ELYRIA, Ohio — The former Lorain County prosecutor is facing new allegations about his conduct in office. The latest claims against JD Tomlinson were leveled in a motion filed by the current prosecutor, Tony Cillo, related to Tomlinson’s efforts to overturn the convictions in the controversial 1990s Head Start sex abuse case.
The motion to vacate judgments in the case argued that Tomlinson acted outside of his authority, and he and his chief of staff, Jim Burge, “committed a fraud against the court” by conspiring with the defense to exonerate Nancy Smith and Joseph Allen.
Smith, a former Head Start bus driver, was accused of driving the pre-schoolers to Allen's home, where prosecutors said the pair sexually assaulted the children. They were tried, convicted and served prison time for their convictions.
In 2022, Tomlinson initiated a new trial and dismissed the charges against Smith and Allen.
RELATED: Charges dismissed in Lorain County Head Start sex abuse case
“I want to say that I apologize to you, especially for what was done to you and your families as a result of this ill-conceived prosecution,” Tomlinson told Smith and Allen following their 2022 exonerations.
Monday’s court documents said the case had a “long, sordid history,” including a “myriad of manuevers instituted by Smith to undo” her conviction.
The 305-page motion included emails between Tomlinson, Burge and Smith’s defense team. It said the communications were evidence that the group had conspired to create a “predetermined fabrication” to exonerate Smith.
Cillo also pointed to social media posts as evidence that Smith was involved in Tomlinson’s campaign for county prosecutor, saying he was inclined to take up her case for political benefit.
Burge, a former judge who oversaw the Head Start case, issued several rulings that were overturned by higher courts before he eventually became chief of staff for the Tomlinson prosecutor’s office.
"Most disturbing is the myriad of violations of ethical precepts and rules of professional conduct in this case,” Cillo said in the filing.
He said Tomlinson acted outside his authority when he amended a previous sentence agreement.
Nearly a decade earlier, Smith had negotiated an end to her prison time by agreeing not to pursue legal action, including civil litigation.
When she was exonerated and the sentence agreement amended, she did file a wrongful conviction lawsuit.
Cillo said some of the actions during the proceedings could be considered criminal.
"They engineered one of the most flagrant frauds upon the entire state of Ohio in recent history,” he said in the motion.
TOMLINSON RESPONDS
JD Tomlinson issued a statement to News 5, refuting the latest allegations:
“The decision to exonerate Nancy Smith and Joseph Allen was mine, and mine alone.
The notion that I perpetrated a fraud upon the court or traded justice for the political support of one person is an outrageous lie–a ridiculous conspiracy theory born out of revenge and resentment.
In my opinion, the only people in Lorain County that still cling to the fantasy of Nancy Smith and Joseph Allen’s guilt are Tony Cillo and Jonathan Rosenbaum–the same men who either carried out the injustice or lacked the courage to correct it. I look forward to once again exposing their cowardice to the world.
My heart goes out to Nancy and Joseph. Apparently, spending a combined 40 years in prison for crimes that never occurred isn’t enough.”
WHAT SMITH’S ATTORNEY SAYS
Mark Godsey, an attorney from the Ohio Innocence Project representing Smith, also responded to News 5:
“The premise of the filing is that prosecutors should only prosecute, and never correct injustices. And that prosecutors somehow break the law if they correct an injustice or drop charges against an innocent person. And that by correcting an injustice in the Nancy Smith after a five-month investigation, JD Tomlinson somehow committed fraud. It is a silly brief, taking ordinary emails and discussions of the type that occur between prosecutors and defense attorneys every day in Ohio and across the country, and because the emails discuss correcting an injustice, salaciously calling it "fraud." The brief reflects more on the ethics of the current prosecutor than former county officials, and it's a sad day when a prosecutor thinks JD Tomlinson's heroic efforts to correct a longstanding injustice is somehow improper. Nancy Smith has already just this year won a similar motion filed by the city, and this motion is just retreading the same old things. It is legally incorrect and without merit, and I predict it will have no more success than the last one.
“In my opinion, this is about Nancy smiths lawsuit against those who wrongfully convicted her. In my opinion, they are improperly trying to undo her exoneration so that the wrongdoers don’t have to face the consequences for what they did to Nancy smith. It’s shameful really. Fortunately, it’s meritless and will fail.”
Both Tomlinson and Burge were indicted on criminal charges in 2024, stemming from a settlement with a former employee whom Tomlinson dated. The charges were ultimately dismissed for a lack of cooperation by a key witness.
RELATED: Criminal case dismissed against Lorain County prosecutor
Catherine Ross is the Lorain County reporter at News 5 Cleveland. Follow her on X @CatherineRossTV, on Facebook CatherineRossTV or email her at Catherine.Ross@wews.com.
