Burge’s decision came a day after county Prosecutor Dennis Will asked the Ohio Supreme Court to force Burge off the case. Will argued that Burge already had determined that Weaver should be acquitted of his 1994 murder conviction because of a letter the judge sent to the Ohio Parole Board in August. Burge wrote in the letter that he had “no confidence that Clarence Weaver is guilty of the murder of his wife, Helen Weaver.”
Burge wrote that he had reviewed the evidence and trial testimony in the case while he was considering whether to grant Weaver’s request for DNA testing on evidence collected after Helen Weaver was discovered strangled in the bathtub of the couple’s Elyria apartment.
The evidence that Burge ordered tested didn’t have enough DNA to be useful, but several pieces of evidence were missing and a rape kit taken during Helen Weaver’s autopsy was destroyed by Elyria police in 1995 despite a departmental policy to keep evidence in homicide cases until after a suspect’s death.
Burge said earlier this week that he didn’t believe his reaction to that evidence should be enough to remove him from the case because he would have to use a different legal standard to determine whether to invalidate the sentencing entry in the case because of a technical flaw and acquit Weaver.
But he said Thursday after reading Will’s request to remove him from the case he decided he had already made up his mind when he first reviewed the case.
“It was clear to me, after this review, that had the present motion been filed at that at that time, I would have vacated the judgment entry and acquitted Mr. Weaver,” he said.
Will said Burge made the right decision to remove himself.
Jennifer Bergeron, one of Weaver’s attorneys from the Ohio Innocence Project, said she was surprised by Burge’s decision.
“Obviously, we’re disappointed since he’s familiar with the case,” she said. “But (Weaver’s) innocence doesn’t change nor does our legal position.”
Bergeron said she will make the same arguments to whichever Lorain County judge gets Weaver’s case — that the sentencing entry is flawed and her client is entitled to a new sentencing hearing. If that happens, she said she will ask the judge on the case to revisit Weaver’s requests to be acquitted.
In a similar case earlier this year, Burge ruled that the flawed sentencing entries prepared by his predecessor, retired Judge Lynett McGough, entitled Nancy Smith and Joseph Allen to new sentencing hearings on their convictions in the controversial Head Start child molestation case.
Burge later acquitted the pair after reviewing the evidence in the case.
Prosecutors didn’t dispute that there was an error in the entries McGough prepared for Smith and Allen, but argued that the mistake could have been corrected by a new sentencing entry. A new hearing wasn’t necessary, they contended. It’s an issue that prosecutors are appealing in the Head Start case.
Will said he is still examining the Weaver case before he files a response to the Innocence Project’s request.
The 73-year-old Weaver, who has always maintained his innocence in the case, is scheduled to have his first parole hearing next month. Will has also opposed Weaver’s release, arguing that he has never shown remorse or accepted responsibility for killing his common-law wife.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.