Lorain County Prosecutor Dennis Will on Friday asked the Ohio Supreme Court to force county Common Pleas Judge James Burge off a three-judge panel that will hear the case of accused killer Vincent Jackson Jr.
Burge was one of two judges selected at random on Wednesday to serve on the panel with county Common Pleas Judge James Miraldi after Jackson waived his right to a jury trial and agreed to allow a panel to decide whether to accept a guilty plea and determine if he should be given a death sentence.
During that hearing, assistant county prosecutor Tony Cillo objected to Burge’s inclusion in the draw and to him serving on the panel because in January Burge removed himself from all cases in his courtroom that Cillo was assigned to.
Although Burge has said his decision to withdraw from all of Cillo’s cases didn’t mean that he wouldn’t serve on a three-judge panel, Will wrote Friday that the judges’ orders removing himself from Cillo’s cases never made mention of exceptions to that ruling.
“Because a reasonable and objective observer might harbor serious doubts about Judge Burge’s impartiality, Judge Burge should step aside or be removed,” Will wrote.
Cillo tried last year to convince the Supreme Court to bar Burge from handling any of the cases he’s involved in, but Chief Justice Maureen O’Connor largely rejected the request, ruling that nothing Cillo had put forward showed “that the judge would be unable to preside fairly over cases involving him.”
O’Connor did order Burge off the case of death row inmate Stanley Jalowiec, who had sought a new trial. The chief justice expressed concern that Burge had compromised himself in the case, based in part on his comments to the media. A visiting judge later rejected Jalowiec’s bid for a new trial.
Will wrote that one of the cases Burge fought so hard to remain on last year was the capital murder case of Albert Fine, who is accused of killing and dismembering his girlfriend. It’s possible, Will noted, that Fine could also end up in front of a three-judge panel.
Cillo handles all the capital cases in the county for Will’s office.
“It is inexplicable how or why Judge Burge felt it appropriate to recuse himself from presiding over that death penalty case, yet retain the possibility of serving as a member of a three-judge panel on the exact same case.” Will wrote.
Will also challenged an assertion Burge made earlier this week that he would only be deciding whether to accept Jackson’s guilty plea and then determining a punishment. Miraldi would run the hearings before the panel, Burge has said.
But Will wrote that decisions of law, such as how to handle objections, are to be decided by a majority of the panel, not simply the lead judge on the case.
“As such, although he argues otherwise, Judge Burge would indeed be in a position to be unfavorable (to prosecutors) if he chose to do so,” Will wrote.
Burge largely declined to comment on Will’s filing Friday, but he did say he intends to file a response.
Will’s court filing also touched briefly on a concern raised by Cillo earlier this week about whether Burge has a financial interest in the success of J. Anthony Rich, one of Jackson’s defense attorneys.
Rich’s offices are at 600 Broadway in Lorain, which is owned by Whiteacre North Ltd., a company run by Lorain attorney Michael Tully and Burge’s wife, Susan Burge. The judge has said he transferred his interest in Whiteacre North to his wife years ago and no longer has a financial stake in the building, where his law offices were before he took the bench in 2007.
The Jackson case, which had been scheduled to start earlier this week, is on hold until the Supreme Court issues a decision.
Jackson is accused of shooting Gas USA clerk Qiana Walton in the head with an AK-47 during a June 2008 robbery.