December 18, 2014

Elyria
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Comment from judge’s husband throws death penalty panel into turmoil

Judge Lisa Swenski

Judge Lisa Swenski

ELYRIA — Lawyers for accused killer Clarence Adams III want Lorain County Domestic Relations Judge Lisa Swenski removed from a three-judge panel set to begin Adams’ capital murder trial today because of comments Swenski’s husband allegedly made to a prosecutor.

“You don’t need to worry about my wife. She’s got no problem killing someone,” Lorain attorney Zachary Simonoff is quoted as telling Assistant County Prosecutor Laura Dezort in an affidavit of disqualification filed by defense attorney Kreig Brusnahan.

The comment was overheard earlier this month by Kenneth Ortner, Adams’ other attorney, Brusnahan wrote in the affidavit filed Monday with the Ohio Supreme Court.

He wrote that Ortner didn’t bring up the comment until after Swenski was named to the panel during April 15 hearing in which two judges were randomly selected to serve on the panel with Common Pleas Judge John Miraldi, the presiding judge in Adams’ case.

The original two judges assigned to the panel were James Miraldi and Christopher Rothgery, but James Miraldi had a time conflict and Swenski was next in line to replace him.

Brusnahan wrote that he tried to confirm what Ortner heard by trying to find others who had overheard the comment and when that didn’t work, he approached Dezort.

“Prosecutor Dezort acknowledged to the Affiant that Attorney Simonoff did, in fact, make the same or a very similar comment, although being otherwise occupied at the time, she was not able to provide an exact quote,” Brusnahan wrote.

He also wrote that Simonoff’s comment gives him reason to believe Swenski “is prejudiced in this matter against the defendant, in that she may be predisposed to impose the death penalty.”

Swenski, who has until noon today to provide a written response to Chief Justice Maureen O’Connor, declined to comment Monday.

A letter to Swenski from Erick Gale, the Supreme Court’s master commissioner, informed her that she should not make any rulings in the case until O’Connor has made a decision in the matter.

County Prosecutor Dennis Will said he doesn’t think Simonoff’s comments to Dezort are enough to justify removing Swenski from the panel.

“Anybody can say anything,” he said.

Will said it’s not uncommon for people to attribute statements or opinions to judges, but that doesn’t mean they’re true or that a judge should be removed because of something someone else said.

“I could spend 24 hours a day doing nothing but trying to remove judges,” he said.

Will also said that Adams’ lawyers want a new draw of judges, one that would include judges James Miraldi and James Burge.

Burge wasn’t included in the previous draw because of a January order he issued withdrawing from all cases being handled by Assistant County Prosecutor Tony Cillo, who is working on Adams’ case. Burge lifted that order last week.

Brusnahan said he had no choice but to take the issue of Simonoff’s comments to the Supreme Court because of the serious nature of the case. If he hadn’t done so, he said, it could have created grounds for an appeal in the future.

“We’ve got a client who’s facing the possibility of death, and in a situation like that, we have to raise every conceivable issue,” Brusnahan said.

Adams and Austin Diaz, who is still awaiting trial, are accused in the April 8, 2012, beating death of Lamar “Mark” Taylor in Lorain.

Will said another issue is the timing of the filing with the Supreme Court. Affidavits of disqualification are supposed to be filed seven days before a court hearing, not on the eve of trial, although the law does allow for exceptions.

Brusnahan wrote in his affidavit that he couldn’t have filed his request any earlier because he was trying to confirm that Simonoff made the comment and didn’t have a meeting with Judge John Miraldi on the issue until Monday.

This is the second death penalty case this year to face delays because of efforts to remove a member of a three-judge panel. Prosecutors successfully convinced O’Connor to oust Burge from the case of Vincent Jackson Jr. because of his order removing himself from Cillo’s cases. Jackson was spared a death sentence by the panel that heard his case and will spend the rest of his life in prison.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.