THE EDGE OF DOUBT-David Miraldi

sensational trial. This gripping tale is anchored in three decades of unwavering claims of innocence. As the pages turn, you'll find yourself torn between the scales of justice and the resilience of the human spirit. In a world that is quick to judge. The Edge of Doubt compels you to lend an ear to the whispers of truth. This is your invitation to dive into a powerful account that will challenge your assumptions and unveil the complexities of human nature.

Read it and prepare to see the world with new eyes. The book that we're featuring this evening is The Edge of Doubt, The Trial of Nancy Smith and Joseph Allen, with my special guest, retired attorney and author David Morldy. Welcome to the program, and thank you very much for this interview. David Marldy.

as an African American. Nancy is white, and at Nancy's home, they claim that various sex acts were done to them by Nancy and Joseph. They also claimed that they were urinated upon and had to drink urine, which is sort of a satanic element to it. The police then got involved, and I don't know how much you want me to go into what followed up until Nancy's arrest and that of Joseph Allen, but I'm happy to get into that.

doubts about it. And at the same time, Nina's mother, Marge Bronson, was talking to other parents in the head Start program, and two in particular and said, oh, my daughter said that your son was with her, your daughter was with her at this house, and then explained what had happened to her. And then of course Cantu had to investigate all of those elements. He eventually talked to

all eleven children that were on the school bus. Wally denied that anything had happened, that they liked Nancy, and eventually she was vehement that she had not done these things, that she did not have a black boyfriend named Joseph, she had a white boyfriend named Charles, and she voluntarily agreed to a polygraph which says she was telling the truth.

In the meantime, Nina's parents went to a local television station, they went to the newspaper and lo and behold, you have fifteen other parents coming forward with their children, ten of whom were not on Nancy's bus. One. It didn't it wasn't even the head Start program. But there was tremendous pressure in a hysteria in the Lorain community. And Cantu was told he was being promoted to a desk job and the investigation was being turned over to another detective.

So at that point we have another detective involved who is basically stymied as well. He reinterviews the children. There's all kinds of conflicts in their testimony. They provide different locations as to where this happened. One boy identifies someone who the police later clear the descriptions of this Joseph, this elusive Joseph. He's a black man. He's a white man. He's a white man with black makeup on his face. He's a young man, he's an old man with receding hairline.

He has blue eyes, he has dark eyes. They're all over the place. But they identify Nancy as the person who took them to Joseph. And with all of this pressure, The police continue their investigation the last about six months until they are working on another case and man by the name of Joseph Allen, a black man, a painter, a handyman, comes to their attention. He is an African American. He does have some white splotches on his skin, some burns. He has a prior conviction for sex abuse of a minor.

He'd spent three years in prison. And they go to search his home and they find children's toys, clothing, books, and they think they've got their man now. They fail to really consider that he sometimes had woman and her two children living with him, and nieces and nephews. But now they finally feel that they have the elusive Joseph

Allen and they can proceed. And even though they had a photo lineup where the children could not identify him or only maybe one did they and probably get to this s latter, they also had a live lineup that is just an absolute disgrace in terms of went on there and identifying Joseph Allen.

But there's also an aspect the police take a number of statements, both recorded and written statements, but under the law at that time, of the discovery law, those statements did not have to be turned over to the defense

attorneys until that witness testified at trial. And then after that the witness testified on direct examination, they go into the judges chambers, they pull out the statement, the judge listens to it, see if there's inconsistencies, and then it's turned over to the defendant attorneys to cross examine that that witness. And you know, it's a it's a it's a it's a huge disadvantage today and that and by when you ask the question by the book prosecutor, he

follows that rule. Some prosecutors are a little more open than that would provide those statements earlier. But you know he was he was within his rights not to turn those statements over, at least under the discovery rules about inconsistency. However, if there's anything exculpatory in those statements, then he did have a duty to turn that over. And that's one of the big issues in the case.

the judge considers the economy of having one trial. She considered the trauma of having the children testify in two trials, and that's weighed against the prejudice, particularly here of Nancy Smith, of being in the courtroom with a convicted sex offender, and was within the judges discretion to do that, and that was upheld on appeal, but it obviously had very, very dire consequences for Nancy Smith.

