ELYRIA — Lorain County Common Pleas Judge James Burge insisted Wednesday that he can serve fairly on a three-judge panel assigned to consider a plea and sentence in the case of accused killer Vincent Jackson Jr.
Burge’s defense of his impartiality came in a written response to a request from county Prosecutor Dennis Will to remove the judge from the panel because Burge has previously taken himself off all cases being handled by Assistant County Prosecutor Tony Cillo.
As the chief criminal prosecutor in Will’s office, Cillo deals with all capital cases in the county, including Jackson’s case.
Burge wrote that he “has no bias against Attorney Cillo as a participant in the prosecution of Vincent Jackson specifically; and, that (my) presence on the three-judge panel selected to try the facts of the matter would not result in prejudice to either party, or in any delay in trial.”
Jackson, who is accused of gunning down Gas USA clerk Qiana Walton during a June 2008 robbery, had been slated to stand trial in front of a jury beginning last week, but just before jury selection was to begin he asked to have his case heard by a three-judge panel. Burge and county Common Pleas Judge Mark Betleski were randomly selected to serve on the panel alongside Common Pleas Judge James Miraldi, who has been handling the Jackson case.
Cillo immediately objected to Burge’s involvement and the judge refused to take himself off the case. That prompted Will to ask the Ohio Supreme Court to intervene and force Burge off the panel.
Burge successfully fought off an attempt by prosecutors last year to bar him from being involved in any of Cillo’s cases. Chief Justice Maureen O’Connor wrote that Cillo failed to provide enough evidence that Burge would be unfair to him in most cases.
But she removed him from the case of convicted killer Stanley Jalowiec, who had been seeking a new trial, after concluding that Burge may have compromised his impartiality in that case. A visiting judge later rejected Jalowiec’s bid for a new trial.
The matter was widely considered settled until January, when Burge abruptly withdrew from all of the cases Cillo was handling in his courtroom. At the time, Burge said he was removing himself because of the resources he believed Will’s office was expending on trying to keep him off Cillo’s cases.
He repeated that explanation in his court filing Wednesday, but added that he thought removing himself from Cillo’s cases would speed up the resolution of the cases of Shannon Weber, who is accused of twice trying to kill her son; Albert Fine, who is charged with killing and dismembering his girlfriend; and Luis Lopez, who is accused of killing his girlfriend’s 2-year-old daughter.
“Upon Affiant’s belief that his presiding over three criminal cases assigned to Attorney Cillo may be the underlying cause for the delay in their resolution, in that these cases had been pending much longer than guidelines would permit, not by weeks or months, but by years, notwithstanding the fact that these cases are simple and the legal issues involved are not complex,” Burge wrote.
Both the Weber and Lopez cases date to 2011, although prosecutors have said Cillo wasn’t involved in the Lopez case. Fine’s case was filed in 2012.
Burge also wrote Wednesday that he doesn’t have a conflict with J. Anthony Rich, one of Jackson’s defense attorneys. Rich’s law offices are located at 600 Broadway in Lorain, where Burge kept his offices when he was still a defense attorney before taking the bench.
The judge has acknowledged that his connection to the property is one of several issues involving him into which the Ohio Supreme Court’s Disciplinary Counsel is conducting a confidential inquiry.
Burge wrote Wednesday that he no longer has an interest in the building or the company who owns it, Whiteacre North Ltd. That company is owned by attorney Michael Tully and Burge’s wife, Susan Burge, who is also a lawyer.
Judge Burge wrote he transferred his ownership interest in the company and building to his wife years ago.
He also wrote that prosecutors waived a conflict during a plea hearing immediately after he became a judge in 2007.
Rich made a similar argument in his own court filing in the case on Wednesday, writing that prosecutors haven’t raised concerns about his offices in previous cases he or other attorneys in the building have had in front of Burge.
“The Lorain County Prosecutor’s Office in an ill-thought out moment during heated advocacy selectively sought to make an issue out of something that has been a non-issue since January 5, 2007, because they were upset that Judge Burge was drawn for a three-judge panel,” Rich wrote.
But Will said Wednesday that his office has never waived the issue of a conflict between Burge and the attorneys in his former building except during a single hearing involving attorney Paul Griffin in 2007.
“There’s no blanket waiver there,” he said.
Will also said that it is the responsibility of the lawyers who have a conflict to bring it to the attention of other parties.
“It’s not my responsibility to raise it if there’s a conflict,” he said.