ELYRIA — Lorain County Domestic Relations Judge Lisa Swenski on Tuesday insisted that a request by defense attorneys seeking to have her removed from the three-judge panel assigned to hear the capital murder case of Clarence Adams III is inaccurate.
Kreig Brusnahan, one of Adams’ lawyers, asked Ohio Supreme Court Justice Maureen O’Connor to force Swenski off the panel because of a comment allegedly made by Swenski’s husband, Lorain attorney Zachary Simonoff.
“You don’t need to worry about my wife. She’s got no problem killing someone,” Simonoff is quoted as telling Assistant County Prosecutor Laura Dezort in the affidavit of disqualification that Brusnahan filed Monday, the day before Adams’ trial was scheduled to begin.
Dezort has acknowledged hearing Simonoff say something to that effect, but couldn’t recall exactly what was said, Brusnahan wrote.
Swenski wrote in a response filed Tuesday that the comment being attributed to Simonoff isn’t what he actually said and didn’t provide the context of the conversation.
She wrote that the conversation between Simonoff and Dezort took place in a conference room where numerous attorneys, including Adams’ other lawyer, Kenneth Ortner, were meeting to discuss cases.
Swenski wrote that Simonoff told her that there was a general conversation about the death penalty and a mention of the capital murder trial of Vincent Jackson Jr., who was sentenced to life in prison earlier this month for the June 2008 slaying of a clerk at Gas USA.
“Simonoff told Dezort that he did not believe the Vincent Jackson case warranted a cap spec, that he Simonoff (sic) was actually against the death penalty and that he had a moral problem with the state executing someone, but that ‘my wife does not have a problem with the State executing someone,’” Swenski wrote.
When Simonoff informed her about the conversation that evening, Swenski wrote, she told him that the “comment could be misinterpreted and certainly was not complete in that I believe that I can impose a death sentence if one is warranted and vote against a death sentence if it did not meet the lawful requirements.”
She also wrote that the conversation took place in either February or March, not earlier this month as Ortner contends.
Brusnahan on Tuesday called Simonoff’s description of the conversation “self-serving” and said he remains concerned about whether Adams can receive a fair trial in front of Swenski based on what he believes Simonoff told Dezort.
If he hadn’t brought up the issue, Brusnahan said, it could have become grounds for an appeal if Adams is convicted and sentenced to death.
“That’s a pretty serious statement and that’s something that needed to be brought before the chief justice,” he said.
Swenski wrote that she can be fair to Adams, who is accused along with Austin Diaz in the April 2012 beating death of Lamar “Mark” Taylor in Lorain.
“I am not prejudiced toward or against the Defendant, I know almost nothing of the case facts, I do not know the defendant and I have not prejudged either the defendant’s innocence or (guilt), nor any potential sentence,” the judge wrote.
The panel was originally supposed to be comprised of county Common Pleas judges John Miraldi, James Miraldi and Christopher Rothgery, but Judge James Miraldi withdrew from the panel because of a scheduling conflict. Swenski, who is certified by the Supreme Court to handle death penalty cases, was next on the randomly selected list to serve as his replacement.
Adams has complained about the selection process used by county Probate Judge James Walther, who serves as the county’s presiding judge, to pick the members of the panel. Adams had wanted the panel to be decided by a roll of the dice, but Walther instead used a deck of cards, the same process he used when selecting a panel to hear the Jackson case.
Ortner and Brusnahan raised that issue again in a motion filed with Judge John Miraldi on Monday asking for a new draw that included both Judge James Miraldi and Judge James Burge, who wasn’t included in the original pool of judges.
Burge removed himself from involvement in cases being handled by Assistant County Prosecutor Tony Cillo, who is working on the Adams case, earlier this year and O’Connor ruled he couldn’t serve on the Jackson panel because of that self-imposed ruling. Burge lifted his order last week, paving the way for him to potentially serve on death penalty cases in the future.
It is unclear how long it will take for O’Connor to decide if Swenski can remain on the Adams panel, but until then Judge John Miraldi has delayed the start of the trial.