ELYRIA — Assistant County Prosecutor Tony Cillo could have left the county Justice Center in handcuffs Monday.
Instead, a judge will be appointed to decide if Cillo should be punished for writing in a motion that county Common Pleas Judge James Burge would be deliberately “sandbagging” a death penalty case if he ruled against the state.
Burge, who held Cillo in contempt last week, agreed to let another judge step in after he said Assistant County Prosecutor Scott Serazin made good points when he argued that Burge already had made up his mind that Cillo was in contempt and couldn’t hold a fair hearing.
But another argument made Monday by Serazin — that Cillo’s use of “sandbagging” in the motion opposing joining the death penalty cases of Ruben Rivera and Ronald McCloud, who contest the constitutionality of the state’s lethal injection process, wasn’t disrespectful to the court — wasn’t so well-received.
“What this says here is if I rule against the state of Ohio I’ll be ruling wrongly, doing it deliberately,” Burge said. “… Either rule for the state of Ohio or declare myself unethical.”
Before allowing Serazin to speak, Burge said Cillo, who was unusually subdued as he sat in court, had been heading toward a contempt citation for a long time.
The behavior, Burge said, began when Cillo was arguing against Burge’s decision earlier this year to reduce the sentence of Thomas Holmes, who was serving a 23-year sentence for attacking his wife with a hammer, to six years.
After that hearing, Burge said Cillo told him that “I’d lost my way and my decision to reduce Mr. Holmes’ sentence was nothing less than sheer lunacy.”
Cillo also told Burge’s court reporter Tracy Reiman, Terry Zirzow — Judge Mark Betleski’s civil secretary — and Judge Christopher Rothgery that if Burge wanted to reopen old sentencings, he should start with Dan Urbin, Burge’s bailiff.
Urbin served 60 days in the county jail and spent three years on probation after being convicted in 2001 of selling alcohol beverages without a permit and complicity to unlawful interest in a public contract.
Burge said that even though Urbin has already served his sentence, which can’t be changed, he still took it as a threat.
“The court believes that threat was made to three separate people so it would get to me and straighten me out,” he said.
Reiman, Zirzow and Rothgery said they didn’t take Cillo’s comments as threatening at the time.
“I think he was just blowing off steam,” Rothgery said. “I didn’t take it as a serious threat.”
Burge also said he yelled at Rivera’s attorney Kreig Brusnahan at a previous hearing after Brusnahan lost his cool when Cillo accused him of dishonesty in a dispute over evidence.
After Monday’s hearing, Brusnahan said that Cillo has been disrespectful to him, other attorneys and judges for a long time.
“It’s disrespectful not just to the judge, but to the justice system itself,” Brusnahan said.
County Prosecutor Dennis Will declined to comment on Burge’s decision to have another judge decide if Cillo was in contempt and what sort of punishment he should face. Will said only that his office would deal with the issue at the next hearing.
Administrative Judge Edward Zaleski said he plans to ask a Cuyahoga County judge to oversee further contempt hearings against Cillo.
Also Monday, Burge said that he will continue to move ahead with hearings on whether the lethal injection process in Ohio is cruel and unusual, saying it’s an issue that should be examined before the Rivera and McCloud go to trial.
“The statute says death,” Burge said. “It doesn’t say death plus pain — otherwise the state would be allowed to have someone burned at the stake, drawn-and-quartered or torn apart by dogs.”
Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.

Bruce Bishop / Chronicle
Assistant Lorain County Prosecutor Anthony Cillo listens as Judge James Burge talks about his decision to ask another judge to hear the contempt charge.

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