O’Connor, however, rejected Assistant County Prosecutor Tony Cillo’s request that Burge be barred from handling any case Cillo is involved in, including the cases of Albert Fine, who could get the death penalty if convicted of killing and dismembering his girlfriend, and Shannon Weber, a former Lorain County Jail nurse accused of twice trying to kill her son.
Cillo had argued that Burge has a bias against him that dates back to when Burge was still a defense attorney and the two lawyers regularly sparred.
Cillo also contends that Burge told Assistant County Prosecutor Nick Hanek, who had been assigned to Burge’s courtroom, that he was going to grant a new trial for Jalowiec.
Burge has repeatedly denied Cillo’s assertion and insisted that he hadn’t formed an opinion on Jalowiec’s request for a new trial based on alleged police and prosecutorial misconduct because he hadn’t seen the evidence.
O’Connor wrote that although the conflicting stories of what Burge told Hanek wouldn’t normally have been enough to remove the judge from the case, the appearance of a problem was compounded by Burge’s comments to the media.
“I don’t believe an assistant told him that and if he did, it would be false,” Burge told The Chronicle-Telegram for an April 5 story in a quote that was referenced in O’Connor’s decision.
“The language used by Judge Burge in his media statements could cause the reasonable and objective observer to conclude that the judge has become Cillo’s adversary, thereby creating a possibly intolerable atmosphere between the judge and the prosecutor in the courtroom,” O’Connor wrote.
O’Connor also wrote that Burge, in his role as administrative judge, failed to address Cillo’s complaint that he had kept the Jalowiec case for himself after county Common Pleas Judge Christopher Rothgery removed himself from the case. Cillo had argued that such cases are typically reassigned by a court employee rather than the judge himself.
O’Connor wrote that a new judge will now be assigned to hear Jalowiec’s argument that he’s entitled to a new trial, a hearing that had been slated to start earlier this month.
Despite her concerns about Burge in the Jalowiec case, O’Connor wrote that she couldn’t justify issuing a blanket order removing Burge from all of Cillo’s cases in part because Cillo argued that the judge has attacked his honesty.
Burge told the Ohio Parole Board in January that the Supreme Court’s Office of Disciplinary Counsel was investigating his handling of the controversial Head Start child molestation case, including why he hadn’t ordered former bus driver Nancy Smith back to prison.
Burge acquitted Smith and codefendant Joseph Allen in 2009 after reviewing the evidence and determining that their convictions on sex charges in the 1990s were improper. The Supreme Court ruled in 2011 that Burge overstepped his authority when he acquitted Smith.
The judge has said he should have ordered the pair back to prison then but Cillo and Jack Bradley, one of Smith’s attorneys, asked him to hold off until he heard from them. Cillo denied having said that in communications with Disciplinary Counsel investigators, Burge told the Parole Board.
The Parole Board has yet to issue recommendation to Gov. John Kasich on whether to grant clemency to Smith, something Burge has supported.
O’Connor wrote that she has no knowledge of any Disciplinary Counsel inquiry, which are considered confidential, but that Cillo was speculating about the investigation and whether he might be called as a witness against Burge at a later date.
“Judges are presumed to be capable of putting aside old disagreements with former opposing counsel and attorneys appearing before them, and nothing in Cillo’s affidavits would lead a reasonable person to conclude that Judge Burge has developed such a strong personal bias against Cillo — based on their history — that the judge would be unable to preside fairly over cases involving him,” O’Connor wrote.
She also noted that Cillo’s “speculative allegations” weren’t enough to ban Burge from all involvement in death penalty and other serious criminal cases, which Cillo typically handles.
County Prosecutor Dennis Will said while his office clearly thought there were grounds to challenge Burge’s involvement in Cillo’s cases, they had little choice but to accept O’Connor’s ruling.
“We will accept it and move on,” he said.
Burge largely declined to comment on the decision Tuesday.
“It’s time to move on,” he said.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.