August 28, 2014

Elyria
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Burge says he talked to surgeon’s wife

ELYRIA — Prosecutors on Monday urged a judge to reject a request by convicted killer Melissa Dovala’s attorneys to reopen her case because a medical expert her trial lawyer, now-Lorain County Common Pleas Judge James Burge, has testified he consulted said in a sworn affidavit that he never discussed the case with Burge.

But in his own affidavit, Burge wrote that the discussions with Dr. Thomas Swanson took place through Swanson’s then-wife and Burge’s co-counsel on the Dovala case, Laura Perkovic.

“After reviewing his deposition testimony, affiant has determined that his testimony would clearly cause a reader to believe that an on-going and formal consulting relationship existed between affiant and Dr. Thomas Swanson when, in fact, Dr. Swanson’s opinions, which included the unlikely efficacy of affiant’s theory of defense, were offered informally to his wife, co-counsel Laura Perkovic, and only summarily to me when Dr. Swanson appeared at trial,” Burge wrote.

Swanson’s opinion as told to him by Perkovic, Burge wrote, was that “Tom thinks it’s cold-blooded murder.” That’s an opinion, Burge wrote, that could only have come from someone with knowledge of the medical evidence in the case.

Swanson wrote in an affidavit filed last month that he was never consulted by Burge and only discussed the case informally in his home with Perkovic. He wrote that while he did go to the Lorain County Justice Center during the trial he was there for only about five minutes and denied discussing the case with Burge or Perkovic while there.

Burge argued during Dovala’s 2005 trial that the death of 5-month-old Riley Smath in February 2005 could have been caused by Riley’s growing brain pushing against his slow-growing skull. Prosecutors contended that Dovala was responsible for the fatal blow that killed Riley while he was being cared for at Dovala’s Amherst home.

She was convicted of murder, felonious assault and endangering children and sentenced to 15 years to life in prison.

Burge wrote that he had already formulated his defense strategy before he received Swanson’s opinion. He also consulted an OB/GYN in the case.

Dovala’s attorney, Barry Wilford, has argued that Burge’s “now discredited testimony” should allow his client to reopen her arguments that she received ineffective legal representation by Burge, who they contend failed to investigate the case and prepare for trial.

It’s an argument Dovala’s appeals lawyers have advanced in the past. Visiting Judge Judith Cross rejected the idea that Burge provided a poor defense, but was reversed by the 9th District Court of Appeals, which ordered her to hold a hearing on the matter.

At the 2010 hearing, Dr. Andrus Pliplys, a neurologist working for Dovala, testified that Riley’s injuries were caused by a quick burst of pressure on the skull, although prosecutors argued that testimony was filled with contradictions and vague descriptions.

Following that hearing, Cross again ruled that Burge had provided an effective defense, a decision later upheld by the appeals court. Wilford argues Cross’ decision might have been different if Burge’s deposition testimony hadn’t been incorrect.

Assistant Cuyahoga County prosecutors T. Allan Regas and Brent Kirvel wrote Monday that Burge did investigate the allegations against Dovala before the case went to trial. Cuyahoga County prosecutors handled the case because a relative of Dovala’s worked at the Lorain County prosecutor’s office at the time.

“Regardless of whether trial counsel consulted a second, third, or fourth neurologist — the fact remains: Dovala’s neurologist did not present an opinion that would have changed the outcome at trial,” Regas and Kirvel wrote.

They also noted that Burge was limited in what he could do at trial because of statements Dovala made to police in which she insisted that neither she nor any of the other children she was watching that day harmed Riley, Regas and Kirvel wrote.

“ ‘Once again, I’m trying to offer as many explanations other than my client’s guilt for what occurred,’ ” they quoted Burge as testifying in 2010.

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