The Lost Crusade

Paul Facinelli sought to expose a wrongful conviction. It cost him his career.

Chucho Valdés Nighttown, 12387 Cedar Road in Cleveland Heights 7 and 9 p.m., Wednesday, April 18



There are days, he admits, when he misses it: the letters, the calls, the people stopping him on the street. Sometimes they'd come up to him in restaurants. Sometimes they'd just want to tell him what a jerk he was.

"I'd be lying if I told you there wasn't a certain sense of satisfaction when people recognize you," he says. "It can be exhilarating."

But more than anything, Paul Facinelli misses the freedom. For nine years, three times a week, his job was to write pretty much whatever he wanted -- all the things that stoked his passion; all the stuff that pissed him off. And so he did. He wrote about abortion and gun control, about prostitution and drugs, politicians and businessmen. All in the name of entertaining and enlightening the 33,000 readers of Elyria's Chronicle-Telegram.

It was a great gig, being a columnist. Perhaps the best gig -- even better than the same job at one of the big dailies in Cleveland, Columbus, or Cincinnati, where the targets were more nimble and the message muddled in a chorus of competing voices.

That would never be a problem in Lorain County, where having a column in The Chronicle or its rival, Lorain's Morning Journal, was like being king of the carnival barkers. Readers may love or loathe you, but they always paid attention.

It was, nevertheless, an on odd fit. A product of the Vietnam era with a puckish writing style and libertarian streak, Facinelli would fire off salvos against pro-lifers and local Brahmans in the same paper where the front page so often seemed composed under the watchful eye of Ward Cleaver: "Moms to the Rescue," "Lowe's Opens to a Buzz," "Ridge Tool Eyes Elyria for Warehouse."

Somehow it worked. The paper gave Facinelli an audience and autonomy. He gave it a franchise.

"He was," says one former employee, only half-joking, "their meal ticket."

Until May 12, 1998, the day Facinelli was fired. The reason, wrote Chronicle-Telegram Editor Andy Young in his letter dismissing the columnist, was that Facinelli had put his "personal interests into direct conflict with the newspaper's interests in fair reporting and disinterested commentary."

It was a roundabout way of saying Paul Facinelli had found the story of his career. And had gotten in too deep.

It was an irresistible story -- so sad and horrible that it stretched comprehension. On May 7, 1993, the mother of a four-year-old Head Start student contacted Lorain police. While she and her daughter were driving to the store, the mother later testified, the child began explaining how she hadn't gone to school that day. Instead, "Nancy" had taken her to "Joseph's house," where they played "doctor games" and "bad boy games." The girl described how Joseph put a stick inside her after taping her mouth shut.

It was the first allegation to surface in what came to be known as the Head Start case. Within weeks, the media were on it. Other students stepped forward with equally horrific accounts of abuse. There were tales of sexual assault and macabre, ritualistic torture. Kids having needles stuck in them, being tied up, forced to drink urine.

"Nancy" was quickly identified as the children's bus driver, Nancy Smith, a single mother of four with no criminal record. "Joseph" would prove more elusive. It was five months before Lorain police identified 41-year-old Joseph Allen as their suspect. The former sanitation worker had come to their attention after he solicited a minor for sex. Eight years before, he'd been convicted of sexual battery in connection with an attack on a seven-year-old girl.

Smith and Allen went on trial before Common Pleas Judge Lynett McGough in July of 1994. Jonathan E. Rosenbaum, the most experienced attorney in the Lorain County Prosecutor's Office, handled the state's case.

Citing "judicial economy" and the interest of not forcing young children through the ordeal of testifying multiple times, McGough ruled Smith and Allen would be tried together. During the eight-day trial, more than 30 witnesses were called, including parents, cops, and Head Start workers.

But the children's testimony got the most attention. Two boys and a girl, all between the ages of four and six, gave lurid and detailed testimony of physical and sexual abuse. They spoke of how they were forced to shower with Smith and Allen, how the adults performed oral sex on them, how Allen tied them up and threatened to kill them and their families if they said anything.

Even with the kids' graphic testimony, however, the case was far from bulletproof. Police were unable to establish where the abuse occurred. There was only a tenuous link between Allen and Smith, who denied even knowing one another.

