April 24, 2014

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Ohio Supreme Court disciplinary office wants tapes from Judge Burge’s courtroom

ELYRIA — The Ohio Supreme Court’s Office of Disciplinary Counsel has requested audio recordings of proceedings in Lorain County Common Pleas Judge James Burge’s courtroom for 10 days stretching back to August.

Burge

The requests were not sent through Burge, who has said he is the subject of a disciplinary inquiry, but to county Administrator Jim Cordes and Ernie Smith, the head of the county’s IT Department.

The requests don’t indicate why Assistant Disciplinary Counsel Heather Coglianese sought the recordings for Aug. 3, Aug. 13, Sept. 13, Sept. 20, Oct. 12, Nov. 5, Dec. 21, Dec. 28, Jan. 11 and Jan. 18.

All but two of those dates were Thursdays and Fridays, when Burge handles the majority of his criminal docket. The other two dates were Mondays.

The most noteworthy event that took place in Burge’s courtroom on the dates requested, according to a review of Burge’s schedule and The Chronicle-Telegram’s archives, was a jury’s decision on Dec. 21 to acquit an Oberlin man of charges he had molested a 1-year-old girl.

None of the days had hearings scheduled that dealt with the Head Start child molestation case, which is the only matter Burge has publicly stated that he is being reviewed by the Disciplinary Counsel.

He told the Ohio Parole Board during a hearing last month for Nancy Smith, the former bus driver seeking clemency for her conviction of charges she molested children on her route in the early 1990s, that the Disciplinary Counsel was investigating why he never ordered Smith and her co-defendant, Joseph Allen, back to prison.

Burge acquitted the pair, who maintain their innocence, in 2009 after their cases came before him because of technical flaws in their original sentencing entries. Burge reviewed the evidence and said he had no confidence that the guilty verdicts were correct.

County Prosecutor Dennis Will fought the issue to the Ohio Supreme Court, which ruled in 2011 that Burge had overstepped his authority. Will isn’t opposing commuting Smith’s sentence to time served but has said he doesn’t support a full pardon.

Burge told the Parole Board that he had scheduled a hearing to resentence Allen and Smith, but Jack Bradley, Smith’s longtime attorney, and Assistant County Prosecutor Tony Cillo asked him to hold off doing anything until he heard from both of them. Burge has said he was happy to accommodate that request since he believes Smith and Allen are innocent.

Cillo, Burge told the Parole Board, denied having made that request.

Burge said Tuesday he only learned of the Disciplinary Counsel request for recordings when Cordes forwarded Coglianese’s latest email request to him and Will.

Burge said the only conclusion he can come to is the requests have to do with the disciplinary inquiry.

“I don’t care if someone peeks into my windows at night, as long as I know who it is and when they’re doing it,” the judge said.

Disciplinary Counsel Jonathan Coughlan said Tuesday that he couldn’t confirm or deny that his office requested the recordings or even if an inquiry is ongoing. Such matters are considered confidential, he said.

Assistant County Prosecutor George Koury declined to comment Tuesday.

Cillo has requested that Burge remove himself from the case of Stanley Jalowiec, a death row inmate convicted of killing police informant Ronald Lally in 1994, who is seeking a new trial, because of the comments the judge made to the Parole Board.

Burge also has come under fire in recent weeks from attorneys representing Melissa Dovala, who is serving 15 years to life in prison for the 2004 murder of 5-month-old Riley Smath. Burge was Dovala’s trial attorney, and her new lawyers contend he didn’t provide an adequate defense and lied during a 2010 deposition about whether he had consulted a neurologist about the case.

Burge has said his co-counsel during Dovala’s 2005 trial, Laura Perkovic, discussed the case with her husband, Dr. Thomas Swanson, and she relayed Swanson’s opinion to him.

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