ELYRIA — A Lorain attorney said prosecutors warned him Friday that he was proceeding in a hearing before Lorain County Common Pleas Judge James Burge “at my own peril.”
Attorney Zachary Simonoff said he rents office space at 600 Broadway in Lorain, a building that has come under scrutiny in recent weeks as prosecutors attempt to force Burge off a three-judge panel that will hear the case of accused killer Vincent Jackson Jr.
County Prosecutor Dennis Will contends that Burge has a financial interest in the building, where the judge’s law offices were when he was a private defense attorney. J. Anthony Rich, one of Jackson’s lawyers, also has offices in the building.
Burge has said he relinquished his stake in Whiteacre North Ltd., which owns the building, to his wife, Susan Burge. Lorain attorney Michael Tully also has an ownership interest in the company.
Simonoff said Assistant County Prosecutor Jennifer Riedthaler brought up the alleged conflict Friday, saying that he was aware of the potential conflict and had a duty to disclose it.
“I take a statement that I proceed at my own peril very seriously,” Simonoff said. “I believe that’s a threat. I believe there’s no other way you can take it but as a threat.”
Simonoff said the hearing had nothing to do with the Jackson case, and he doesn’t believe that he has any conflict. He added that Burge didn’t see a conflict either, and the hearing continued.
Will said if Simonoff takes issue with something said in court, he should take any action he deems appropriate. Will also said he doesn’t have a definite answer on whether Burge has a stake in Whiteacre North or the building at the center of the dispute.
He said while the issue remains in doubt, he doesn’t intend to waive any potential conflicts, which he argued attorneys practicing in front of Burge or the judge himself have a duty to disclose.
Simonoff said Friday was the first time prosecutors have raised the issue of a possible conflict with Burge with him. Attorney Anthony Baker, who also has offices in the building and does work in Burge’s courtroom, said prosecutors have not discussed the issue with him.
Will wrote in documents filed Friday with the Ohio Supreme Court that his office has discussed the concerns with tenants at 600 Broadway in the past, including Rich. He also wrote that the issue has been discussed with Chris Cook, who handles disciplinary issues for the Lorain County Bar Association.
Cook confirmed that he had spoken to prosecutors about the issue, but said that local bar associations haven’t handled complaints against judges since a rule change a few years ago.
He declined to discuss specifics because such matters are confidential, but said complaints against judges are now supposed to be forwarded to the Ohio State Bar Association or the Ohio Supreme Court’s Office of Disciplinary Counsel.
Burge previously has said the issue of whether he has a financial interest in Whiteacre North is one of several issues Disciplinary Counsel is investigating.
Simonoff also said that during Friday’s hearing, Riedthaler said she was making the statement at the direction of her supervisor, Assistant County Prosecutor Tony Cillo, who is also the lead prosecutor on the Jackson case.
Last year, Ohio Supreme Court Justice Maureen O’Connor largely rejected a request from Cillo to bar Burge from any involvement in cases he is handling because he believed Burge was biased against him. O’Connor determined there wasn’t enough evidence to justify such a wide-ranging order, although she did remove Burge from the case of death row inmate Stanley Jalowiec, who was seeking a new trial.
But in January, Burge took himself off all of Cillo’s cases, citing what he described as a waste of prosecutorial resources to get him kicked off cases, an accusation Will has denied. Burge later said he believed those cases were being slowed down because both he and Cillo were involved.
When Burge was selected by random draw to serve on the three-judge panel, Cillo objected, saying the judge had already removed himself from all of his cases and couldn’t be on the panel. Burge countered that he was available to serve and wouldn’t step down, which prompted Will’s office to ask the Ohio Supreme Court to intervene and remove Burge.
Will wrote that his office considers the building issue secondary to the conflict between Burge and Cillo.
Will also wrote that while his office has found plenty of documentation indicating Burge’s involvement with the building, including mortgages and other documents from the 1990s, he’s never seen anything that shows Burge ever stopped being a member of Whiteacre North or that he’d transferred his ownership interest to his wife.
“Without refuting documentation, there is an appearance of impropriety, as the public could reasonably believe that Judge Burge may still have an ownership interest in the building at 600 Broadway, where Attorney Rich, one of defense counsel in Jackson, is a tenant and pays rent,” Will wrote.
Burge declined to comment, but sent a letter to the Ohio Supreme Court indicating that he doesn’t plan to respond to the documents Will filed Friday.