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The governor should pardon Nancy Smith

Tom Jackson • Aug 13, 2013 at 3:18 PM

The last chance for justice for Nancy Smith, who served years in prison for molesting preschoolers despite mountains evidence that she was innocent, rests for Gov. John Kasich.

Smith is a former Head Start bus driver in Lorain. She was convicted of transporting preschoolers to a man who abused them. She served 14 years in prison. She finally was freed from prison when a Lorain county judge named James Burge became convinced she was innocent and acquitted her. The judge, after sticking his neck out for justice, was slapped down by the Ohio Supreme Court.

The Parole Board voted 9-2 to recommend denying her request for a pardon, although the final decision rests with the governor.

I have posted a copy of the report, which covers both sides, so judge for yourself. Here is an interesting sentence: "The jury did not hear testimony from witnesses, such as bus aides and parent volunteers, who would confirm that the applicant always had an aide or parent on the bus and would verify that the children were dropped off at school and nothing improper happened."

Here is another interesting passage: "Former lead detective Tom Cantu believes that the applicant is innocent. In addition, during the presentation of Judge James Burge at the clemency hearing, he indicated that after the applicant's case was assigned to him after the defense filed a resentencing motion, he reviewed the trial transcript to understand what she had done and to determine if she was deserving of the maximum sentence. He found the trial testimony unbelievable, so he decided to review the investigatory materials. After doing such, he concluded that the applicant was convicted on events that could not have occurred and believes that the applicant is innocent, not just 'not guilty.' Judge Burge indicated that he is ashamed of her conviction, and became very emotional during his presentation. In response to a question as to why he had not yet resentenced the applicant as ordered by the Ohio Supreme Court two years prior, Judge Burge indicated that both the defense counsel and the prosecutor asked him not to do so." (A plea deal spared her from having to go back to prison.)

This case is a major fail for both the Ohio Supreme Court and the Parole Board, which could have provided Kasich political cover by making a courageous but correct decision. (The two parole board members who bucked the majority and voted to recommend a pardon are Richard Cholar Jr. and R.F. Rauschenberg. Good for them.) 

The Plain Dealer's Rachell Dissell (best known for helping to solve an old murder case) has done good work on the Smith case. Check out her story about the accuser who now doubts anything occurred.  She also wrote a story about the Lorain police chief admitting the case was bogus. 

I would point out one additional angle: The Lorain case isn't an isolated case. It was part of a nationwide pattern of sending innocent people to prison for sex crimes against children, fed by a moral panic and improper questioning of children. (The Wall Street Journal's Dorothy Rabinowitz won a Pulitzer Prize largely for her work on the issue.) Ohio apparently was swept up in the trend, and now has one last chance to right a wrong.

I'm not optimistic about the governor's decision, but we'll see. (That's not a criticism of the governor, but if Nancy Smith didn't have bad luck, she'd have no luck at all.) I'll do a follow-up post when the decision is announced. 

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