Then there were the children themselves. As Rosenbaum conceded in his opening and closing arguments, several kids had trouble identifying Allen in a lineup. During the trial, some of the children were easily confused. The girl who testified couldn't remember the name of her Head Start teacher, nor could she name any of her classmates besides the ones who also alleged abuse. At one point during his testimony, one of the boys said "Joseph" was an aide on the Head Start bus (Allen wasn't), and that the female aide who was on Smith's bus was the one who made him do bad things.

Defense attorneys Joseph Grunda and Jack Bradley argued that the kids' testimony could not be trusted. The children's recollections, they said, had been "contaminated" by initial interviews with authorities, tainted through suggestive questions and the presence of parents during inquiries.

It was hardly a novel approach. Over the previous decade, child sexual abuse cases had vaulted into the public's consciousness, with high-profile prosecutions of serial molesters across the country. By the early '90s, as research in the field became more sophisticated, questions were being raised about how easy it was to unwittingly coerce allegations from kids.

Indeed, a similar case had been resolved just two years before. In 1989, Bobby Fijnje was accused of performing sexual and satanic rituals on numerous children in his Miami church daycare. Two years later, after a 15-week trial, he was acquitted -- largely due to doubts about how victims had been dealt with by a rape treatment center and a child psychologist.

Over the last decade, researchers have found that, while even very young children aren't any more prone than adults to lie in court, the manner in which they are interviewed is crucial to the accuracy of their words.

"Children can make excellent witnesses," Dr. James M. Wood, an associate professor of psychology at the University of Texas at El Paso, told the PBS investigative news program Frontline in its examination of the Fijnje case. "If questioned properly, they usually give honest and accurate testimony. The problem arises, however, if they have been exposed to improper interviewing techniques at some time prior to testifying."

It was exactly the point Bradley and Grunda were trying to make. Because of the way police and social workers had interviewed the kids -- reinforcing assumptions, offering rewards, asking leading questions -- it was impossible to ferret out what really happened, they argued. On two separate occasions during the investigation, Bradley noted, children identified people other than Joseph Allen as the man who molested them.

Yet the contamination argument was missing one crucial element: someone qualified to make it. The defense failed to call an expert to address the possibility. When the jury came back with its decision, it was clear the panel believed the kids were telling the truth.

"What we went on was mostly the evidence we had from what the kids said," a juror told The Chronicle-Telegram after the trial. "We were all in agreement."

On August 4, 1994, Smith was found guilty of rape, attempted rape, and two counts each of complicity to rape and gross sexual imposition. McGough sentenced her to 30 to 90 years.

Allen was convicted of four counts of rape, three counts of felonious sexual penetration, and one count of gross sexual imposition. He was sentenced to five consecutive life terms.

Facinelli was slow to the story that would consume him. He wasn't particularly interested in the Head Start trial and never sat in for testimony. The day the verdict was announced, he wrote a column about a trip to Toronto.

But what he lacked in timing he would make up for in zeal. In the spring of 1996, more than 18 months after Smith and Allen were sent to prison, Facinelli noticed several letters that appeared in The Chronicle. The missives, penned by an Elyria retiree named Raymond Kandt, were critical of how the Head Start case unfolded.

Facinelli was intrigued. He picked up a book Kandt had mentioned by a guy named Ralph Underwager. He began making treks to the office of Smith's former attorney, Jack Bradley, to read transcripts of the interviews police and social workers conducted with the kids.

It wasn't long before he smelled a story. "When I saw these transcripts, it was like I was reading what Dr. Underwager said not to do," he says. "They were doing things that were just not right."

But there were other things to look into as well: more transcripts to review, public documents to pull, witnesses to reinterview. He decided he wanted to work on the story full-time, so he asked his editor, Andy Young, if he could take time off from writing his column.

Young gave Facinelli the green light; Facinelli gave him a true believer.

To the columnist, there were just too many things that didn't make sense: the attendance records that showed the victims were never absent on the same day; the police reports that diverged from trial testimony. There were no places, no dates, no times anyone could nail down regarding the abuse.

Facinelli couldn't accept the logic of it -- that Nancy Smith could pick up 28 kids, unload most of them at Head Start, take the remaining troupe to an undisclosed location, and torture them. All this while driving a school bus -- in the middle of the day -- without anyone noticing.

