June 28, 2016

Partly sunny

Lawyer says Judge Burge ‘falsified’ relationship with doctor in 2010 deposition

ELYRIA — Lorain County Common Pleas Judge James Burge’s recent affidavit explaining his dealings with a neurologist in the case of convicted killer Melissa Dovala contained “material inconsistencies,” a court filing quoted the attorney who worked with Burge on Dovala’s 2005 trial as saying.



Dovala’s current attorneys are pushing to have her case given a fresh look because they contend that Burge, then an attorney in private practice, didn’t provide a competent defense for Dovala when she stood accused of killing 5-month-old Riley Smath while baby-sitting the boy at her Amherst home in February 2004.

Visiting Judge Judith Cross has already twice ruled that Burge mounted an adequate defense for Dovala, who was convicted of murder, felonious assault and endangering children and sentenced to 15 years to life in prison.

Barry Wilford, Dovala’s current lawyer, has argued in recent court filings that Burge failed to consult with a neurologist to examine the head injury that killed Riley. Prosecutors told jurors during the trial that Riley died from a blow to the head, but Burge argued at trial that the boy died from his growing brain pushing against his slow-growing skull.

In a 2010 deposition, Burge testified that he had consulted with a Dr. Tom Watson, who was married at the time to Laura Perkovic, the attorney working with Burge on the case.

But Wilford tracked down the doctor, whose real name is Dr. Thomas Swanson, and he swore in an affidavit that he wasn’t consulted by Burge and only discussed the case informally with Perkovic at their house.

In an affidavit filed last week, Burge wrote that since questions arose about his testimony, he went back and reviewed what he said in 2010 and “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.”

But Burge said that he received Swanson’s opinion through Perkovic and during a conversation with Swanson at the Lorain County Justice Center during the trial. Perkovic, Burge wrote, told him that “Tom thinks it’s cold-blooded murder.”

Swanson has denied talking with Burge about the case at the trial as well.

Perkovic, now a deputy attorney general in Idaho, sent Wilford and others involved in the case a letter Feb. 5 offering to discuss her recollections of what happened in 2005.

Wilford wrote that Perkovic told him in a follow-up conversation that there were problems with Burge’s affidavit. Perkovic did not return a call seeking comment Monday.

The Cuyahoga County Prosecutor’s Office, which is handling the case because a member of the Lorain County Prosecutor’s Office staff when Riley died was related to Dovala at the time, has opposed reopening the Dovala case and argued that Burge provided the best defense he could under the circumstances.

Prosecutors also have said that Dovala’s complaints about Burge’s performance have already been examined, and she is improperly trying to bring the issue back up again.

Wilford wrote in his latest court filings that Swanson’s affidavit would lead to the conclusion that “Judge Burge falsified his relationship with Dr. Swanson, and for obvious self-serving reasons.”

Wilford also pointed out that Perkovic didn’t join Dovala’s defense team until no more than a month before the trial started, but testified that he talked with Swanson two or three months before the trial.

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

About Brad Dicken

Brad Dicken is the senior writer for the Chronicle-Telegram. He covers courts and county government, and has been with the Chronicle since 2001. He can be reached at 329-7147 or BDicken@chroniclet.com. Follow him on Twitter.