Hopeful Note About the Smith/Allen Case

[Note: Friends of Justice is a personal blog. I speak only for myself.]

Dear Friend of Justice,

I came across this hopeful note about the Joseph Allen/Nancy Smith case.

Here is the relevant excerpt:

Good news for Nancy Smith and Joseph Allen.  As I wrote back in 2009, their 1994 convictions for child sexual molestation were tossed out, albeit under unusual circumstances:  fifteen years after they were convicted and sentenced to life in prison, the judge — different from the one who presided over their trial — granted a Rule 29(C) motion for acquittal.  The fact that the rule provides a fourteen-day, rather than fifteen-year, period for filing such a motion was rendered irrelevant by the fact that the defense hadn’t even filed one.

I didn’t hold out too much hope for that being sustained on appeal, but the Supreme Court’s decision last week in State v. Ross might change that.  Ross similarly involved a 29(C) motion.  Although it was timely filed, it was originally denied; after various Federal court proceedings, the defense “renewed” their motion three years later, and the trial court reconsidered and granted it.  The State appealed, asserting that since the renewed motion was filed outside the time limit, the trial court lacked jurisdiction to grant it.  The 9th District rejected that contention, holding that the initial denial was an interlocutory order, subject to reconsideration at any time.  The Supreme Court wasn’t buying either argument:  the time limit was procedural, not jurisdictional, but the “renewed” motion should have been treated as a new motion and, since it was filed well after the deadline, should have been denied.  But the State’s right of appeal in a criminal case is limited to those situations defined in RC 2945.67, and the section does not permit appeal from a final verdict of acquittal.  That includes a 29(C) ruling, says the court, so the ruling in Ross stands.  Given the language of the opinion, it’s difficult to see how a different result would be reached in the cases of Smith and Allen.

While  Courts are almost impossible to predict, I hope that Mr. Bensing is correct.

-Bob Chatelle