So that's certainly critical. The other is, whenever you have witnesses who are four and five years old, the judge is the gatekeeper yes on whether they are competent to testify and judgment. Can they tell the difference between right and wrong, between a lie and the truth? Will they be punished if they tell a lie? And the judge makes that determination in her courtroom, it was a very low bar for these kids for her to say that they were competent to testify, and that's extremely important in

any child sex abuse case. If the child testifies that these things happen, that is extremely powerful testimony. It's very hard for a jury to ignore that. And we can go into why the children's testimony was so powerful and how they can be so effective if in fact, what they were telling had happened, and that has to do with the interview process and how they had been conditioned and programmed to tell their stories. But I'll wait for a question from you on that one.

child psychologists who were known for their expertise in partying out whether the interviews were tainted or contaminated right. And when he sent them to the two psychologists, they both agreed to review them, but no charge, and both were appalled by the way the children had been questioned. They didn't believe that the police and the social workers had broken the rules of interrogation on purpose, but they had. Nonetheless, they were some of the worst interviews that they had

ever seen. And there's a proper way to interview children about sex abuse four and five year olds. The first is you don't ask eating questions, because the children are smart enough they want to please the person who's questioning them, and they will usually agree with a leading question. You don't repeat questions, you know, until I mean, the child will eventually change the answer. And you don't want a

questioner who has bias a confirmation bias. There's these things happen and he or she is trying to confirm that, and so all of these things happened. You don't reward the child. Oh yeah, you can have a can of pop if you answer this question. You know, if you don't answer this, your sister is going to be attacked by it. By Joseph. The proper way to do it is to ask open ended questions. You should develop a rapport with the child and say, hey, I understand things

have been happening at the school. Tell me what's happened, and don't leave out any details, and then you let the child talk. That's called spontaneous recall. And that is the most reliable information that anyone can get. You only you try to limit your number of interviews. One is great, two is probably adequate. But in this case, we have four statements of Nina Zorich that are that were recorded. They're probably more, and as they continue, they become more

and more unreliable. And that's exactly what happened in this case.

and the bus, there was an AID. So they had to argue that it had happened on a day when there wasn't an AID, and sometimes if there wasn't an AID, there was, you know, a parent that was on board. So and the teachers came out from the school and met each bus they were unloaded one at a time.

He just couldn't believe that this had happened, and he was roundly criticized in the newspapers for not agreeing with the jury verdict, you know, and one newspaper actually called for his resignation because he the jury heard all the evidence and obviously he had not. He enters the story

when no surprise for the parents. After there have been these convictions and the appeals have been exhausted for Nancy Smith, they filed civil lawsuits against the head Start program, Loraine County Community Action Agency, which you said was the umbrella organization, claiming that they're responsible, they were negligent, that they were negligent in hiring, supervising and retaining Nancy Smith, that they failed then to protect the children from these awful things

that happened. And this then became a very long drawn out lawsuit which had an unfortunate ending for those of us, at least from my perspective. The insurance company eventually capitulated and offered settlements of one point five million to each of the four families. Now, you've got to understand, the issue in this case was not whether Nancy Smith and Joseph Allen had done these things that had been established in the criminal case, and so you know, it was

an open question whether that can be re litigated. The question was whether the head start of the agency was put on notice of some things that had happened regarding Nancy that have larded them that she was going to do these things. And the insurance company, after I can't recall it was eight or nine years of litigation, finally wanted to get the book, get the case off their books, and they paid on it.

to work for the family for free. He had a lot of reliability for the Ohio Innocence Project and when he brought this case to them, Mark Godsei reviewed it and was convinced that, you know, a miscarriage of justice had occurred. He read those statements of the children's statements that showed contamination and also, we haven't talked about it.

