In 2011, Davis Polk began our representation of Nancy Smith, a Head Start school bus driver who was wrongfully convicted in 1994 of sexually abusing preschool students who rode her bus. Nancy, a single mother of four, was sentenced to 30-90 years in prison, leaving her children to grow up without her.

Nancy’s conviction – multiple counts of rape, attempted rape and gross sexual imposition – was part of a sensationalist wave of “day care sex abuse” cases that swept across the United States in the 1980s and early 1990s. The case was instigated by a Lorain County, Ohio, parent who had created hysteria in her community in the midst of nationwide panic about fantastical accusations concerning ritual sex abuse that targeted young children. Through communications with the press and efforts to influence other parents and their children to make accusations, the fear she sparked led to a witch hunt. Nancy and her co-defendant were ultimately convicted in the absence of any physical evidence that the children involved in this case had ever been abused, let alone in the manner alleged. Nancy’s appeals and efforts to obtain post-conviction relief were unsuccessful, and her attorney at the time failed to file a timely habeas corpus petition in federal court.

Fourteen years later, an unusual procedural defect in her sentencing order led to another review of Nancy’s case, including evidence never presented to the jury that convicted her. Upon this second look, the reviewing judge acquitted Nancy and her co-defendant, releasing them both from prison in 2009.

We became involved in Nancy’s case through the Ohio Innocence Project and not long thereafter, the Ohio Supreme Court ruled in 2011 that the judge who acquitted her did not have jurisdiction. The ruling meant that she would need to complete the remaining 15-75 years of her prison sentence, yet no action was taken to schedule a resentencing hearing or re-incarcerate her. Nancy was left in limbo – she continued to rebuild her life at home despite the ever-present threat of being returned to prison.

As we worked to resolve the case, Nancy’s plight gained national attention and was featured on NBC’s Dateline and CNN’s Anderson Cooper 360°. We filed an application with the Governor of Ohio for commutation of her sentence or pardon. The then-Lorain County Prosecutor was supportive of commutation.

In 2013, while we waited for action from the Governor, the Ohio Supreme Court, pursuant to its 2011 directive, assigned the matter to a new judge and mandated that Nancy return to prison. However, we reached an agreement with the Lorain County District Attorney that ensured Nancy would never return to prison. She also would not have to register as a sex offender, and could continue to pursue her application for a pardon.  

Nancy finally achieved justice this year. On February 25, motions filed for a new trial were granted. The motions were based upon newly discovered evidence; the parent who had instigated the action against Nancy is now engaged in a similar pattern of behavior targeting a member of her own family. Additionally, significant flaws in the original investigation were revealed in light of the advancements made since 1994 in techniques for properly interviewing children and investigating sex crimes against them.

The guilty verdicts had always been notoriously controversial and the current Lorain County District Attorney campaigned on a pledge to reinvestigate the case. Once the new trial was granted, he announced he would not seek to retry the defendants because his investigation had concluded – as Nancy had always proclaimed – she was innocent. In fact, no crime had ever been committed. All of the charges against Nancy Smith and her co-defendant were dismissed.

Many members of the Davis Polk community worked on Nancy’s case over the last 11 years. Our team included senior counsel and former Special Counsel for Pro Bono Sharon Katz, former senior counsel James W.B. Benkard (deceased), former Special Counsel for Pro Bono and U.S. District Judge Hon. Ronnie Abrams, counsel Brett M. McMahon, former counsel Nancy B. Ludmerer, associates Lindsay Schare and Jason H. Sugarman, former associates William D. Pollak, Samir Kaushal, Justin Sommers, Erika Vignoli, Britt Kovachevich, Ina Dogani, Korey Boehm and Hunter Books Mims, law clerk Madeleine Vera Wykstra, senior legal assistant Edgar Bernard Halford, and former legal assistant Tracy M. Wright.

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