Ohio Supreme Court Chief Justice Maureen O’Connor wrote that because Burge in January removed himself from cases being handled by Assistant County Prosecutor Tony Cillo, the lead prosecutor on the Jackson case, he can’t sit on the panel.
“Judge Burge has failed to sufficiently explain how the underlying matter is distinguishable from other cases in which Cillo appears as counsel,” O’Connor wrote.
Burge has said he removed himself from Cillo’s cases because he believes prosecutors were wasting resources trying to get him kicked off Cillo’s cases. He later said that he thought some cases were being slowed down because both he and Cillo were involved. County Prosecutor Dennis Will has disputed both of those explanations.
“Once Judge Burge had recused himself from all of Cillo’s cases, he could not then pick and choose, without reasonable justification, which cases to hear involving Cillo,” O’Connor wrote, although she added that Burge could withdraw his order removing himself from Cillo’s cases if the circumstances that led him to do so in the first place changed.
Prosecutors also tried to remove Burge from Cillo’s case last year, but O’Connor largely rejected their arguments then, saying that there wasn’t enough evidence that Burge was biased against Cillo. She did, however, take Burge off the case of death row inmate Stanley Jalowiec, who had been seeking a new trial.
Jackson’s trial was supposed to begin last month, but just before the lawyers were supposed to start picking a jury, Jackson agreed to take the case to a three-judge panel.
His lawyers, J. Anthony Rich and Dan Wightman, have said he intended to plead guilty to aggravated murder and other charges in connection with the June 2008 shooting death of Gas USA clerk Qiana Walton during a robbery.
The three-judge panel would be responsible for deciding whether to accept Jackson’s plea and if the death penalty should be imposed.
But after Burge was selected by random draw to serve on the panel, alongside Judges Mark Betleski and Judge James Miraldi, who has been overseeing the case, prosecutors objected. When Burge refused to remove himself, Will took the matter to the Supreme Court.
Burge has said he doesn’t have a bias against Cillo and argued that he would only be serving as a trier of fact and thus not be in a position to be unfair to Cillo. Both Will and O’Connor disagreed with that assessment.
“Contrary to Judge Burge’s opinion, one judge’s role on a panel in a capital case is no less significant than a judge’s role in any other case,” O’Connor wrote.
Burge said he will abide by O’Connor’s decision.
“I’m satisfied with what the chief justice did,” he said.
Probate Judge James Walther, the county’s presiding judge, on Friday named Common Pleas Judge John Miraldi, who is the cousin of Judge James Miraldi, to replace Burge on the panel.
But Wightman said given the changes to the panel, he and Rich will need to discuss with Jackson whether they might now want to take the case to a jury rather than a panel of judges.
“There’s certainly a possibility we’re going to reconsider the jury waiver under these circumstances,” he said.
Will said he was pleased by O’Connor’s ruling and is ready for the case to resume.
“We were comfortable in our arguments and I’m glad the case is going to move forward,” he said.
But Rich said he and Wightman still need to examine their legal options and will need time to do that. He said a meeting on the case is scheduled for Monday, but he doesn’t want to pick a new trial date that begins immediately.
“We’re not going to be forced by anybody to make a hasty decision by Monday,” he said.
Friday’s decision didn’t address a second issue that cropped up as prosecutors fought to remove Burge from the Jackson case. They had argued that Burge has a conflict because Rich rents office space at 600 Broadway in Lorain.
Burge’s offices were there before he took the bench and after a failed effort to sell the building when he became a judge in 2007, he relinquished his ownership stake to his wife, Susan Burge, in 2011. But prosecutors have questioned whether that is enough distance to prevent Burge from having a financial interest.
They raised the question again last week when attorney Zachary Simonoff, who also keeps an office at 600 Broadway, appeared before Burge in an unrelated case. Simonoff, Rich and others have argued that there is nothing improper about attorneys with offices in the building appearing before Burge.
Will said he believes it’s the responsibility of the defense attorneys to deal with the conflict, something Rich said he disagrees with.
Rich said while he doesn’t see a conflict, prosecutors have effectively waived it because they never brought the issue up before last month. He had hoped O’Connor would have settled the matter in her decision.
“Now that issue is stilling hanging out there, but it’s not going to change the way I practice law in court or in front of Judge Burge,” he said.
The Supreme Court’s Office of Disciplinary Counsel is conducting an investigation into Burge’s ownership of the building.