The children at trial had no difficulty pointing out who Joseph Allen was in the corporate However, it came to light through Fatchinelli's article that there was a videotape of that lineup to show the children and how they reacted. There were seven children went in for absolutely could not identify him. One looked as if the father had whispered in his ear as to it's number two. And then we have Nina Zorich and her mother eight nine agonizing

minutes where she had entifi' is the wrong person. He's given second and third chances. The mother points at point says, oh, it's this person. It's just an incredible videotape. It's available online if people want to watch that. But anyway, Gatzi had seen that, and he obviously met with Nancy and became very much an advocate for her. Because there were no appeals left, her best chance of getting out of prison was through paroles. She was going to have a

parole hearing. One of the difficulties with the parole hearing was that they want to know that The parole board wants to know that you've been rehabilitated, which means that you have admitted that you've done these things, You've taken a sex offender course, and you're ready to be reintegrated into society. Nancy will not do that. And you know, they put together a great document for the parle board. It shows the likelihood that the jury had gotten it wrong.

It also showed, you know, what an exemplary person she had been in prison, the things that she had done. But she would not admit to these crimes and she knew that that would probably end her opportunity for parole, and in fact, her parole was initially what was denied. And then you asked me about Amber Brownish, and I'll go in to that. You know, after her parole was denied, Amber, who had been fifteen I think at the time her mom had been convicted, was now an adult, was her champion.

She was always uppering the attorneys and prodding them to do things, and she decided she had to do something on her own. So she contacted the Lorraine police, not expecting anything to happen. But the police chief who had been involved and been in charge of the detectives when her mom was convicted, that's the person that I know. He since passed away Sea rivera very warm, a good individual, and he said, come on in. He gave her, you know,

let's talk about it. And he suggested to her that she go to the alleged victims who were now adults, and see if they would admit that these things hadn't happened. And he even gave her a tape recorder and so she could secretly tape record Christmas. Allowed in Ohio only one person has to consent to that. That didn't work out, and then he said he would help her with filing

some paperwork for a clemency. Then, when the place chief was contacted by Mark Gotsey from the Ohio Innocence Project, he was not as cooperative, and Amber went in and tape recorded some of their conversations in hopes that that would speed her mother's release.

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off your first week. That's fifty percent off your first week using code murder, or by going to cook unity dot com slash murder. Introduce Judge James Burge December twenty of two thousand and eight, and you write that he's considered a maverick. Tell us about what the Maverick judge does all right.

crime judge. Judge Jack Bradley, who we haven't talked about, who was Nancy's original attorney and was still working on her case even though the Innocence Project is involved, filed emotion based on a technicality in the sentencing order. There had been a recent High Supreme Court case that said, when somebody has found guilty, the journal entry has to say how they were found guilty. Was it by the judge,

was it by a jury? Had they pled? And in Judge mcguff's journal entry, she just simply said that she'd been found guilty, and most people thought, well, this is no big deal. You know, you just have to amend that entry and say that she's found guilty by a jury and the original sentencing would be in effect. But Judge Burge looked at it that, hey, this was never finalized. This case is still open to me. I can re sentence her if I want. And it was a novel idea.

