ELYRIA — Lorain County Common Pleas Judge James Burge removed himself from the case of accused killer Ruben Rivera on Monday.

Prosecutors plan to call Burge’s brother-in-law, Robert Cruzado, as a witness against Rivera. Cruzado is a corrections officer at the Lorain County Jail and is expected to testify that Rivera told him about a plan to kill a key witness against Rivera.

Rivera could get the death penalty if convicted of aggravated murder in the August 2004 shooting death of small-time heroin dealer Manuel Garcia. He also is accused of plotting to have Garcia’s girlfriend, Shareaka Bason, killed so she couldn’t testify against him.

Police say they intercepted letters between Rivera and Angel David, who was serving time in a state prison on drug charges, in which the two men discuss killing Bason.

Bason already has testified against two other men charged in Garcia’s death — Carlos Ortega and Bruce Chisholm, both of whom are serving life prison terms — and her testimony from those cases could have been used against Rivera if the pair’s plot had been successful, according to prosecutors.

Lorain police Sgt. Mark Carpentiere said the letters — which he has said were filled with grammar and spelling errors and gang slang —  are still being translated from Spanish by the FBI.

Burge said he also will remove himself from David’s case because Cruzado could be called as a witness in that trial as well.

Kenneth Lieux, one of Rivera’s attorneys, said he is still surprised that Rivera allegedly confided in the one corrections officer at the jail who would force Burge off the case.

“Four years he’s been in the county jail and now, all of a sudden, out of the blue, he’s talking about his case?” Lieux said.

County Prosecutor Dennis Will said Burge made the right decision to step aside.

“Always error on the side of caution,” he said.

Burge’s decision to get off the Rivera case could also have an impact on the judge’s controversial ruling earlier this year that Rivera and Ronald McCloud — who also could face the death penalty if convicted in a separate Lorain murder — could only be executed by a massive dose of a sedative.

Burge found that the current three-drug cocktail used by the state in lethal injection executions could cause a horrifyingly painful death. He said the risk was high enough that the current protocols violated a state law requiring executions to be quick and painless.

Both prosecutors and attorneys for Rivera and McCloud are appealing that ruling.

The state contends its lethal injection process is safe and constitutional, while defense attorneys believe Burge should have taken the death penalty off the table as a possible sentence if their clients are convicted.

Kreig Brusnahan, one of Rivera’s attorneys, said prosecutors could ask the next judge assigned to the case to take another look at the issue.

“Another judge could revisit it if asked,” Brusnahan said. “However, Judge Burge heard days of testimony prior to ruling on this, so it would be difficult to perceive how a judge could come to a different result without additional hearings.”

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

 

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