ELYRIA — The neurologist Lorain County Common Pleas Judge James Burge testified he consulted when he was preparing to defend convicted killer Melissa Dovala says in a sworn affidavit that he never discussed the case with Burge.
Lawyers for Dovala, who is serving 15 years to life in prison after being convicted of murder, felonious assault and endangering children for the death of 5-month-old Riley Smath in February 2004, argued unsuccessfully in 2010 that Burge was ineffective in his defense of Dovala.
During Dovala’s 2005 trial, Burge, then a defense attorney, argued that slow skull growth that pushed Riley’s still-growing brain against his skull could have caused the head injury that killed the boy. Dovala had been baby-sitting the infant at her Amherst home, and prosecutors argued that Dovala delivered a blow to his head that caused the fatal injury.
In a court filing, Dovala’s current lawyers wrote that Burge testified in 2010 that he had consulted a Dr. Tom Watson two or three months before the trial and that Watson had attended the trial. Watson, Burge testified, was at the time the husband of Laura Perkovic, an attorney who worked with him on the case.
The filing quoted Burge as saying Watson “had an opportunity to review all of the medical records, most importantly the autopsy finding. Based upon his, his opinion that it was an inflicted injury, in fact, and inflicted injury that whoever inflicted it knew they did it, I felt that it would not be a wise use of my time to try to find an expert who would say something different.”
Barry Wilford, Dovala’s lawyer, wrote that Burge’s testimony that he had consulted a neurologist was key to visiting Judge Judith Cross’ ruling that Dovala had received competent representation from Burge and wasn’t entitled to a new trial.
Cross had ruled once before that Dovala shouldn’t receive a new trial, but the 9th District Court of Appeals ruled that she needed to hold a hearing before she could make that determination.
Wilford wrote that he was unable to locate Watson but later learned the neurologist was actually named Thomas Swanson, who was now practicing medicine in Montana.
Swanson wrote in an affidavit signed Wednesday that he never reviewed any records dealing with the Dovala case.
“I never discussed any aspects of this case with James Burge,” Swanson wrote. “I did discuss this case with Laura Perkovic in a casual manner in our home. I remember that there were severe brain injuries to the child including a skull fracture and some intracranial bleeds. I did not officially opine anything regarding the mechanism of the death of Riley Smath. I did not have access to or review the records in any detail that would have allowed a learned opinion in this case.”
Wilford wrote in court documents that Swanson’s affidavit calls “into question the veracity and reliability of Hon. James Burge’s testimony as well as the validity of this Court’s decision.”
Wilford wrote in an email to The Chronicle-Telegram that the ruling upholding Dovala’s conviction and Burge’s defense, which has been upheld on appeal, needs to be re-examined.
“Those rulings should be reconsidered in the light of this revealing and shocking information,” Wilford wrote. “Melissa Dovala is innocent, and she deserves a new trial.”
Burge did not return calls seeking comment Friday night.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.