Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Return to Salem

Some of the names are familiar.  There was the Wee Care Nursery School case, where Margaret Kelly Michaels was charged with 299 counts in the sexual assault of 33 children; her conviction and 47-year prison sentence was thrown out based on the suggestive interview methods used by the police with the children , as well as highly questionable "expert" testimony.  There was the Little Rascals day car case, where Bob Kelly was convicted of 99 counts of engaging in rape, sodomy, and satanic ritual abuse of the children in his care, despite a complete lack of physical or forensic evidence; his conviction was thrown out six years later. 

Then there were others that aren't so familiar, like the Wenatchee, Washington, case which resulted in 43 adults being arrested on 29,726 charges of child sex abuse involving 60 children.  Or the Fells Acre Day Care Center case, where the children told of being abused by a clown and a robot in a secret room at the center, and of watching animals being sacrificed; one even claimed that one defendant had penetrated her anus with a 12-inch knife.  Again, there was no evidence other than the testimony of the children.

Some of the defendants got lucky.  Dale Akiki, a volunteer baby-sitter at a church, was accused of satanic ritual abuse, including killing animals and drinking their blood in front of the children, but was acquitted, and eventually won money in a lawsuit against the county for bringing the case.  So did Richard and Kari Klassen, who had been charged with running a satanic cult called the Brotherhood of the Ram, which supposedly practiced ritualized sexual abuse of children.

Nancy Smith and Joseph Allen got a break, but their luck ran out yesterday.

Back in 1994, at the height of the child sex abuse hysteria, Smith and Allen were convicted of rape, attempted rape, and gross sexual imposition in the molestation of several children.  Smith was a bus driver for Head Start, and the claim was that she drove the children to an undisclosed location, where Smith abused them.  Smith was sentenced to 30 to 90 years in prison, Allen to five consecutive life sentences.  The court of appeals affirmed the convictions, and, a year later, when Smith and Allen moved for new trials, affirmed the denial of those motions as well.  And that was that.

Until June of 2009, when a judge acquitted both of them.

How that happened had its seeds in another Lorain County caseBack in 2007, the 9th District started giving a hypertechnical reading to CrimR 32(C), which requires that a judgment of conviction "shall set forth the plea, the verdict or findings, and the sentence."  Even if the journal entry recited that the defendant pled guilty, the 9th held, that wasn't enough; it also had to state that the court had found the defendant guilty.  One of those cases eventually went up to the Supreme Court, and in State v. Baker the court held that the sentencing entry was sufficient if it contains "(1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court."

And that was a problem with the sentencing entry in the Smith/Allen case:  it began, "Defendants in court for sentencing," but made no mention of the jury's finding of guilt.  The defendants' lawyers picked up on that, and filed a motion for resentencing.  The judge who'd presided over the trial and had sentenced Smith and Allen had retired, and the new judge, James Burge, gave clear notice to the prosecutors that something was up when, over their objection, instead of simply correcting the entry, he ordered the defendants back for a resentencing hearing, and released them on bond until that date.  The defendants hoped that he would simply resentence them to time served, but he went them one better:  announcing that he had "absolutely no confidence that these verdicts are correct," he granted a Rule 29(C) judgment of acquittal and ordered them released.

The State filed a writ of prohibition, and the 9th District vacated the acquittal of Allen; while Smith had timely filed a motion for judgment of acquittal back in 1994, Allen hadn't.  I thought Smith was out of the woods after the Supreme Court's decision in December in State v. Ross.  The trial judge in Ross had denied a Rule 29(C) motion for acquittal, but three years later, after the case got sidetracked in habeas, the defense filed a "renewed" motion and the judge reconsidered and granted it.  The State appealed, and the Supreme Court agreed that thejudge shouldn't have granted it because the renewal was filed outside the 14-day window (after the verdict) allowed for 29(C) motions, but held that while this was a procedural error, the court wasn't without jurisdiction to do it.  In my discussion of Ross, I said that "it's difficult to see how a different result would be reached" in Smith's case.

Wrong.  Yesterday, in State ex rel. DeWine v. Burge, the court granted the writ of prohibition, vacated the acquittal, and ordered Burge to issue a corrected sentencing entry.  In doing so, the court left unresolved the effect of a non-Baker-compliant journal entry.  Unlike the failure to properly impose post-release controls, a Baker error can be corrected by simply filing a nunc pro tunc entry correcting it.  The problem is that the court in another decision, State ex rel. Culgan v. Medina Cty. Common Pleas Court, stated that an entry which didn't comport with Rule 32(C) "would render the entry nonappealable."  That might be dicta, or it might not.  As Justice Lanzinger noted in her concurring opinion in Burge,

we eventually will need to determine what effect an appellate decision has when the appellate court’s jurisdiction was premised upon a sentencing entry that violated Crim.R. 32(C) and was thus nonappealable. 

That, of course, raised the precise argument that the court shot down last month in State v. Fischer; there, Fischer had argued that the failure to properly impose post-release controls resulted in a void entry, which was not a final order, and thus he was entitled to a new appeal from his resentencing because the appellate court's decision in his first appeal was a nullity, since appellate courts only have jurisdiction over final orders.  Fischer's argument was shot down, and I don't expect the court to do anything different here should it eventually get a case on that.

This isn't necessarily the end of the road for Smith and Allen.  The Innocence Project has taken over their representation, and plans to file a motion for new trial, largely based on audio- and video-tapes of the children's interviews and identifications, none of which were shown to the jury.  (And, as they're described in this article, certainly provide support for Burge's "no confidence" vote.)   One doesn't have to guess what Burge's ruling on a motion for new trial would be, and given the Supreme Court’s decision a few years back in State v. Gondor, that trial court decisions on new trial motions are reviewable only for abuse of discretion, that would be extremely difficult to reverse.  A problem there is that those tapes were raised in earlier post-conviction motions, and were rejected by the trial and appellate court's as simply a "rehash" of things that were brought out at trial.  Is that res judicata or the law of the case?

I hope not.  I wasn't at the trial, I haven't read the transcripts, so I'm not in a position to pass judgment. At this stage, though, a lot of people seem to be more interested in ensuring that the procedural niceties are followed than whether Nancy Allen and Joseph Smith were just another set of victims in the witch hunt of child "molestors" in the 80's and 90's.


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses