ELYRIA — Lorain County Common Pleas Judge James Burge may have to remove himself from one of the cases in which he made a controversial death penalty ruling earlier this year.

Assistant County Prosecutor Tony Cillo has filed a motion asking Burge to take himself off the case of accused killer Ruben Rivera because Cillo plans to call Burge’s brother-in-law as a witness.

In his request to have Burge remove himself from the Rivera case, Cillo said Burge’s brother-in-law, Robert Cruzado, is an important state witness.

Cruzado is a corrections officer at the Lorain County Jail and “can help substantiate that Ruben Rivera was planning to kill Shareaka Bason because she is an eyewitness to the defendant murdering Manuel Garcia,” Cillo wrote.

Rivera is accused of forcing his way into Garcia’s Lorain home gunning down Garcia, a small-time heroin dealer, in August 2004. Two other men, Carlos Ortega and Bruce Chisholm, have already been convicted and sentenced to life in prison for their roles in the Garcia slaying.

Police also have accused Rivera of plotting to kill Bason, Garcia’s girlfriend, with Angel David, an inmate at Trumbull Correctional Institution. The pair, who police say are members of the same gang, allegedly plotted to kill Bason through letters they exchanged while they were both incarcerated.

Both Rivera and David have both pleaded not guilty to conspiracy to commit murder charges.

Burge ruled earlier this year that Rivera and Ronald McCloud — who also could face the death penalty if convicted in a separate Lorain murder — must be executed using only a sedative if they’re convicted and sentenced to die by lethal injection. Burge concluded that the state’s current protocols, which use a three-drug cocktail to kill condemned inmates, could be painful if not administered correctly and violates a state law that requires executions to be quick and painless.

Prosecutors, including Cillo, contend the current execution process is humane, and that Burge overstepped his bounds. In earlier court hearings, Cillo also has asked Burge to remove himself from the case in part because the judge asked his former client, James Filiaggi — executed last year for the 1994 murder of his ex-wife — to make a last-minute legal bid to save his life.

Burge has said he did so at the request of Filiaggi’s mother and insisted that he wasn’t pushing an anti-death penalty agenda by holding hearings to review how the state carries out executions.

Rivera’s defense attorney, Kenneth Lieux, said he has no idea what Cruzado will testify to and isn’t certain that if it will make a difference in the case. But he does believe prosecutors want another judge.

“It seems pretty apparent they want the judge off the case, and they’ll try anything,” he said.

Lieux said Rivera has told him he hasn’t spoken to Cruzado while he’s been in the county jail. And he said it’s up to Rivera, not prosecutors, to ask the judge to remove himself from the case, but that decision can’t be made until Rivera and his legal team find out what Cruzado will say if he testifies.

“We still have the first question of what Cruzado is going to say,” Lieux said.

Burge said it seems pretty clear to him that if Cruzado testifies, he’ll have to remove himself from the case, but he’s scheduled a hearing for later this month to review the evidence before he makes a final decision.

If he does, Burge said, prosecutors could ask the new judge to throw out his ruling on how Rivera should be executed if he’s convicted and sentenced to death.

Prosecutors did not return a call seeking comment Thursday.

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

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