The Wrongful Conviction of Joseph Allen and Nancy Smith
The Wrongful Conviction of Joseph Allen and Nancy Smith
For an excellent account of Nancy’s Smith’s case, read the Clemency Petition submitted by the Ohio Innocence Project. It is exhaustively documented. The main issues in the case are summarized on pages 1-5 and 9-24.
How This Case Began Nancy Smith
In 1993, Nancy Miller Smith, a 37-year-old single mother who lived with her four children and her elderly parents, supported her family as a school-bus driver for the Lorain, Ohio Head Start program. She also had a second job making deliveries for Meals-on-Wheels.
On May 7, 1993, a mother brought her four-year-old daughter to the hospital, claiming the girl told her she hadn’t gone to school that day. She claimed the daughter had told her that her driver had taken her to the house of a man named “Joseph,” who tied her up, taped her eyes, and sexually molested her with a stick. At the hospital, the information was provided by the mother, not the child, who was physically unharmed.
Two years prior, this same mother had been convicted of distributing cocaine from her home. She avoided prison time by agreeing to testify against others.
The case was assigned to Detective Tom Cantu, a respected 20-year veteran of the force. During interviews over the next few days, the girl repeatedly denied abuse. The mother, however, made detailed accusations against Nancy, answered questions directed to her daughter, and coaxed her daughter.
Smith’s bus log and odometer readings were checked, showing she had driven her usual route. Attendance records show that the girl was at school. Nancy’s bus aide said that nothing unusual had happened. The abuse was supposed to have happened in the afternoon. But that afternoon Nancy was driving for the Meals-on-Wheels program.
The school attendance records were never entered into evidence at the trial. These records also showed that the alleged victims were never absent on the same day. Moreover, time sheets show that a bus aide was always present while Nancy was driving.
All of the children on Nancy’s route were questioned. They denied that Nancy had ever touched them, hurt them, or upset them. None of them said that they knew a man named “Joseph.”
The accusing mother, however, began contacting other Head Start parents, telling them what Nancy and “Joseph” had done to her daughter, and urging them to question their own children. Panic spread and eventually other accusations were created.
Detective Cantu, however, remained unconvinced that any abuse had ever taken place. The mother was relentless. She went to the Mayor, and a meeting with the mother, the Mayor, Canto, and the police chief ensued. They tried unsuccessfully to convince her that proper police procedure should be followed.
The mother then went to the media and there was a sensational report on local TV news. The police were accused of engaging in a cover-up. The mother even identified “Joseph” – a white man who was the owner of a local gay bar. (He was investigated but not charged) During early interrogations, “Joseph” was variously identified as white, as black, as white with black spots, and as black with white spots. (Some have alleged that Joseph Allen had a skin pigmentation problem. But this is false.)
After giving Nancy a lie-detector test, Cantu concluded that there was no case against her.
Two aggressive and ambitious prosecutors – Greg White and Jonathan Rosenbaum – then stepped into the case. They had Cantu taken off the case and set up their own special task force. The search for “Joseph” intensified. Eventually, an uneducated working-class black man, Joseph Allen, was arrested. To this day, Smith and Allen have never met.
Joseph had a prior conviction for child sexual abuse. (He has always claimed innocence.) And there was also a murder conviction, which was subsequently voided by the Massachusetts Supreme Judicial Court. These prior convictions were extremely prejudicial, not just for Joseph, but for Nancy as well.
But the fact remains: If no illegal acts occurred, Joseph Allen’s prior convictions are totally irrelevant. Smith and Allen are either both guilty, or both innocent.
Ten alleged victims were shown a photo array including Joseph Allen. Only one picked him out. A few days later, there was a live line-up, which was videotaped. The jury never saw the videotape, which included much exculpatory evidence. Most of the children could not identify Joseph. And the ones who did were usually coaxed by their parents. One mother grabbed her child’s finger and pointed it at Joseph. One father audibly whispered “Number two” in his child’s ear. When one child said her abuser was the one in the green shirt, the mother said, “That’s blue.” One mother, Edith Oliver, pinched her son’s leg when Joseph stepped forward.
