ELYRIA — Convicted killer Melissa Dovala will get another day in court to argue that her defense lawyer, now Lorain County Common Pleas Judge James Burge, failed to adequately prepare for her 2005 trial.
The 9th District Court of Appeals ruled Monday that Visiting Judge Thomas Pokorny didn’t properly consider the evidence about whether Burge had consulted with a medical expert on what caused the injuries that killed 5-month-old Riley Smath in February 2004.
Barry Wilford, one of Dovala’s attorneys, said he was pleased with the decision, which will likely mean additional hearings on how Burge prepared for the trial.
“There’s still plenty to fight for here,” said Wilford, who has accused Burge of being untruthful in his explanation.
During a 2010 deposition, Burge testified that he had consulted with a neurologist named Tom Watson before Dovala’s trial, although the judge later admitted he meant Dr. Thomas Swanson, who was married at the time to attorney Laura Perkovic, who assisted Burge with the Dovala case.
Both Swanson and Perkovic have said that Burge never met with Swanson to discuss the results of Riley’s autopsy. The former couple did say they had informally discussed the case, although they disagreed over whether Swanson ever looked at the paperwork.
Burge said that although he may not have talked to Swanson directly, he did discuss Riley’s death with Perkovic and she told him Swanson had concluded Riley’s death was “cold-blooded murder.” Perkovic has denied using that phrase.
During the trial, prosecutors told jurors that Riley was killed by a blow to the head while Dovala was baby-sitting the infant in her Amherst home. Burge argued that Riley died as a result of his growing brain pushing against his slow-growing skull.
Pokorny ruled last year that there wasn’t enough evidence to show that Burge had been ineffective or that Burge tried to deliberately misrepresent the facts during his deposition.
However, the appeals court concluded that even if there was no proof a fraud had been committed upon the court, the questions raised about Burge’s efforts to get a medical opinion affected earlier rulings that Dovala wasn’t entitled to a new trial.
Visiting Judge Judith Cross had previously ruled twice that Burge mounted an adequate defense.
The appeals court also wrote that Pokorny’s conclusion that the evidence provided by Swanson and Perkovic was cumulative to previous evidence presented as part of Dovala’s bid for a new trial was incorrect.
The decision also said that Pokorny applied the wrong standard when he ruled that the new evidence would have changed Cross’ earlier rulings. The proper standard, the appeals court wrote, was whether the information would have supported a meritorious defense.
Joe Frolik, spokesman for Cuyahoga County Prosecutor Tim McGinty, whose office is handling the Dovala case, said prosecutors are reviewing the decision and couldn’t otherwise comment.
Burge said Monday he didn’t disagree with the logic of the appeals court’s decision.