December 19, 2014

Elyria
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VIDEO: Attorney asks judge to remove himself from death penalty case

Death row inmate Stanley Jalowiec talks to attorneys during a break in his hearing before Judge James Burge on Wednesday in Lorain Common Pleas Court. (CT photo by Bruce Bishop.)

ELYRIA — Assistant Lorain County Prosecutor Tony Cillo asked county Common Pleas Judge James Burge on Wednesday to remove himself from convicted killer Stanley Jalowiec’s case because of a dispute over why Burge didn’t order Nancy Smith and Joseph Allen back to prison in the controversial Head Start child molestation case.

Burge told the Ohio Parole Board on Tuesday that he was the subject of an inquiry by the Ohio Supreme Court’s Office of Disciplinary Counsel. Smith, who maintains her innocence, is seeking clemency from Gov. John Kasich, and Burge was in Columbus to support that effort.

There is no pending disciplinary action against Burge and inquiries typically remain confidential unless investigators file a formal complaint against a lawyer or judge accused of wrongdoing.

Burge said Cillo and Jack Bradley, one of Smith’s attorneys, asked him not to take any further action in the Head Start case until he heard from them after the Ohio Supreme Court ruled in 2011 that Burge didn’t have the power to acquit Smith.

Burge acquitted both Smith and Allen in 2009 after a technical flaw in their sentencing entries brought the cases before him.

But Cillo disputed that he agreed to let Smith and Allen remain free indefinitely when he talked to the Disciplinary Counsel, Burge said.

Given that, Cillo told Burge during Wednesday’s Jalowiec hearing that it would be best if the judge removed himself from the case.

Cillo said he feared if Burge were to grant Jalowiec the new trial he’s seeking, it could appear to be personal animosity toward him. If Burge ruled against Jalowiec, it could look like Burge was seeking a benefit in the unrelated matter, Cillo said.

“I think that leaves a mere appearance of impropriety standard met at this point,” Cillo said. “I thought it would be in the best interest of the case that seems replete with allegations of misconduct that we try to do this as cleanly as possible.”

Burge said he doesn’t fault Cillo for disagreeing with him and didn’t believe the disciplinary inquiry would affect his role in the case, at least during Wednesday’s hearing, which focused on what evidence would be presented at a September hearing.

“It’s a simple disagreement over someone saying yes and someone saying no,” the judge said.

But Burge also left open the possibility that he would get off the case at a later date and told both sides they were free to write legal briefs on the issue.

Tara Thompson, an Exoneration Project attorney representing Jalowiec, said she has no objection to Burge remaining on the case.

“We think that Judge Burge can be fair,” she said.

Jalowiec’s lawyers sought the removal of county Common Pleas Judge Christopher Rothgery from the Jalowiec case last year because Rothgery once filled in at a hearing for a witness in an unrelated matter.

Rothgery agreed to get off the case to avoid the appearance of impropriety although he said he had no recollection of the hearing that Jalowiec’s attorneys raised concerns about.

Lawyers for Jalowiec, who insists he’s innocent of charges he killed police informant Ronald Lally in 1994, have argued that he was wrongly convicted because of police and prosecutorial misconduct.

They say evidence that would have helped Jalowiec prove his innocence was illegally withheld by prosecutors and that several witnesses were given consideration by the state in return for their testimony against their client.

Cillo and his fellow prosecutors have argued that the case against Jalowiec, who was sentenced to death, is solid, and that any mistakes that were made wouldn’t have affected the outcome. Many of the issues now being brought up already have been dealt with by state and federal appeals courts, they contend.

Jalowiec and Raymond Smith were accused of taking Lally to a Cleveland cemetery and shooting, stabbing and beating the man before running him over with a car.

Michael Smith, Raymond Smith’s son, was there was well, but never got out of the car and cooperated with investigators, while Jalowiec and Raymond Smith were tried, convicted and sentenced to death. Rothgery later determined that Raymond Smith is mentally disabled and commuted his death sentence to life in prison.

Danny Smith, Raymond Smith’s other son, was acquitted of charges that he was involved in planning Lally’s murder but is now serving time in prison on unrelated drug charges.

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