ELYRIA — Lorain County Common Pleas Judge James Burge will remain on a three-judge panel in a capital murder case over the objections of prosecutors.

In a ruling released Monday, Ohio Supreme Court Chief Justice Thomas Moyer said county Prosecutor Dennis Will failed to prove that Burge would be biased against the state in the case of Manuel Nieves, who is accused of being the triggerman in the August 2004 shooting death of Samuel Walls.

Will had argued that Burge wouldn’t be able to impose the death penalty if Nieves were convicted because of a ruling the judge issued last month that found the state’s lethal injection protocols violate a state law that requires executions to be quick and painless.

Instead of using the current three-drug cocktail that sedates and paralyzes a condemned inmate before stopping his heart, Burge ordered the state to use only the sedative, which experts have said is lethal enough to cause death on its own.

Will had also complained that Burge was overly involved in convincing former client James Filiaggi — executed last year for the 1994 murder of his ex-wife — to seek an 11th-hour stay of execution that ultimately failed.

Burge, a former defense attorney, countered that he had only urged Filiaggi to fight to stay alive as a favor to Filiaggi’s mother and that he would follow his oath of office to obey the law in the Nieves case.

Moyer wrote that Will failed to prove Burge couldn’t be fair, which Burge said was a vindication.

“I’m gratified the chief justice has confidence that I’m not prejudiced or biased against the state,” Burge said Monday.

Will said he hadn’t seen the ruling but was disappointed by the decision.

“We don’t have to agree with an opinion, but we do have to abide by it,” he said. “We’ll do our jobs.”

The ruling leaves Burge free to sit on the panel with fellow county judges James Miraldi and Raymond Ewers in Nieves’ murder trial, which was delayed while Will sought to have Burge removed from the case.

Kenneth Ortner, one of Nieves’ attorneys, said he agreed with Moyer.

“I believe Judge Burge can be impartial and fair to both sides,” he said.

Burge’s controversial ruling on lethal injection, which Will’s office is trying to appeal, only applies in the cases of accused killers Ruben Rivera and Ronald McCloud, who had challenged the constitutionality of Ohio’s lethal injection process.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.

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