Sticklers for Procedure

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


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.

NEXT: Justice Clarence Thomas, Silent All These Years

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  1. People called innocent go to the jail?

    1. Mitch Daniels is a fucking imbecile. Can anyone actually see that little retard as president. I’d vote for Obama first. Really!

      1. Huh? I don’t see the connection. Mitch Daniels is from Indiana, not Ohio.

    2. Hey Mr. Balko, who were the “movement of quack, Christian fundamentalist psychologists”?

    3. “If you haven’t done anything wrong…”

  2. Pow! Thanks for the V-Day present Balko.

    1. Actually, I think this goes beyond the “Balko Monday Ball Kick.”

      I think we’re in William Wallace territory here.

      1. Free Scotland!

        1. Or Ohio.

          Though I’d give Glaswegians better odds than Cincinnatians.

  3. Six months after the initial allegations, Joseph Allen walked into a police station to report that his car had been stolen… Here was a Joseph with a prior sex crime conviction. The panic was on. New alleged victims came forward, and Allen was arrested.

    And urban police wonder why people won’t just cooperate with them.

    1. If that wasn’t an admission of guilt, nothing is.

  4. We have a legal system, not a justice system.

  5. In 2008 Rosenbaum was paralyzed from the waist down after he was shot by his son in a hunting accident.

    Attempting to give a damn…

    Failed to give a damn.

    1. Karmic.

    2. See, sometimes the justice system works.

    3. Too bad it wasn’t a head shot.

      1. I’ve known 4 people who are paralyzed. 3 of them would rather be dead.

        1. I like those odds. 75% chance this guy might off himself in the night.

        2. I bet a lot of dead people wish they were paralyzed.

          1. I bet it’s impossible to wish for anything once you die.

  6. It always cracks me up that the justice don’t understand the difference between an end and a means. And that procedure is just a means. It is like they assume that if you have been through the grinder, you end up sausage. Or they just don’t give a fuck and don’t want to put their tenure on the line.

  7. What I don’t understand is what’s in it for the current prosecutor to continue to press this. Are lawyers just sadists?

    1. I don’t know about all lawyers, but it does seem to be the case for prosecutors. If they are not sadists, they must somehow convince themselves that defendants are not really people.

      1. I worked in criminal prosecution for 10 years. I found the work dehumanizing. The files were color-coded – purple for felony, blue for misdemeanor, green for DNR offenses, red for traffic, beige for juvenile. I remembered defendants by file color and offense, not by name and certainly not as individual, unique human beings. When I realized what the system was doing to me, and, by extension, to the people I set out to serve, I fled.

    2. Prosecutors are fucking sadists, oh yes.

      1. The reason prosecutors tried all these people falsely for child molestation is that they themselves are guilty of this exact crime. I have the exact same evidence against them that they had in all these cases. If we can’t remove prosecutorial immunity then at least we can give them a taste of their own medicine.

    3. They can never be wrong. Ever. Despite all of the ethical requirements that they do things like share exculpatory evidence with the defense.

      1. But this crop inherited the case. Can’t they say their predecessors were wrong? Doesn’t that make them even more right, being able to unfuck a fuckup of a predecessor?

        1. DAs and ADAs live and die by conviction rates. Having an opponent say that you let a convicted molester go is like forfeiting an election.

        2. But that would imply that the office of prosecutor could err.

    4. In many counties, DAs are part of an on-going machine. The current DA is appointed a judge, and his lead prosecutor succeeds to his job. The orderly succession can continue for decades.

  8. Probably not that important, but there’s a discrepancy between your account of how Allen came to the police’s notice, and the account in the Cleveland Scene article you link to.








        1. The dude sounds like Steve Smith after a religious experience.



      Shall we start with the Born-Again Televangelists that have been caught or the Born-Again Congressmen?

    2. sarcastic capitals give you away

      but there is a question of the “christianity” of the quackery, versus simple quachery. Does Mr. Balko have some references on this?

      1. All Caps are for yelling, while {sarcasm brackets} are for sarcasm.

    3. This is not the 7th century. We have lowercase letters now. Use them.


        Does anyone else find this ironic? Don’t offend me, because your policy of avoiding offense is offensive.

      2. Damned moveable type…

        1. Once Gutenberg came along, it was all downhill from there. That, and firearms.

          Gave the damned peasants notions of equality and rights.

          /Sherriff of Nottingham mode.

      3. It’s funny you bring up the century. Because while it would appear we are not in the 7th century, our legal system would seem to suggest otherwise.


