ELYRIA — Lorain County Prosecutor Dennis Will has asked the Ohio Supreme Court to stop county Common Pleas Judge James Burge from moving forward with a capital murder trial with a hand-picked three-judge panel.

In court documents filed last week with the Ohio Supreme Court, Assistant County Prosecutor Billie Jo Belcher wrote that Burge improperly appointed fellow judges Raymond Ewers and Edward Zaleski to serve on the panel that will hear the case of accused killer Ronald McCloud next year.

The responsibility of picking the judges, Belcher wrote, should have fallen to Presiding Judge Mark Betleski, who selected the last three-judge panel to hear the case of now-convicted killer Manuel Nieves.

Betleski used a lottery to select Burge and Ewers to serve with Judge James Miraldi on the panel that ultimately found Nieves guilty but spared him a death sentence, a process he said he cleared with the Ohio Supreme Court.

But earlier this year, the bulk of the county’s judges agreed to allow each judge to choose the judges for panels in whatever method he wanted.

Betleski, however, disagreed with the decision.

Betleski refused to sign an order naming Zaleski and Ewers the judges in the case.

It could, he said, create a problem that could lead an appeals court to overturn a conviction if McCloud were to be found guilty and sentenced to death.

“My interpretation is why take the chance, and that’s what I told the other judges,” he said.

Belcher shared the concern that the selection process for a three-judge panel could jeopardize a conviction surviving an appeals challenge if the panel is allowed to stand, even though McCloud and his attorneys said they had no problem with how the panel was picked.

As administrative judge, Zaleski said he has the authority to sign the order naming himself and Ewers to the panel and did so.

“The administrative judge gets to pick them,” he said. “Where’s it say anything about a random draw in the statute?”

Zaleski said he and the other judges have hired Lorain attorney Anthony Giardini to represent Burge in the case because it affects all of them and how they pick panels in future cases. But he also questioned the wisdom of having a potentially expensive legal battle over the issue.

Burge declined to comment on the Supreme Court case against him, but in the past has said he believes he acted legally. After prosecutors complained about how he picked the panel, Burge reconsidered his decision and decided he was right, leaving the panel in place.

McCloud is accused of raping and killing 57-year-old Janet Barnard in the restroom of a Lorain church in 2005.

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

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