"The total accumulation of troubling aspects, I can't put a date on it, but the things started to pile up," he says. "If the jury had been aware of all the things I had uncovered, I don't think a reasonable person could have convicted these people."

Inside the Chronicle newsroom, word of Facinelli's project was greeted with surprise and envy. In a paper dominated by young reporters not long out of journalism school, Facinelli was the elder statesman. He had a fatter paycheck. He had a cushier job. He had a bigger ego. And now he'd been given the paper's greatest luxury of all -- time. Even if his colleagues conceded he'd earned the right, some questioned why editors would let him research the story. He was, after all, a columnist -- a professional provocateur whose job for seven years had been to make an argument, not tell a balanced story.

"The lines were clearly blurred," says one former reporter. "In his editorials he had an agenda, but then he was going to come out and run these stories with a news byline on it. It wasn't real clear which was opinion and which was news. It wasn't clear to us, and obviously, it couldn't have been clear to the readers."

"Monsters or Victims," Facinelli's opus, appeared on Sunday, October 6. That first day, the main story took aim at the same target Bradley and Grunda tried to tear down two years earlier: the children's testimony.

There was, however, one major difference. The paper asked two experts to evaluate audiotapes of the children's interviews. One was Melvin Guyer, a psychologist and lawyer who taught at the University of Michigan. The other was Ralph Underwager, the man whose book originally spurred Facinelli's interest.

"The experts' conclusions were essentially the same," wrote Facinelli. "The children's testimony in the Head Start case was hopelessly compromised by manipulative and coercive police questioning methods."

"If these interviews were the basis of testimony on which people were convicted, it is an affront to justice," Guyer told the paper. "If people were convicted, it was on profoundly tainted testimony."

Echoed Underwager: "There is no way these interrogations can be seen to have produced reliable and valid information. If the people accused in this case were convicted, I can assure you it was a travesty of justice."

The only travesty Assistant Prosecutor Jonathan Rosenbaum saw was the one The Chronicle was perpetrating on its readers. Underwager, as it turned out, was well known in legal circles. He testified often in sex abuse cases and was among a batch of experts some prosecutors regarded as hired guns, scholars who would aid the highest bidder in the cause of acquittal. And at every stop, he was followed by a paper trail of discrediting information.

For Rosenbaum, it seemed almost too easy. Just hours after The Chronicle's story appeared, he produced a stack of material culled from his office files outlining every untoward aspect of Underwager's career. "Everybody seemed to have these documents except for Mr. Facinelli and Andy Young," Rosenbaum would later recall.

And what a stack it was. There was a review from the Journal of the American Medical Association savaging Underwager's book. There was notice of Underwager's banishment from testifying in certain courts. Then there was the coup de grâce: an interview with the psychologist published in Paidika, a "Journal of Paedophilia" in the Netherlands, in which Underwager said that pedophilia was a "responsible" choice.

"I think that the portrayal of this man as an expert to make their story is a journalistic travesty," Rosenbaum would say.

When he learned of Rosenbaum's information, Young called Facinelli, who was getting ready for a trip to Florida that afternoon, and summoned him to the office. (Young declined comment for this story.)

"The blood drained from my body when I saw a copy of the thing," Facinelli says of the Paidika interview. "Even though there was not one fact -- we didn't retract one fact, we didn't even clarify anything, that's how solid this story was -- it was damaged by this revelation about Dr. Underwager."

The Chronicle nonetheless published the rest of the series. On Monday, October 7, the paper reported how information not seen by the jury could have affected the case, including Head Start attendance records showing that the four victims were never absent on the same day. The next day, The Chronicle published its final installment, a story on how media attention and parental pressure may have altered the investigation.

The Underwager information had clearly chastened the paper, however. Two days after the series concluded, it published a story about the psychologist, citing much of the information Rosenbaum supplied. The following Sunday, Young penned the paper's mea culpa.

"We at The Chronicle-Telegram did not know enough about [Underwager] before we asked him to critique interviews with four- and five-year-olds in a sex abuse case," he wrote. "We should have known. We should not have used him, and we misserved the readers by doing so."

Facinelli, however, remained undaunted. If anything, the response to Underwager only solidified his belief that his stories were just. "It was a classic ad hominem argument," he says. "They never once disputed what Dr. Guyer and Dr. Underwager said."