      1. I was just thinking the same thing…

    5. I’m pretty sure that Radley was just bashing the quack fundamentalist psychologists. It’s no fun making fun of fundamentalists. It’s like shooting fish in a barrel.

    6. Then you know a very small amount of people, or you are a willful idiot.

      I grew up Christian all my life, and I have rejected organized religion because there are two type of people in church. Those that are evil despicable people who use church networking as a way to do their evil, and supposed “Christians” like you who would cover up every bit of wrong doing to keep the church from being embarrassed.

      Being stupid enough to fall for such a scam or to be such a useful idiot does not give your opinions any authority on a site full of actual thinkers.

      1. Then you know a very small amount of Christians, or you are a willful idiot.

        See hwo easy it is to play the game?

      2. “how” – sheesh…

      3. It’s funny how the screwups are always still described as “good Christians,” even when you’re being told about their misdeeds. “So and so got divorced because she was cheating on her husband with her son’s best friend – don’t get me wrong, she’s a good Christian, but bla bla bla…” I’m sure you’ve heard it before. It’s funny, because I live a more moral (by their standards) life than 99% of these “good Christians,” yet I’m the one going to hell, apparently.

        1. I’m sorry about that but that’s just the way it is …….

        2. Mr FB,
          Apparently, christians and cops have this in common. That you can still be described as a good cop/xtian inside the community whereas everybody outside of it KNOWS you’re an asshole.

    7. Calling Poe on this one. All caps? Instant give-away.

    8. Caplocks off fucktard.
      What Balko said has no implication that he hates God you silly little douche.
      You pathetic Christians call it bashing anytime someone points out your many hypocrisies and the fact that your bible is utter bullshit.

    9. To Gene Hauber:

      Some of the 1980s hysteria did start among Fundamentalist congregations.

      See, for example, this 1980s refutation by Christian author Mary Pride:
      The Child Abuse Industry: Outrageous Facts About Child Abuse & Everyday Rebellions Against a System that Threatens Every North American Family…..891074015/

      The Good Book’s injunction against “bearing false witness” is no bulwark against self-brainwashing. “Repressed memory” sounds plausible in “science fiction” (fantasy), eg. Heinlein’s Puppet Masters, even though there is no support for it in actual science.

      Discredit also goes, however, to some left-wing Feminists. This is paradoxical, since many if not most victims of day-care hysteria are vulnerable female day-care workers.

  10. If I was ever elected governor or President, I would probably spend most of my time issuing pardons and commuting sentences.

    And overseeing FBI investigations and DOJ prosecutions of DAs and their filthy minions.

    1. Absolute immunity covers them, unfortunately.

      1. No problem: Have them all declared enemy combatants and tossed in Gitmo.

        1. Because replacing a system of crazy judicial members with an executive branch with unlimited power is a good idea…

          1. Sorry. That should have had sarcasm brackets.

    2. “And overseeing FBI investigations and DOJ prosecutions of DAs and their filthy minions.”

      You would probably end up spending most of your time getting assassinated.

  11. This is so “McMartin Preschool,” but with convictions.

  12. The stories that the adults invented for the kids reminded me of the “dream game.” One person leaves the room and supposedly the others invent a dream that they think the person out of the room might have. That person then returns and asks yes/no questions to find out what the dream is. Often s/he ends up in lurid sexual situations with weird things happening.

    Eventually it is revealed that everyone is simply following the rule “if the last word in the question contains an ‘e’ then answer yes, else no”. The entire lurid situation is entirely in the mind of the person asking the questions.

    1. Sounds kinda fun, actually.

  13. As I always say no religion is a good religion!

    1. Right, but the problem is that if you eliminate religion, you know what you get? Some new religion. People would just make one up to fill in the gap, and you might like it even less.

  14. Many of the convictions from the 1980’s and 1990’s were upheld to this day. Many believe there was no panic, but there was a cover up after this era to free those convicted based on technicalities.

  15. Many of the cases from the 1980’s and 1990’s were upheld until this day. There was no panic, but a cover up after this time, with some cases being overturned on technicalities.

    1. Wow. Congratulations on having one of the least fact-checked, most fantastical websites I’ve ever seen. That’s up there with some of the craziest conspiracy theory sites. Well done troll, if I do say so myself.

  16. It is appalling that such cases are prosecuted and even more appalling that 12 jurors can decide to convict without any physical evidence. Are most people f’ing imbeciles? I’m beginning to believe so.