So he decided to read the entire transcript, read the children's statements to see what would be a proper sentence, and in so doing he had no confidence in the verdict. And to the surprise of everyone, a gathered everyone together and said, I am issuing an acquittal for Nancy Smith and Joseph Allen. And he had said, and in doing so he had said, well, you know, there have been

some changes in the loss since nineteen ninety four. Number one, the parents could testify as to what their children said about the sex acts which happened in this case, and that that rule was later found to be unconstitutional. Right because they said that, you haven't, defendant has a right to confront the actual person who said that. Not this this hearsay. The other thing is he looked at the statements and he said, these are all exculpatory why weren't

these turned over to the defense attorneys? And when he excluded, when he exclude those things, are provide for those things, there was no basis for a conviction. And then this said in progress appeals that went all the way to the Ohouse Supreme Court as to whether he had the right to do what he did, and the ultimate answer was they said no.

arranging a sentencing agreement that could override the sentences. And two, they have a petition for clemency that they file with down in Columbus to try to prove that this was a wrongful conviction and they should grant her clemency, grant her freedom, and the Ohio Innocence project in Cincinnati enlisted a top notch New York City law firm, Davis Polk that does pro bono work, who put together an incredible brief, you know, with three hundred pages of exhibits, And then

they had a full hearing with the eleven member Parole board, with the New York attorney putting on the testimony of a psychologist showing the unreliability of the interviews. Tom Canto testified. They had two of the daughters testify and it was a very impressive performance, but only two of the eleven members seemed to be in favor. They would make a recommendations to the judge as to whether the grant clemency, and that can take months and time was running out.

The other surprising witness at the clemency hearing was Judge James Burge, who said he was convinced that she was innocent. Now what that meant he no longer could preside over

her case. He had to re accuse himself, and so once he had testified, then the Supreme Court brought in someone else, a visiting judge from another county, and the Innocence Project Mark Gotsey knew that time was of the essence and Sharon Katz, who was the attorney from New York, worked out a sentencing agreement where Nancy was there were certain findings that you know, the jury, the jury had found her guilty. They changed the gross sexual imposition sentenced

to twelve years. He'd already served fifteen years, so she was free. Not so lucky for Joseph Allen, the judge that had been appointed. They had been apparently worked out a similar deal for him, but he would be free on time served. But because he had a prior record, the prosecutor had had him examined by a psychologists and they thought that he should be supervised once he was free.

And the judge said no, and so he insisted that although he reduced it to one kind of rape and a sentence of twenty five years, Joseph Allen had not served that, and he was going back to prison, and did go back to prison until we get to part five, yes, yes.

got the transcripts and got into this case. And when I write my book, I write the first chapter and my last chapter. And when I had and I was writing it, my last chapter had been Joseph Allen going back to prison. Yeah, well, little did I know that. About a couple months after I wrote that, Rocco Bronson content it was contacted. Mark gotsee late at night and said, hey,

my mom coached my sister to say those things. She promised her a trip to Disney World, she said she was going to get and she's trying to do that with me and trying to gain custody of my daughter, her granddaughter. She's accused my wife of abusing our daughter. She accused that this happened during a supervised visit with Children's Services, with the potential that there would be a

claim against Children's Services. And so Mark Gotsey got a Virginia Brayden, who was an investigator AHD to look at those allegations and others and father the motion for a new trial based on newly discovered evidence.

One of the amazing things about Rocco Bronson's affidavit in his testimony is that he said that his mom had set up almost like a school in the basement, you know, with desks, whether the kids would recite what they were supposed to say, and they had a picture Joseph Allen, and they would advance from desk to desk, you know, the better that they performed. And he also claimed that some of the things that were allegations of sex abuse

were things that had he claimed had happened to him. Now, the other side of the coin is Roco Bronson Junior had drug issues. The prosecutor was investigating whether he had planted drugs in his mother's home. I mean, was he was not a he was he was not your perfect witness. However, the Lorraine County Sheriff's Department had investigated the claim about whether the granddaughter was sexually abused by her mother, and

they found that Marge Bronson had been coaching her. They had left the videotape on one point where the little girl was practicing how to cry. So as it would later turn out, you know, Mark Gazzi was able to argue, hey, we're not you don't have to rely on Rocko. Look at you know, she's doing the same thing. You've got the Lorraine County Sheriff's Department saying that she coached these children. And you know, this is bombshell evidence. We couldn't possibly

have had that in nineteen ninety four. And that's a test for newly discovered evidence. You know, it has to be something that would really shift the needle and was not discoverable in nineteen ninety four, and that was their argument.

