In court orders signed Monday, Burge instructed Court Administrator Tim Lubbe to ask the Ohio Supreme Court to appoint a visiting judge to take over the cases of Nancy Smith and Joseph Allen. In 2009, Burge acquitted the two of charges they molested 4- and 5-year-old children on Smith’s bus route in the 1990s after he reviewed their convictions when the case came before him because of technical flaws in the original sentencing entries ordering the two to prison.
“I think I’ve expressed profound bias in favor of the defense,” Burge said.
When he acquitted Smith and Allen, both of whom maintain their innocence, Burge said that he had no confidence the guilty verdicts were correct after reviewing the trial transcripts and the evidence in the case.
And in January, Burge emotionally urged the Ohio Parole Board to recommend that Ohio Gov. John Kasich grant clemency to Smith.
He said during that hearing that Smith was innocent and that the justice system had failed in the case. The Parole Board has not yet issued a recommendation.
Allen, meanwhile, has submitted paperwork in support of a clemency bid, but has not yet turned in a clemency application.
Burge said anything that happens with Smith and Allen before him going forward would be largely administrative in nature. For instance, he said if the pair receives pardons from Kasich he could be asked to seal their case files.
But he said it was better that he no longer be involved.
Burge also said that he decided to take himself off the Head Start case because of an ongoing inquiry by the Ohio Supreme Court’s Office of Disciplinary Counsel.
He said during the Parole Board hearing that the inquiry included questions about why he hadn’t ordered Smith and Allen back to prison after the Ohio Supreme Court ruled he had overstepped his authority when he acquitted Smith.
Burge said he was asked by Lorain County Assistant Prosecutor Tony Cillo and Jack Bradley, one of Smith’s lawyers, not to do anything in the case until he heard from both of them. Cillo, Burge told the Parole Board, denies having said that.
Disciplinary Counsel Jonathan Coughlan has previously said he can neither confirm nor deny that Burge is being investigated by his office. Because Disciplinary Counsel cases are considered confidential, attorneys are barred from discussing them.
Burge acknowledged Monday that the Disciplinary Counsel inquiry goes beyond his handling of the Head Start case, but declined to elaborate.
A Disciplinary Counsel attorney requested audio recordings of proceedings in Burge’s courtroom for 10 days between August and January.
Bradley said Monday he was surprised to learn Burge had taken himself off the case, but he understood the reasoning.
“A judge has to believe they’re going to be fair to both the defense (and) the state of Ohio,” he said. “And if he believed he could not be fair to both sides he had an obligation ethically to remove himself from the case.”
Calls to county Prosecutor Dennis Will, who has said he will support commutation for Smith, but not a full pardon, and K. Ronald Bailey, Allen’s attorney, were not returned Monday.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.