    Is this insanity over? No. I recently read about a case of a Michigan teacher convicted of sexual abuse of 2 children just a couple years ago without a shred of physical evidence and despite exculpatory testimony from other teachers. His conviction was later overturned based on exclusion of this eculpatory testimony but the DA was fighting to reinstate the conviction. I have tried to find the info on this case but can’t find it right now. As in this case, I wondered how anybody with a brain, let alone 12 people, decide to convict without any physical evidence.

    There are other outrageous examples of course.

    There needs to better oversight of DA’s to prevent such prosecutorial abuse. There needs to be a mechanism to criminally prosect DA’s for such flagrant abuse of their power. There also needs to be a better ability to exclude imbeciles from the jury pool or maybe an instruction that physical evidence rather than mere accusations are necessary for a conviction. But then again, anybody who needs instruction in this regard is probably too mentally retarded to follow these instructions.

    1. Actually, during jury selection both sets of lawyers generally attempt to find the jurors who will be most pliable and sympathetic to their side – so anyone with intelligence tends to be eliminated early.

    2. Are most people f’ing imbeciles? I’m beginning to believe so.

      Most Americans vote republican or democrat… I think that answers your question.

  17. So, ironically, these kids were abused, just not by the people who got put on trial.

    1. Ironic, yet standard. There is no one a child should fear more than a “child advocate”.

    2. Yes, what’s worse than being molested as a child? Sending an innocent person to jail for many years by fabricating stories of molestation. That is, if you have any conscience.

  18. If I were in charge, everyone involved in these prosecutions would be given a public execution.

    When they bring up the fact that I don’t have the power to do that, I’ll tell them that the deadline had passed for them to bring it up.

  19. Fortunately or otherwise, what Judge Burge did is rightly called “judicial activism” and all of us objecting conservative “constitutional originalists” are bound to condemn it. In this case it was activism in the direction of justice, but judicial activism, like vigilantism (NOT self defense!), has caused far more problems than it has ever even begun to alleviate.

    1. Wrong. “Judicial Activism” is sort of a synonym for “issues decisions regardless of precedent.” A constitutional originalist would have absolutely no problem with an “activist” judge overturning a century of established precedent to restore a plank of the original constitution. This is the difference between Justice Roberts and Justice Thomas.

    2. It would be “activism” for Judge Burge to free the defendants because he thought child molesting should be legal. Freeing the innocent, however, is a core value of our common law, incorporated into the Constitution. As Blackstone once put it, “It is better that ten guilty persons escape than that one innocent suffer.”

      1. When did it become acceptable for a judge (of Common Pleas, no less, not even an appellate judge of any stripe!) to simply set aside a jury verdict because “it was wrong”? Please understand that I am not arguing that the defendants somehow deserve to stay in jail. Their conviction was a travesty and certainly deserves to be reversed somehow. The point is that even an appellate court does not have the authority to simply set aside a jury verdict as being “wrong”. That would completely invalidate jury findings in general, which would throw our entire jury trial system into complete chaos. I believe that your Blackstone quote referred to jury decisions that were either not unanimously “guilty”, or that were unanimously “not guilty” “in the face of the evidence” (jury nullification) rather than asserting a power of the court to ignore jury findings in favor of “what is right”.

        1. Judges throw out jury verdicts all the time, both appeals judges and even the original trial judge. The Seventh Amendment provides it only should be done “according to the rules of the common law,” but guess who decides “the rules of the common law.”

  20. For a quick summary of this case, see…..e-innocent

    To learn more about the National Center for Reason and Justice, see

    Bob Chatelle, Executive Director
    NCRJ (

  21. One must understand that with the current hysteria in the US surrounding sex crimes against children that the accused is guilty until proven innocent. DAs and the courts will take what ever steps are necessary for a conviction.

  22. I read a few of the links and then started following links to more stories…this is some of the most disturbing stuff I’ve ever read. The idea that one offhand comment from a toddler can be spun into a massive conspiracy, in the absence of any physical evidence or even any consistency in the story, shows how pathological the whole process can be…the cops, prosecutors, and “therapists” are clearly working off a predetermined playbook that says these children have been abused, and proceed to discard any evidence that would contradict that.

  23. OH MY………MY BAD,



  24. OH MY………MY BAD,



    Still not enough data to dismiss the invocation of “Poe’s Law.”

  25. mother of a Head Start student claimed her daughter told her that Smith and someone named Joseph had sexually abused her
    this MOTHER should be the one in prison!

  26. osenbaum 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

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