And indeed, once he was elected, he had two investigators too, both were retired detectives, one from the Lorraine Police department, went from the Illyria who went through the transcript, went through all of the statements, the police reports, talked with the number of people and they came back to Tomlin and said these people are innocent. So you know that's happening at the same time that Mark Gatzi is receiving this information from Rock Bronson.

grant a new trial. And most thought that this was going to be you know, the prosecutor was you know, this was going to be an easy thing because the prosecutor was not contesting, you know. And in fact, the prosecutors sent a letter said we believe she's innocent. But the former prosecutor, Jonathan Rosenbaum, who was no longer a prosecutor but in private practice, was hired by two of the alleged victims to contest this motion for a new trial.

And in Ohio we have something called Marci's Law, which was actually a constitutional amendment that gave victims certain rights and it allowed them to be heard at any hearing. And John Rosenbaum of strenuously objected to this motion for a new trial. He thought that there should be a special prosecutor. Pointed that Tomlinson could not be fair, and that was partly because Tomlinson had hired Jim Burge to

be his chief of staff. And he said, well, you know he's already he should there's a conflict of interest here. Fortunately for Nancy Smith and Joseph Allen, Judge Cook had like twenty five years of experience dealing with ethical claims and was on a state board that investigated claims against judges and lawyers. And he said, no, this doesn't apply. Prosecutor's office is different than a law office, and Jim Burge is excluded from participating, but no one else's. But

he became quite heated battle and wrote. Judge John Rosenbaum claimed, hey, they can't you know, I, you know, I don't have a conflict of interest in this case. In the judgeable, I think you do. You represented the state of Ohio. How can you be here arguing a position contrary to your former client? And Rosenbaum said, well, I'm just saying that, you know, putting forth an argument that is consistent with what we argued back in ninety four. Judge said, well,

can't a client change is there her mind? You know, does a former attorney. You have the right to tell a client what it can or cannot do. And ultimately John Rosenbaum withdrew that he had a conflict of interest, and the last chapter of the book is Judge Cook rules that they have they're entitled to a new trial, and the prosecutor gets up and tells the judge, we are not going to be pressing charges. We want this case dismiss, dismissed with prejudice. We apologize to Nancy Smith

and Joseph Allen for this ill conceived prosecution. And then Nancy Smith gets up and she says that she it is a statement against you know, Marge Bronson. So you don't know what you did to me. I'm not the only victim. My whole family were victims. You took me away from my children in their most crucial period and wanted to be known that what you did was it was a horrible, horrible thing. With that, the judge granted the motion to dismiss and the case was over. Twenty eight years later.

imprisonment filed and that that has concluded. And in a wrongful imprisonment lawsuit, the first step is you file something in the county court to hear is Lorraine County, and it's tried to the judge and he determines whether you were innocent of those charges. And once there's that finding, and there's the second part to the case, and it is transferred to the Ohio Court of Claims in Columbus, who then makes a decision as to what award of

damages that person is entitled. To this point, that case is still pending. I think. I think for all intents and purposes, both she and Joseph Allen have been exonerated, but compensation for their wrongful imprisonment is still in the offing.

He was given the life sentence, and so all throughout this book, Nancy you mentioned just her statement at the very end, but the terrible time she had in prison, the way she was looked attorneys when they came to visit her, the despair that she had over this conviction and that she would never get out and see her

children again. You put the reasoning for this, and we talk about those detectives, the initial detectives that conducted those interviews, and the over zealous, to say the least, prosecutor Rosenbaum. Tell us how you believe that this really was perpetrated and Nancy Smith and Joseph Allen were wrongfully convicted.

