ELYRIA — The Ohio 9th District Court of Appeals has ruled that Lorain County Common Pleas Judge James Burge improperly acquitted a Lorain man of a rape charge during a trial last year.
The man, Samuel Nieves, was convicted of gross sexual imposition during the trial, which Burge heard himself instead of a jury, and Burge sentenced him to 17 months in prison and ordered Nieves to register as a sex offender. Burge granted Nieves early release in March, according to court records.
Burge determined during the bench trial that Nieves’ hadn’t penetrated the victim far enough when he sexually assaulted her, but the appeals court said that Burge applied the wrong standard and shouldn’t have acquitted Nieves.
The appeals court judges also said that even though they had concluded that Burge was wrong, the acquittal would stand. Once someone has been acquitted of a crime, he can’t face trial for a second time under the U.S. Constitution, which forbids double jeopardy.
Typically, acquittals aren’t appealed, but county Prosecutor Dennis Will said his office asked the appeals court for permission to do so because they wanted to make sure that the law and legal precedent were being followed.
“It doesn’t change what we can do in Nieves, but in the future they’ve spelled out the definition of rape,” Will said.
Burge declined to comment Monday on the decision, but the appeals court opinion quoted him describing his belief of just how far a rapist has to go in order to be guilty of the crime. Burge also said during the trial that he was certain of his medical knowledge despite what other judges think.
“So to that extent, I don’t care what anybody says, I’m right,” the opinion quoted Burge as saying. “In fact, the more I talk, the righter I get.”
The appeals court wrote that it wanted to make sure its legal findings were known to Burge and to put other judges in the 9th District on notice of what standard of rape they expected them to use.
“In the face of such an expressed disregard for the precedent of this higher court, such action is not only capable of repetition, but is highly likely to be repeated by this particular trial judge,” the decision said.
Burge’s disagreement with what constitutes rape can’t be used as proof there wasn’t enough evidence to convict Nieves, the appeals court wrote.