The Wrongful Conviction of Joseph Allen (and Nancy Smith)
Bob Chatelle and Emily Horowitz
Directors, National Center for Reason and Justice
Joseph Allen, July 2010
Photo Credit: James D’Entremont
Although most of the people wrongfully convicted in the daycare sex abuse panic of the 1980s/early 1990s have been exonerated, Joseph Allen is still fighting to clear his name. Although he was acquitted in 2009, after serving 15 years in prison, in April 2011 the Ohio Supreme Court overruled the acquittal. Allen, and his co-defendant, Nancy Smith, are still out of prison but they are anxiously waiting to see what will happen.
Like the other cases in the daycare panic, this case started with an accusation by a mother who believed that her child was sexually abused while at preschool. In 1993, in Lorain, Ohio, a young mother – who had been previously convicted of distributing cocaine from her home – took her 4-year-old daughter to the hospital. She claimed that the girl hadn’t gone to her Head Start program that day, because her bus driver, Nancy Smith, had driven the children on her bus that afternoon to see a man named “Joseph.” Joseph allegedly tied the girl up, taped her eyes, and molested her with a stick.
But the bus odometer showed that Smith had driven her usual route, and school records showed that the daughter had been present at school. The aide who rode the bus with Nancy said that nothing unusual had happened that week, and Nancy had not driven the school bus that afternoon but was driving that day for a Meals-on-Wheels program. The little girl showed no signs of physical harm.
When police detective Tom Cantu interviewed the mother and daughter, the daughter provided almost no information. He interviewed other children on the bus, who said that they didn’t know a man named Joseph, that Nancy never touched them, and that they liked Nancy.
The accusing mother became upset because the police were finding no information to confirm her story. She began contacting other Head Start parents, telling them her unfounded accusations, and causing them to aggressively question their own children. She also went to the media, appearing on a local TV station’s newscast, resulting in more accusations.
In these accusations, “Joseph” was variously described as white, black, black with white spots, and white with black spots. Several children said he had blue eyes. The first person the accusing mother identified as “Joseph” – the owner of a gay bar, was white. Cantu gave Nancy a lie-detector test, which she passed with flying colors. Cantu concluded that there was no case.
The District Attorney’s office, unfortunately, refused to give up. They had the children aggressively and coercively interviewed. On these tapes the children initially deny that any abuse took place. But the interrogators refuse to take no for an answer. Two experts (Dr. Mel Guyer and Dr. Kathleen Quinn) later reviewed the videotapes and affirmed that they contained no evidence of wrongdoing by either Smith or Allen. Dr, Guyer said, “All of the interviews are outrageous, horrible, terrible…there is a high incidence of suggestibility. It’s outrageous.” At the trial, the judge refused to allow the jurors to hear these tapes.
Joseph Allen, an African-American unskilled laborer from Alabama with a 9th grade education, was preparing to return there because his mother was ill. Allen relied on disability payments to survive because of injuries sustained after working many years as a manual laborer in a foundry. He was visited by a 15-year-old girl, who was the daughter of a friend, and one or two other girls. During the visit, they stole the keys to Joseph’s car and subsequently took off with it.
Joseph’s problems started when he reported the theft to the police. When the thief was found, she claimed that Joseph had offered her money for sex. Joseph had no money. And if he had done such a thing, he never would have reported the theft to the police.
Joseph, unfortunately, had a conviction for sexual-battery with a minor on his record. The girl’s mother made the accusation after Joseph broke off their relationship. There was no physical or medical evidence against Joseph. Joseph’s lawyer – who would later defend Nancy Smith – advised a very confused and overwhelmed Joseph to take a plea, instead of fighting the charges, to avoid a long prison term, and he served three years. Like many impoverished and uneducated defendants, Joseph was told by his court-appointed attorney that if he didn’t plea, he would go to trial and spend decades in prison. According to Martin Yant, a private investigator familiar this case, says that after thinking more about the implications of the plea, Joseph tried to withdraw his plea but the judge wouldn’t allow it.
Joseph had also been arrested for murder in 1975. His conviction was voided on appeal and the case was then dropped.
Given what was found on his record, it is not surprising that the Lorain police thought that they had finally found “Joseph.” They thoroughly searched his house and questioned his neighbors. The children had claimed that the abuse took place upstairs and in the basement. Joseph lived in a single-story house with no basement. No neighbor ever saw a yellow school bus parked in the neighborhood.
The Lorain police created a photo lineup including Joseph and five other black men. They showed these photos to ten different children, including the original accuser. If a child identified someone other than Joseph, the police questioned their choice. Even with this improper prompting, only one of the ten children identified Joseph. And this was not the original accuser.