Underwager has, in fact, said the interview in Paidika has been misinterpreted, and that he and his wife, who was also interviewed, do not believe sexual contact between an adult and a child is ever acceptable. "Prosecutors have been after my wife and I since 1986, when they publicly labeled us their number-one-enemy experts," says Underwager. "They've gone after us ever since, trying to destroy us."

Rosenbaum was just getting started. After the series was published, he wrote a lengthy response, attacking on multiple fronts. The use of The Chronicle's experts was "an affront to justice" that "continues the victimization of the children who were preyed upon in this case," he wrote.

He questioned Facinelli's credibility, saying he was not a reporter, but a columnist "who believes it is ethically proper to withhold facts if they conflict with his position." For good measure, he noted that Facinelli was "not pro law enforcement and has publicly stated in The Chronicle that prostitution, gambling, and the use of narcotics should all be legalized."

But the real problem, according to Rosenbaum, wasn't what Facinelli had written. It was what he left out, which created the impression that Smith and Allen had been treated unfairly "through the intentional omission of facts and evidence."

The response was never published. It is, however, an interesting document: angry, righteous, articulate -- traits that mirror the reputation of the man who wrote it.

For years, Rosenbaum has been considered among the hardest working and most talented prosecutors in the state, willing to take on the toughest cases and the most high-profile defendants. During his career as an assistant prosecutor, he has prosecuted mayors, a police chief, a school board treasurer, a city auditor, and a city council member. He has convicted countless murderers. He's argued before the United States Supreme Court.

"He's certainly the most formidable trial attorney in that office," says Kenneth Lieux, a criminal defense attorney who's faced Rosenbaum dozens of times.

"He's the best pure prosecutor in the state of Ohio," says Rosenbaum's boss, Lorain County Prosecutor Greg White. "I've always said that, if something happened to me or my family, Jonathan Rosenbaum is the person I would want handling the case."

Nor are his admirers confined to Lorain County. In 1997, Youngstown residents howled in protest after he was fired from his special prosecutor post in Mahoning County for disobeying a judge.

But as much as he's drawn praise, Rosenbaum has also been a lightning rod for criticism, accused of being a bully who goes out of his way to browbeat witnesses, opposing lawyers, and even judges. "He completely controls a courtroom and intimidates everyone," says a reporter who covered Rosenbaum for several years.

Ask attorneys in Lorain County about him, and the first response is often "Well, I gotta be careful with my words here . . ."

Some won't even say that much. When Jack Bradley, the attorney who represented Nancy Smith, is asked what he thinks of Rosenbaum, he pauses before saying anything. Then he simply says it wouldn't be appropriate to comment, due to the strife between the two men over the years.

In depositions, Rosenbaum has conceded that he is an aggressive prosecutor, but that The Chronicle has perpetuated a "win at all costs" image. (He did not respond to numerous messages seeking comment for this story. After a Scene reporter dropped off a letter requesting an interview, his only response was to fax a terse statement taking issue with how the query was worded.)

The deposition response was hardly unusual for Rosenbaum. He has never enjoyed a particularly chummy relationship with the press. He can be profane and condescending and often openly disdainful of the media, say reporters who've covered Lorain County courts. And those are on the rare occasions when he actually talks to them.

"The first time I met Rosenbaum, I went up to ask him a question," remembers a former Chronicle-Telegram reporter, who says he came to like the attorney. "He says, 'What's on your narrow little mind?' Then he just walked away. He was a real prick."

In his most notorious clash with the media, Rosenbaum had a reporter for the Warren Tribune Chronicle thrown in jail after she refused a subpoena to testify before a grand jury.

His lack of confidence in the media goes beyond its legal coverage. In a deposition taken last year, he noted that he doesn't subscribe to either of the Lorain County papers or The Plain Dealer -- and hasn't since he moved to Elyria, more than 20 years ago.

"I learned as a city prosecutor that the stories in the newspaper were not even close to the police report," he explained. "I would have facts floating around in my head that really were detrimental and weren't accurate to prosecuting cases. And I figured, if the rest of the paper was as accurate . . . about other matters . . ., there was really no point."

By the spring of 1997, the controversy seemed to simmer down. Then, in mid-May, Facinelli received a letter from Women in Communications, a professional organization that sponsors local and national journalism contests. A month earlier, the local chapter selected his story for an investigative reporting award. Now it was telling him the award was being held up because of questions about his sources.

