GIST: "This story has been updated with a quote from Nancy Smith's attorneys.
One of the defendants in Nancy Smith's wrongful conviction lawsuit filed last month in U.S. District Court has asked a federal judge to dismiss the case against him.
Sexual abuse charges against Smith were dismissed two years ago, nearly 30 years after she and Joseph Allen were convicted of sexually abusing children on her Head Start bus in one of the most controversial cases in Lorain County legal history.
In the motion filed Monday, attorney Jonathan Rosenbaum — who as the chief assistant prosecutor in former Lorain County Prosecutor Greg White's office obtained convictions against Smith and Joseph Allen in 1994 — argued that Smith signed away any rights to sue more than 10 years ago when she signed an agreement that saw her released from prison.
Rosenbaum also argued that under rules of prosecutorial immunity and qualified immunity, prosecutors like he was have immunity from such lawsuits, even if they were part of the investigation that resulted in alleged wrongful convictions.
According to Rosenbaum's motion, Smith and former Prosecutor Dennis Will entered into the agreement in 2013. In it, Smith voluntarily agreed to serve a 12-year prison sentence with credit for 14 years and six months already served.
Other conditions were that Smith waive her rights "to raise additional state or federal challenges to her conviction" to bring the prosecution and her sentence to a close, Rosenbaum wrote.
Smith and prosecutors acknowledged in the agreement that she "was found guilty of all charges, beyond a reasonable doubt, as determined by all reviewing courts" and that "the parties stipulate that (this) agreement is based upon a mutual desire to put an end to all future litigation.''
Smith further agreed "she shall not pursue any civil or equitable actions in connection with this case, including, but not limited to, any claim for wrongful incarceration," according to Rosenbaum's motion.
"Therefore, Smith is preclud(ed) from bringing this civil action which is connected to her criminal case according to the attached sentencing agreement of the parties," he wrote.
Attorney Elliot Slosar, of the law firm Loevy & Loevy in Chicago that is representing Smith, provided the following statement to The Chronicle-Telegram:
"Defendant Rosenbaum's motion to dismiss is as baseless as his vindictive prosecution of Nancy Smith without probable cause," he wrote. "As our lawsuit alleges, defendant Rosenbaum believed he could trample upon the constitutional rights of criminal defendants by committing egregious misconduct. That ends here. We will respond to defendant Rosenbaum's frivolous motion to dismiss in court where we are confident that truth and justice will prevail."
Her lawsuit alleges that Grondin faked sexual abuse claims against Smith, a bus driver for the Head Start program, and that Lorain police officers and Rosenbaum participated in a "conspiracy" to convict her.
Former Lorain police officers Russ Cambarare, Mark Carpentiere, Joel Miller, Pete Rewak and the estate of former Lorain Police Chief Cel Rivera, who died in 2022, also are named as defendants in the lawsuit.
The lawsuit also alleges Rosenbaum knew there was no probable cause to charge Smith with any crimes but "joined the conspiracy" and got a conviction out of it.
Smith's attorneys also contend that police and prosecutors faked evidence, coerced witnesses and used improper or suggestive interviewing and identification techniques, according to Smith's lawsuit.
The lawsuit, which makes claims for detention without probable cause, due process violations, fabrication of false evidence, supervisory liability, failure to intervene and liability of the city of Lorain for the alleged misconduct of its police officers under federal law, is assigned to U.S. District Judge David Ruiz.
It also makes claims under Ohio law for intentional or reckless infliction of emotional distress and "respondeat superior," a legal doctrine that a party — such as the city of Lorain or Lorain County in this case — can be held responsible for the actions of its agents, such as police officers or other employees.
Smith is seeking an undisclosed amount of compensatory and punitive damages as well as attorney fees, according to federal court records.
Both Allen and Smith argued their innocence for decades. Multiple courts upheld their original 1994 convictions on appeal.
Rosenbaum then tried to sign on to represent some of the alleged victims in the Head Start case after Tomlinson announced plans to dismiss the charges. Smith's attorneys objected, arguing in court that Rosenbaum's actions were improper and might violate codes of conduct for attorneys.
The entire story can be read at:
https://chroniclet.com/news/385193/former-prosecutor-asks-federal-judge-to-throw-out-head-start-wrongful-conviction-lawsuit-updated/PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater's attorneys who sought his exoneration, told the Syracuse Post-Standard, "Sprinkle some junk science onto a faulty identification, and it's the perfect recipe for a wrongful conviction.
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-12348801
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MORE VALUABLE WORDS: "As a former public defender, Texas' refusal to delay Ivan Cantu's execution to evaluate new evidence is deeply worrying for the state of our legal system. There should be no room for doubt in a death penalty case. The facts surrounding Cantu's execution should haunt all of us."
Congresswoman Jasmine Crockett; X March 1, 2024.
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