A few days later, the first accusing mother went to the police and said that her daughter could now identify Joseph. By this time, Joseph’s picture had appeared in the newspapers.
Joseph Allen was then put through a live lineup with the children. Most of the children didn’t identify him. Those that did were immediately taken away, those that didn’t were asked to reconsider or were brought back. The original accuser finally “identified” Allen when her mother grabbed her finger and pointed it at him. Children were coaxed to identify Allen. A child’s failure to identify Allen was attributed to fear — and thus evidence of Allen’s guilt.
Smith and Allen were tried together in July of 1994. The prosecution produced a witness – a bus aide – who claimed that Joseph had once come on the bus and terrified the children. What the jury never learned was that on June 17, 1993 during the aide’s first interrogation (which was recorded) she said that the black man who had come on the bus was the father of one of the children. During this interview, the aide had also said that neither Nancy nor the children ever talked about a man named Joe or Joseph. After this perjury, the father came forward as a rebuttal witness. But the prosecution discredited him by calling him a criminal. The aide was the only witness to link Smith and Allen, who to this day have never met.
Joseph Smith still speaks with a thick Southern drawl, even though he has lived in Ohio for decades. He says he thought the charges of child sexual abuse were a joke, and remembers thinking, when he first heard about the charges, “that someone is playing a trick on me.”
On August 4, 1994, after six and a half hours of deliberation, the jury found Smith and Allen guilty. Joseph Allen was sentenced to five consecutive life sentences. Nancy Smith was sentenced to 30 to 90 years and ordered to pay the prosecution cost.
In 1995, the Ohio Supreme Court rejected the appeal, and Smith and Allen rotted in prison for years.
Eventually, Nancy Smith’s lawyer found that an error had been made in the sentencing entry in the case. He asked Judge James Burge to bring his client into court for the correction. He hoped that he had found a way to finally reopen the case. Joseph Allen’s lawyer made the same request.
On February 4, 2009, Judge Burge released Nancy Smith on $100,000 bond. A few weeks later, Joseph Allen was released on the same bond, paid by the National Center for Reason and Justice, because his family could not afford to do so
In June, 2009, Burge called Smith and Allen into his court and acquitted both of them. Then, in late June of 2010, the Appeals Court ruled that Nancy’s acquittal will stand, but Joseph would have to go back to prison. The reason: in 1994, Joseph’s incompetent public defender had neglected to file the routine motion for acquittal. The prosecution appealed the Smith ruling.
In April of 2011, the Ohio Supreme Court ruled unanimously that Burge did not have the right to acquit Smith and Allen. They were asked to reconsider. The ruling was not changed, but two of the justices did change their minds and say that Burge did have the right to acquit.
And then – nothing happened. Smith and Allen were not called back to Court to be resentenced to prison.
In early 2012, Dateline did a piece on Nancy Smith. Joseph Allen was ignored and bad-mouthed in the piece, and Dateline never bothered to contact Joseph for an interview or comment.
Yant notes it is yet “another injustice [that] the news media and others has greatly focused on the plight of Nancy, a highly sympathetic single mother with no prior record, to the almost complete exclusion of Joseph Allen.” Joseph, by all accounts, is an incredibly nice guy. Yant says that of the clients he has had over the years, Joseph is the only one who went out of his way to send him checks to pay for the collect calls he made to Yant while in prison.
Shortly after the Dateline program aired, Nancy’s lawyer – with the assistance of the Ohio Innocence Project – filed a massive appeal for clemency for Nancy.
Joseph says he wants to live the rest of his life in peace, “without this dark cloud” over his head. He wants to “totally feel free,” and cleared so he can be left alone. He adds, “All I want is to live the rest of my life and be happy and joyful.” Joseph doesn’t have a computer or internet access, but he asked us if we can mail him a copy of the article when it appears – and if we can translate it into Spanish. He tells us there are a number of “very nice” Spanish-speaking people in his neighborhood, and they have been asking him a lot of questions since Dateline aired and they learned of his past. “They can’t believe it,” Joseph tells us, and they want to know the whole story. “Maybe if you write an article it will help me explain things to people around here.”
Either Smith and Allen are both innocent or they are both guilty, even though the Ohio Innocence Project supports only Smith. Joseph Allen and Nancy Smith must both be freed and allowed to get on with their lives.
To donate money for the legal defense of Joseph Allen, please donate via ncrj.org. Please indicate that you recommend that the NCRJ apply the donation to the Clemency Fund.