In mid-April, Rosenbaum read about Facinelli's award in The Chronicle-Telegram. On May 9, 1997, he wrote a letter to Angela Costello, head of Women in Communications' Cleveland affiliate, telling her that Facinelli's articles "subverted the truth and do a tremendous disservice to victims of sex crimes, to those concerned with bringing sexual offenders to justice, to children, and to the entire criminal justice system."

That wasn't all. Facinelli's series, Rosenbaum wrote, "belittles the victims of sex crimes who seek justice." He asked Costello to rescind the award. "Please do not contribute to the shame and embarrassment that sex-abuse victims feel by rewarding this journalistic travesty without at least considering the issues I have attempted to raise."

Facinelli says he was deeply embarrassed, particularly because the letter was sent to an organization of professional peers. "If he would have stuck to [criticizing] the story, I would have been fine," he says. "It was a wall-to-wall personal attack -- belittling the kids, unethical behavior, paying my sources -- I can't even remember all the false things he said about me."

Believing he'd been defamed, Facinelli contacted attorney Brent English in December 1997 to discuss a suit against Rosenbaum.

But Facinelli wasn't the only one considering litigation. Since October 1996, when the first round of Head Start stories appeared, Rosenbaum had contemplated suing The Chronicle. He had even written letters taunting Editor Young about the prospect. In the fall of 1997, after The Chronicle published another round of stories about the Head Start case, Rosenbaum wrote the editor to inform him that "You and Mr. Facinelli have given me another year to decide whether to sue," according to a column Young wrote.

There was, in fact, only one reason Rosenbaum hadn't: Money.

"I anticipated that there would be litigation over this matter," Rosenbaum would later recall. "I frankly envisioned that I would be the one bringing it, but when I found out that I would have to spend the rest of my life pursuing this, or any little bit amount of money that I had at the time, I gave up on that."

Yet Rosenbaum would end up getting his lawsuit after all. Help, it turned out, came from the most unlikely source: Facinelli.

On May 11, 1998, Facinelli got a call from English's clerk. It had been one year since Rosenbaum's letter to Women in Communications. If Facinelli didn't file a lawsuit against Rosenbaum that day, the statute of limitations would expire. Facinelli talked to his wife, then decided to proceed.

It was, to say the least, an unusual move. In the unwritten canon of journalism, it's understood that, once a reporter writes a story, a reader, a subject -- anyone -- has the right to fire back. Whether that return fire is unfair or personal matters not; it's a code of the job.

Facinelli doesn't see it that way. Rosenbaum's letter, he says, wasn't fair comment on the merits of his stories; it was a personal attack addressed to a group of people who could affect his future.

"This was principle," says Facinelli. "The guy doesn't get to do this. Principle doesn't have to be monumental to be important."

Yet his convictions would push him right into Rosenbaum's hands. When he found about Facinelli's case, Rosenbaum didn't get upset. "I bought ice cream the day I knew he sued me," the lawyer would later admit.

Because he was a county prosecutor, he was entitled to legal defense paid for by the county's insurance. And, as Rosenbaum knew, the best defense is a good offense. He would now get his chance to file a counterclaim against The Chronicle and Facinelli.

"I knew that finally I would be able to afford to go to court and get my side of this out, and I was quite pleased about that," Rosenbaum would say.

Even Facinelli's fans had a hard time understanding the decision. "For the life of me, I can't figure out why he did that," says Bradley. "I can't blame Jon Rosenbaum for defending himself. Paul Facinelli cut off his nose to spite his face."

Young was also less than pleased. The day the claim was filed, Facinelli heard through the grapevine that he was about to be busted down to the copy desk. But around 9 p.m., he got a call at home from a reporter. There was going to be an item about the suit in the next day's paper, and Young had just called the reporter to insert a line saying Facinelli's "continued employment was under review."

The next day, when Facinelli got into the office, he couldn't log onto his computer. Around noon, he was called into Young's office. "There was a firing squad like you wouldn't believe."

Awaiting him were Young, Chronicle Publisher Cooper Hudnutt, Managing Editor Rudy Dicks, Assistant Managing Editor Patti Ewald, and Human Resources Director Brenda Lindsey. Hudnutt told Facinelli he had compromised the credibility of the paper, the columnist recalls, and asked him to resign.