The conduct of this mother was especially disturbing. At trial, Oliver testified that her son, William, didn’t identify Joseph because he was terrified of him. She said that he had jumped back and ran out of the room crying. The video made clear that she was lying. William, in fact, seemed to be having a good time throughout the experience.
At the time, Emily was taking ten or more painkillers a day. These painkillers included codeine-based drugs, which cause mild euphoria, confusion, changes in vision and drowsiness, especially when taken in large doses. According to an affidavit submitted by William, Emily continued to abuse drugs throughout the trial.
William’s affidavit is a complete recantation. After Emily died, William discovered that Emily and her husband were not his real parents. In fact, they had kidnapped him and taken him to Ohio when he was three days old. His birth mother never knew what had happened to him until William tracked her down.
In his affidavit, William says that Emily repeatedly told him over twenty years that Nancy Smith and Joseph Allen had sexually abused him. William states, however, that he has no memory of ever being molested by them or even ever having met Joseph Allen. He states, “I am confident that I was never molested by Joseph Allen or Nancy Smith.” William also discusses Emily’s out-of-control behavior as a drug addict and the great lengths she would go to in order to get drugs. Emily was never able to overcome her addiction.
During the ensuing investigation, the children were improperly interviewed with leading questions. “Wrong” answers were ignored. Questions continued until “right” answers were produced. Every expert who has examined the recordings of these interviews has concluded that they were improper and that testimony produced by them would be highly unreliable.
Smith and Allen.
At trial, prosecutors tried to link Smith and Allen. Donetta Taylor, a bus aide, mentioned seeing a strange man hanging around Head Start, but she said at trial that she couldn’t say for sure that it was Joseph. Emily Oliver, the woman who claimed to be William Oliver’s mother but wasn’t, said she confronted Joseph after he allegedly grabbed William by the arm and told him to stay away from him. But her credibility has been completed destroyed by William’s affidavit. The woman was a drug addict, mentally disturbed, and a liar.
The prosecution produced one witness – a bus aide named Angell Powell– 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 makes it clear that the black man who had come on the bus was almost certainly 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. This father came forward at trial as a rebuttal witness to Powell. But the prosecution discredited him by calling him a criminal. (Some of the state’s star witnesses in fact were criminals) The aide was the only witness to link Smith and Allen, who to this day have never met. (Powell, by the way, had been unable to pick Joseph Allen out of a lineup.) Powell had been a suspect herself before she became a prosecution witness. She was named by at least two children and was almost always on the bus with Nancy.
What Happened to Smith and Allen
Smith and Allen were tried and convicted in July of 1994. Nancy was sentenced to serve 30 to 94 years. Joseph was sentenced to five consecutive life sentences.
In early 2009, Smith and Allen were separately called back to Court. A clerical error had been discovered, necessitating resentencing. Instead of resentencing, however, Judge James Burge released them both on bond while he reviewed their records.
In June of 2009, after conducting his review, Burge called Smith and Allen back to court for resentencing. But instead of sending them back to prison, he acquits them both of all charges, having concluded that there was no reliable or credible evidence against them.
Unfortunately, prosecutors appealed to the Ohio Supreme Court, who reinstated the convictions.
When this happened, the Ohio Innocence Project filed a clemency petition for Nancy Smith, which you can read here. It is exhaustively documented. The main issues in the case are summarized on pages 1-5 and 9-24.
This clemency petition – and another for Joseph Allen – is still pending before Ohio Governor John Kasich.
By the summer of 2013, most of the media and public were convinced that both Smith and Allen were innocent. Prosecutors made a deal with Nancy’s lawyers for her to accept a sentence of time served in exchange for her agreement to pursue no further legal action. While Nancy has not been legally exonerated, she no longer has to fear being sent back to prison.
Judge Virgil Sinclair, however, refused to accept such a deal for Joseph Allen and sent him back to prison, although with his sentence reduced to 25 years, including 15 already served. Joseph had a perfunctory parole hearing in January of 2014 – a hearing for which no preparation was made. He was summarily denied and will not see the parole board again. Joseph also gave up all of his rights of appeal. If nothing is done, Joseph will spend another 10 years in prison.
The NCRJ believes that Joseph’s decision to give up his rights was done under duress and has found Joseph a new attorney. We are hopeful that there is still hope for justice for Joseph.