ELYRIA — The same visiting judge presiding over a special grand jury hearing evidence of possible criminal wrongdoing by Lorain County Common Pleas Judge James Burge will take over Burge’s criminal court docket Monday.
Burge has been barred by the Ohio Supreme Court from handling cases involving county Prosecutor Dennis Will’s office while the state’s high court reviews a request from Will to make the ban permanent.
Retired county Common Pleas Judge Edward Zaleski was brought in to handle Burge’s criminal docket Friday and had originally been under the impression he would do so until the Supreme Court reached a decision on Will’s affidavit of disqualification against Burge.
Will has accused Burge of being biased against his office, sexually harassing and intimidating prosecutors, seeking a county job for his wife and making racist comments.
Zaleski said he learned that retired Franklin County Common Pleas Judge Dale Crawford would be taking over after he completed work Friday, a move that surprised him given the role Crawford is playing in the criminal investigation into Burge.
“It seems like there might be a conflict there,” Zaleski said. “I don’t know, but it doesn’t seem right.”
Crawford was appointed in December to oversee the special grand jury and any case that results from the evidence presented to it.
Will requested that the Ohio Bureau of Criminal Investigation and Ohio Attorney General Mike DeWine’s office conduct an investigation into allegations of criminal misconduct by Burge based on the concerns of another sitting judge.
The Supreme Court’s Office of Disciplinary Counsel also is conducting a confidential inquiry into Burge’s behavior.
Burge, who has denied wrongdoing, said he has “every confidence” in Crawford running his courtroom on a temporary basis.
Will said he doesn’t really see a potential conflict at this point. He said judges routinely preside over grand juries and criminal cases.
Elyria defense attorney Kenneth Lieux said a possible conflict hadn’t occurred to him either, but he doesn’t think it’s an issue right now.
“I don’t know why it would be a problem,” he said. “Judges handles their docket and grand juries all the time. They’re different entities.”
Zaleski also said it seemed odd to him that the Supreme Court would appoint a judge who lives in Columbus because the state will have to pay either for Crawford to make the drive up to Elyria or for a hotel if he stays locally while hearing cases.
Zaleski said it doesn’t matter to him if he doesn’t continue running Burge’s criminal caseload, but it makes more sense to him to use a visiting judge who lives closer, such as in Cuyahoga County, to save money.
Lorain defense attorney Anthony Baker said the Supreme Court probably wanted to bring in someone from out of the county to handle Burge’s cases, but given his dual role, Crawford might not be the best choice.
“I understand the independent view, but at the same time is that the independent voice you want?” Baker said.
Baker, who is black, also said he doesn’t believe Burge is a racist, despite allegations that the judge has used racially charged language, including using the N-word and calling blacks “homeboys” and whites “crackers.”
Baker said he was speaking only for himself, but he felt in the instances when he’s heard Burge use language like that it was meant to “break down walls.”
Will also wrote in his court filing that Burge has said he judges cases involving black defendants and white victims more harshly, but Baker said that hasn’t been his experience with Burge or any other judge in Lorain County.
“If you polled the black people in the courtroom, they wouldn’t call him a racist,” he said.
Another local defense attorney, JD Tomlinson, took issue with how his interactions with Burge, whom he considers a mentor, were portrayed by Will in his affidavit.
Will wrote that Burge encouraged Tomlinson to hit on Assistant County Prosecutor Sherry Glass, but then warned him off because her husband, county Sheriff’s Deputy Dan Strohsack, carries a gun.
Tomlinson said that was an obvious joke not only because Burge knows of his respect for Glass, but also because he is friends with Strohsack, who was a few years behind him in high school.
The affidavit also recounted a December 2012 incident in which Tomlinson asked Burge to approach the bench with Assistant County Prosecutor Nick Hanek and Probation Officer John Machovina.
According to Will, Burge looked angrily at Tomlinson and cursed while demanding to know what was so important that they needed to come up to the bench.
“During the brief conversation that followed, Judge Burge shook his hand toward Attorney Tomlinson acting as if he was going to slap him in the face,” Will wrote.
Tomlinson said Burge wasn’t actually upset with him and wasn’t going to hit him.
He said the same was true of another incident in which Burge told Tomlinson he would break his septum if he didn’t spit out the gum he was chewing — something Tomlinson said he shouldn’t have been doing in a courtroom anyway.
Tomlinson said everyone, including his defendant, got the joke, but apparently the humor was lost on the prosecutor who was present.
“The thought that I would ever fear Judge Burge coming over that bench and even placing a finger on me is laughable,” he said.
Tomlinson said he never received a call from Will’s office asking for his version of events and he was concerned that Burge’s comments were being taken out of context and “grossly exaggerated.”
Will declined to comment on Tomlinson’s statements.
“We stand by what’s in the affidavit,” he said.