"I said, 'No, you're going to have to fire me.'"

Facinelli pleaded his case. He offered to withdraw the lawsuit. He offered to go on probation for three months, to go a month without pay -- anything to keep his job.

"This is 12-plus years, over 20-plus writing awards," says Facinelli. "I had been the Sunday editor, assistant metro editor, newsroom writing coach. They could not fire me on merit."

Hudnutt said it was too late.

The firing surprised few in the newsroom. Young was seen as a pedant by his staff, a stickler on matters high and low. "He really misses the big picture and focuses on these little, tiny nitpicky things, and he would belabor them over and over and over again," says a former staffer. They knew he would never allow Facinelli's transgression to pass without consequence.

Yet there would be an appropriately weird postscript. Days later, in a front-page column, Young praised Facinelli for his "wonderful metaphors and similes," his passion for civil liberties, his penchant for "undressing stuffed shirts, exposing fakers, confronting tyrants."

Facinelli's work at The Chronicle, it turns out, was also not finished. Two months later, on July 12, 1998, another two-part series appeared on the Head Start case, this time regarding the reliability of a witness who helped to establish the link between Smith and Allen. Facinelli had all but completed the articles when he was fired. Chronicle reporter Pam Plas was ordered to go through the series to double-check its accuracy, yet the stories ran virtually unchanged from Facinelli's version, he says. The stories ran without a byline.

A month after the decision, Rosenbaum, as expected, filed a counterclaim against Facinelli, Young, Cooper Hudnutt, Chronicle owner Art Hudnutt, and The Chronicle-Telegram.

Much of his claim revolves around stories and columns the paper ran about Joseph Allen's November 1993 lineup. A videotape of the lineup shows how several of the children had difficulty identifying him from the six men assembled. Though Rosenbaum listed the video in his discovery filings before the trial, he did not notify defense attorneys that it contained evidence that might clear Allen. The paper hammered away at this point again and again.

Rosenbaum claims he was defamed because the tape was not exculpatory. The police report indicated that the kids didn't pick Allen because they were clearly afraid of him. "It's fine if you disagree with a public official or the way an official conducts his official responsibilities, but not when you start falsely accusing the public official of violating the law in performance of his duties," says Rosenbaum's attorney, Eric Zagrans.

The lawsuit has been making its way through the court system, however slowly, ever since. The depositions haven't been pretty for anyone. Young has looked evasive: "As a columnist, I have no obligation to report the truth," he has said. Facinelli has looked self-righteous: "I believe your client suborned perjury," he told Rosenbaum's attorney. And Rosenbaum has looked like a man with a martyr complex: "It was very clear to me from the tenor of things that he was out to destroy either me or the Lorain County Prosecutor's Office."

Even so, things have turned out far better for Rosenbaum than Facinelli. In late February, he won a motion for summary judgment against Facinelli's original claim. Judge Richard Markus found there was no evidence that Rosenbaum's letter caused Facinelli economic harm, a key element of defamation suits.

It was a stinging blow. The lawsuit was Facinelli's final forum, the last place he'd be able to confront Rosenbaum, to get answers about the Smith and Allen case, to find some vindication. He had lost his job, his public voice, and $5,000 in legal fees. Now the forum was gone too.

Only Rosenbaum's claim against Facinelli and The Chronicle-Telegram remains.

"It's the old adage: Be careful what you wish for; you might get it," says Zagrans. "As the Japanese at Pearl Harbor did, [Facinelli] awakened a sleeping giant and filled him with terrible resolve."

Facinelli's only wish these days is to move on. There are, of course, days when he misses the old job: the letters, the calls, having people recognize him. But he doesn't miss it too much. He's found a new audience, the ninth-graders at Jane Addams Business Career Center on Cleveland's East Side, where he's a substitute math teacher.

He admits he'd do things differently. He admits that -- knowing what he does today -- he wouldn't have filed a lawsuit. Even so, the real frustration isn't from losing his job, he says. It's from realizing that, for all the effort he put into his Head Start series, he didn't make a difference. Smith and Allen remain in prison; both the Ninth District Court of Appeals and the Ohio Supreme Court have upheld their convictions.

"What good did it do? My voice didn't mean shit. It didn't accomplish a damn thing. I laid it all out . . . and nothing happened."

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