October 23, 2014

Elyria
Partly sunny
53°F
test

Former assistant disputes Burge’s recounting

ELYRIA — Laura Perkovic testified in a deposition last month that she never told Lorain County Common Pleas Judge James Burge that her neurologist ex-husband told her the 2004 death of Riley Smath was “cold-blooded murder.”

Burge

Burge has insisted that Perkovic conveyed the opinion of Dr. Thomas Swanson to him in the run-up to the 2005 trial of Melissa Dovala, who was convicted of murder and sentenced to 15 years to life in prison.

Dovala’s current attorneys are pushing for a new trial for their client, arguing that Burge failed to mount an adequate defense for the Amherst woman while he was still a criminal defense attorney.

Perkovic, who is now a deputy attorney general in Idaho, joined Dovala’s defense team about a month before the trial so she could get experience working on a high-level felony case. She testified in her deposition, a transcript of which was filed Thursday, that Burge assigned her to review the medical evidence in the case.

Perkovic testified that she reviewed medical literature and that Burge asked her to have Swanson take a look at medical information dealing with the cause of Riley’s death.

Prosecutors argued during the trial that the 5-month-old was killed by a blow to the head while Dovala was baby-sitting the infant, while Burge suggested the boy could have been killed by his still-growing brain pushing up against his slow-growing skull. There also was some discussion during the deposition that Burge and Dovala’s mother had talked about the possibility that another child in the home could have caused Riley’s death.

Perkovic said she recalls showing her then-husband either the autopsy photos or the autopsy report, or possibly both.

“And he said, ‘Well, as it’s brain trauma, I am qualified to discuss, you know, or consult with Jim on the case. But I would have to be formally retained,’ ” Perkovic said. “…He certainly was not willing to go any further or render any kind of casual opinion or give any kind of casual impression just by the review of whatever I had presented to him at the time.”

Perkovic’s recollection clashes with what Swanson wrote in an affidavit. Although he acknowledged that he had discussed the case casually with Perkovic, he denied having seen any medical records.

Burge on Thursday said he still remembers Perkovic saying that Swanson thought Riley’s death was “cold-blooded murder.”
“I distinctly recall her saying that,” Burge said. “It’s a direct quote.”

Perkovic, however, testified that she would have remembered using that phrase and never used it. She also said that she never told Burge that Swanson had given any sort of opinion on the case and didn’t think she had given him that impression.

But in a letter Burge wrote to Perkovic in March, the judge wrote that Perkovic was largely an unknown quantity as a lawyer when he agreed to let her work with him on the Dovala case.

“If you can think of why, with other, more experienced criminal lawyers available, including my recently hired associate, Attorney Shimane Smith, I would have made the choice to select you as co-counsel, for any reason other than the fact that you were married to, and living with, a board-certified, clinical neurologist, whose assistance would be valuable in preparation, please advise,” Burge wrote.

She also acknowledged that during the course of her research, she would ask Swanson to help her understand complex medical terms.

A visiting judge has twice ruled that Burge provided an adequate defense for Dovala, but her new lawyers have argued that the most recent of those rulings was based on Burge’s “now discredited testimony” in a 2010 deposition in which he misidentified Swanson and overstated the doctor’s role in the case.

Prosecutors, however, contend that Burge did the best he could for Dovala considering the evidence against her and have pointed out that Burge consulted an OB/GYN about the case.

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