ELYRIA — Accused killer Vincent Jackson Jr. waived a jury trial Wednesday with the intention of pleading guilty to aggravated murder and other charges stemming from the 2008 slaying of Gas USA clerk Qiana Walton, but the hearing never made it past the selection of a three-judge panel to hear the case.
Lorain County Probate Judge James Walther, the county’s presiding judge, allowed the lawyers in the case to draw cards to determine which of the county’s other judges would serve on the panel alongside Common Pleas Judge James Miraldi, who has been handing Jackson’s case.
The second card drawn was for county Common Pleas Judge James Burge, who earlier this year withdrew from any cases handled by Assistant County Prosecutor Tony Cillo, the lead prosecutor on the Jackson case. The other judge assigned to the panel was Common Pleas Judge Mark Betleski.
Cillo immediately objected to Burge sitting on the panel.
Walther left the courtroom to consult with Burge and reported back that Burge didn’t see a conflict in serving on the panel.
Cillo said he planned to ask the Ohio Supreme Court to intervene and force Burge off the panel, putting the Jackson case in a holding pattern until the dispute over Burge’s involvement is resolved.
Cillo v. Burge
Burge said later that just because he removed himself from Cillo’s cases doesn’t mean he can’t serve on three-judge panels in death penalty cases.
“I said if I was selected to serve on a panel or was asked by a judge, I would do it,” he said.
Prosecutors have tried with limited success to remove Burge from cases in the past, most recently in the case of death row inmate Stanley Jalowiec, who had sought a new trial because of what his attorneys claimed was police and prosecutorial misconduct. Ohio Supreme Court Justice Maureen O’Connor removed Burge from that case last year and a visiting judge later rejected Jalowiec’s request for a new trial.
But O’Connor also refused last year to take Burge off other cases Cillo was involved in, including the cases of Albert Fine, who faces a possible death sentence if convicted of killing and dismembering his girlfriend, and Shannon Weber, who stands accused of twice trying to kill her son.
Although Cillo argued that Burge had a bias against him, based in part on their adversarial relationship when Burge was still a defense attorney, O’Connor disagreed. She wrote that judges are presumed to be able to put aside old conflicts and that there wasn’t enough evidence to show Burge would be unfair to Cillo.
But in January, Burge removed himself from Cillo’s cases, citing what he saw as a waste of taxpayer resources by county Prosecutor Dennis Will’s office on efforts to get him kicked off cases. Will called that accusation “ridiculous” and said he had only sought to have Burge removed when there was a clear conflict.
Burge said Wednesday that he wouldn’t be in a position to be unfavorable to Cillo because it would be Miraldi, not him, running the trial.
“I’m just a trier of fact here,” Burge said. “Jim Miraldi makes the rulings.”
Cillo said there might be another conflict if Burge serves on the panel because one of Jackson’s defense attorneys is J. Anthony Rich, whose law offices are at 600 Broadway in Lorain.
Before taking the bench in 2007, Burge’s offices were in the same building, which he has previously said he purchased in the 1980s along with his wife, Susan Burge, and attorney Michael Tully.
When he became a judge, Burge has said, he and his partners in Whiteacre North Ltd., which technically owns the building, agreed to sell 600 Broadway to attorney Shimane Smith. Under the terms of that agreement, Smith was supposed to pay off the roughly $250,000 remaining on the mortgage in addition to another $70,000. Smith, who has since moved out of state, didn’t practice in front of Burge because of the deal.
But by 2011, Burge has said it had become apparent that Smith wasn’t going to make good on the deal and he transferred his ownership stake in Whiteacre North to his wife, who is also an attorney, so she and Tully could file a lawsuit.
Burge has previously said he took that step so that he wouldn’t have a financial interest in the success of the lawyers who were renting space in the building. Those attorneys continue to practice in front of him.
In January 2012, Susan Burge and Tully sued Smith, who court records show didn’t contest a court order requiring him to make good on the $70,000 payment.
Rich called Cillo bringing up his office’s location “crap” during the hearing and accused Cillo of angling to get a judge who might view the death penalty more favorably. Burge has never handed down a death sentence in any capital case he’s been involved with as a judge.
Rich also said that prosecutors haven’t made an issue of where his office is located before when he’s had cases in Burge’s courtroom. “I’ve had cases there and they’ve never objected before,” Rich said after the hearing.
But Cillo said he’s made several unsuccessful attempts to find out who Rich is paying rent to.
After the hearing, Rich said he makes out his rent checks to Whiteacre North, which he said is owned by Tully and a “co-owner,” whom he declined to identify.
Burge said he’s aware that there are concerns about whether he has an ownership interest in 600 Broadway, including a complaint that was filed against him last year with the Ohio Supreme Court’s Office of Disciplinary Counsel.
Such complaints are considered confidential and Burge has said he replied to the Disciplinary Counsel inquiry, but never heard whether the matter was closed or if it remains open.
Burge also has said that Court Administrator Tim Lubbe looked into the issue several years ago and concluded the judge wasn’t violating any ethical rules by allowing lawyers with offices in the building to practice in front of him. He said Wednesday his former personal lawyer, Robert Ellis, gave him a legal opinion stating much the same thing.
The complaint over his ownership of the building isn’t the only issue that Disciplinary Counsel is apparently investigating Burge for, although no disciplinary action has ever been taken against the judge.
Burge acknowledged in January 2012 that Disciplinary Counsel was looking into his handling of a controversial Head Start child molestation case. Burge acquitted Nancy Smith and Joseph Allen after reopening their case because of a technicality, but was later overturned when prosecutors appealed.
Smith, who isn’t related to Shimane Smith, later cut a deal that saw her avoid a return to prison, while Allen is again incarcerated and recently lost his efforts to win parole.
Based on Burge’s public comments, that Disciplinary Counsel inquiry appears to focus on why the judge didn’t immediately order Smith and Allen back to prison after his decision to acquit them was overturned.
Burge previously said he suspects Will’s office is behind the Disciplinary Counsel inquiries, although Cillo has denied that allegation.
Taking the case to a three-judge panel was not the outcome Rich and Jackson’s other attorney, Dan Wightman, had hoped for when they raised the issue of a plea in the case during a hearing that began Tuesday and spilled into Wednesday.
After failing to reach a deal with prosecutors that would allow Jackson to receive a life prison term in exchange for a guilty plea, Wightman and Rich asked Miraldi to allow Jackson to plead guilty in the case and allow a jury to decide if he should be executed.
But prosecutors argued that wasn’t allowed under Ohio law and Rich and Wightman shifted gears, asking that Miraldi accept the plea and then dismiss the capital specification on the aggravated murder charge “in the interests of justice.” Prosecutors also said that wasn’t permissible and Miraldi agreed.
“I don’t believe I have the legal authority to accept a guilty plea by myself,” the judge said Wednesday.
That prompted Jackson to agree to a three-judge panel.
Assistant County Prosecutor Laura Dezort said prosecutors have no intention of letting Jackson plead guilty in a deal that spares him the possibility of a death sentence.
“The state has not and will not remove the death specs in this case,” Dezort said.
Jackson is accused of gunning down Walton after she cooperated with him during a gunpoint robbery that netted him about $12,000 before he shot her once in the head with an AK-47.
At the time of the robbery, which was captured on the gas station’s security cameras, Jackson had been free for less than a month after serving a lengthy prison term in Illinois for shooting a man in the head there, according to prosecutors. The victim in that shooting survived.