ELYRIA — Prosecutors shouldn’t be able to appeal a county judge’s decision to acquit Nancy Smith in the controversial Head Start child molestation case, Smith attorneys argue in court documents filed Friday.

Jack Bradley and Michael Stepanik wrote that prosecutors, who sought permission to appeal the decision last week, don’t have a sound legal argument.

“The only alleged error that the state of Ohio complains of is Ms. Smith’s acquittal of the charges against her,” they wrote. “Dissatisfaction with that result does not constitute adequate grounds for appeal.”

During a June hearing, Lorain County Common Pleas Judge James Burge also cleared Joseph Allen, to whose Lorain home Smith was accused of taking the 4- and 5-year-old children on her Head Start bus route in the early 1990s.

The pair was accused of molesting the children.

They were convicted in 1994 and Smith, now 52, was sentenced to 30 to 90 years in prison. Allen, now 56, received five consecutive life terms.

Both continued to maintain their innocence and have denied even knowing each other before they were charged.

Burge freed both Smith and Allen earlier this year while he prepared to conduct new sentencing hearings because of an error in the original sentencing entries that sent them to prison. Bradley and Stepanik also argued that the appellate court should consider the prosecutors’ appeal request separately.

Part of the argument for the appeal by prosecutors is that a request for an acquittal must be filed within 14 days of a jury conviction. Bradley said he did that after Smith was convicted, but Allen’s trial attorney, Joe Grunda, did not. Prosecutors have conceded that there was an error in the original sentencing entries but argued that it could have been corrected with new entries.

A new hearing wasn’t necessary, they argued.

Burge said when he acquitted Smith and Allen that he didn’t believe the evidence against the pair he reviewed as he prepared for Smith’s new sentencing hearing justified their convictions. He said he could revisit any motion in the case because the original sentence had been voided.

But prosecutors contend that Burge exceeded his authority. They have said that they are worried that if Burge’s decision stands in the case, it will allow previously convicted people to continuously challenge their convictions, meaning no criminal case will ever be truly closed.

Bradley said that even if prosecutors are successful in their appeal — and he doesn’t believe they will be based on the case law — it will likely only affect future cases.

Once someone is acquitted, he said, he or she can never be charged with the same crime again.

Allen’s attorney, K. Ronald Bailey, has not yet filed a response to the appeal request from prosecutors.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.

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