Lorain County Domestic Relations Judge Lisa Swenski can remain on a three-judge panel that will hear the capital murder trial of Clarence Adams III, Ohio Supreme Court Chief Justice Maureen O’Connor ruled Wednesday.
“On this record (defense attorney Kreig) Brusnahan’s unsubstantiated allegations — especially in the face of the conflicting facts presented in the judge’s response — are insufficient to overcome the presumption that Judge Swenski is fair and impartial,” O’Connor wrote.
The trial, originally scheduled to start Tuesday, will begin today, county Common Pleas Judge John Miraldi said. Miraldi and Judge Christopher Rothgery are the other two members of the panel.
Lawyers for Adams had sought to have Swenski removed from the panel because of a comment that her husband, Lorain attorney Zachary Simonoff, allegedly made earlier this year to Assistant County Prosecutor Laura Dezort.
In his affidavit of disqualification, Brusnahan wrote that Adams’ other attorney, Kenneth Ortner, overheard Simonoff tell Dezort, “You don’t need to worry about my wife. She’s got no problem killing someone.”
Although Ortner claimed to have heard the comment earlier this month, Swenski responded that the conversation between Simonoff and Dezort actually took place in late February or March. She also wrote that it was taken out of context.
In her response, Swenski wrote that Simonoff told her that there was a conversation among several lawyers regarding the death penalty and the capital murder case of Vincent Jackson Jr., who was sentenced to life in prison last month.
“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.
The judge wrote that the comment didn’t capture her full view of the death penalty. She wrote that she would be able to hand down or reject a death sentence depending on the evidence presented in a case.
O’Connor wrote that there were several problems with the effort to force Swenski off the panel, including the time of the request. Affidavits of disqualification are supposed to be filed seven days before a hearing, and Brusnahan didn’t file his until the day before the trial was scheduled to begin.
She also wrote that Brusnahan didn’t do enough to substantiate the allegations he was making. O’Connor noted that although Ortner overheard the conversation, he wasn’t the one who filed the request to remove Swenski from the panel.
“As a result, there was no sworn statements in the record from any individual with personal knowledge of the allegations — that is, someone who actually overheard or participated in the discussed when the alleged prejudicial comment was made,” O’Connor wrote.
Brusnahan said Wednesday he was disappointed by the ruling, and that it took so long to file because he had sought independent witnesses to corroborate what Ortner heard.
He also said the filing was nothing personal, but given the nature of the case and possibility that the issue could come up on appeal, he felt he had to seek Swenski’s removal.
“This is a death penalty case. Mistakes cannot afford to be made,” Brusnahan said. “A man’s life is at stake and if there’s any suggestion of bias, it should be resolved in favor of the accused, not a judge.”
Also Wednesday, Miraldi rejected a request from Brusnahan and Ortner asking for a new panel to be selected.
Among the issues they raised was a complaint from Adams that the county’s presiding judge, Probate Judge James Walther, drew cards to select the members of the panel. Adams, who is accused in the April 2012 beating death of Lamar “Mark” Taylor, had requested that the panel be selected by a roll of the dice.
Swenski did not respond to a request for comment and county Prosecutor Dennis Will declined to discuss the matter Wednesday.