although I'm careful not to express my opinion. But what did happen here. First of all, we are told that we have, you know, the best criminal system of justice in the world, which we do. We have all of these protections, right against self incrimination, presumption of innocence, all these things, so we believe that innocent people aren't convicted. In law school, we're told, given to the mantra, it's better that ten guilty persons go free than one innocent

person be convicted. But what we're discovering, particularly with DNA evidence, that these people who have been convicted and exhausted all their appeals, there's DNA evidence that shows that they didn't do it. So we're suddenly aware that our system does make mistakes and why does it make mistakes? And I can't talk to you on a macro level. I can only talk to you about this case. And I think what I'm trying to show through this case is it can happen to anyone. If it can happen to Nancy Smith,

it can happen to you. And I think that that's an important message. You know, it's just not the story, it's just it's a cautionary tale that you know, we just have to be vigilant, but you know, to try to answer your question, you know a little more with a little more specificity. This was a perfect storm. I mean, when the system fails, it's not just one thing that goes wrong. It's usually four or five or six things that go wrong. You have to look at the police investigation,

you know, was it shoddy, was it biased? You have to look at the prosecutor. Did the prosecutor follow the guidelines in the law in terms of turning over evidence? Was the judge fair? Was you know, was the judge biased? You know, did he or she favor one side or over the other? Where the defense attorneys prepared, you know, was there perjured testimony or is there a witness who

later recants? And then you add this final element in this case, which is these horrible, horrible allegations of child sex abuse, and there's a hysteria, a pressure on the jury. I've had prosecutors tell me that if they can get a child to testify that sex abuse happened, the case

is over. You know, it's extremely powerful testimony, and that's why in this case it was extremely important for the defense to have an expert to come in and explain how the children's memories can be molded and programmed, and once the story has been cemented, it's as real to that child as any other memory. So it's a perfect storm.

And I really have highlighted, you know, six different things that that probably led to it, and each case is different, but certainly there were failures in a lot of sectors.

that it sold cocaine out of her house. That was information that the defense should have had, and then they used that as a basis for a new trial. However, the prosecutor said I asked her whether she had any convictions. It was a federal conviction, and she said that she hadn't.

And there were some other things, you know, dealing with Jack Bradley's involvement in that case that you know, they're able to say, well, you should have known that she was a convicted fella, But I think that would have tremendously discredited her, discredited her if it had been known at trial.

and then the way that the children were questioned. I mean, at one point there were eight people that had been were arrested, you know, and with satanic rites. I mean, it was something that was not just happened in Lorraine. It happened all over the country. And I mean the surprising thing is there was plenty of literature on it

at the time that these things happened in Lorraine. You would think that the police, the judge, the prosecutor, and the defense attorneys, you know, should have been aware of what had happened in these other cases and learned from the fact. You know, one of the books that Fatchinelli referred to in his articles was by It was in nineteen ninety. It was you know, sex Abuse Hysteria the Salem Witch Trials Revisited. That's a nineteen ninety book, you know,

showing it is how unreliable these cases were. But it was as if Lorraine was in a vacuum year, but they weren't looking at what had happened and had been debunked throughout the country.

people were involved. But it's it's a tragedy that it took so long to write this injustice.

that you mentioned was extremely damaging. I mean it pushed the police to continue on with a case that they should have dropped, and it caused all of these other children to come forward, two of whom hadn't been contacted by Marge Grondin but became part of the case. But that was all because of that earlier media frenzy.

he died, and it cast a spell on me. That that first book won an International Book Award and right now a Lionsgate is looking at it in terms of a mini series, So if they're interested in that book, and then I'll put a plug in if I can for my second book, Edge of Malice. Here, my wife's best friend was shot at a Burger King while she was going through the drive through. She was an attorney, and it's her struggle for the the Cramo and civil justice system. I was involved in a civil case against

the burger king where this happened. But it's her journey and how she eventually deals with the anger and the hate and the fear towards her assailant. And that's a fascinating story. Even if you don't read my book, if you read another account of it, she's another courageous, courageous.