsequent motion for new trial is pretty much a foregone conclusion.  (And given the Supreme Court’s decision a few years back in State v. Gondor, that trial court decisions on new trial motions were reviewable only for abuse of discretion, that would be extremely difficult to reverse.)  Whatever happens, it’s hard to see Smith and Allen serving out the sentences that were imposed back in 1994.

And that’s very probably a good thing.  I may take issue with Burge on how he did what he did, but why he did it is much more defensible.  The notorious child sex abuse cases of the 80′s and 90′s mentioned above were classic studies of injustice, and there’s good reason to believe that the Smith/Allen case is but another example of that.  There’s a purpose to following the law; the trouble comes when you realize that following the law perpetrates an injustice.