December 19, 2014

Elyria
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Prosecutor kept tabs on Judge Burge for years

Burge

Burge

ELYRIA — Members of Lorain County Prosecutor Dennis Will’s staff kept detailed records of their interactions with county Common Pleas Judge James Burge for years, according documents released this week by Will’s office in response to public records requests.

Many of the episodes involving Burge were included in an affidavit of disqualification Will has filed with the Ohio Supreme Court asking that Burge be barred from handling any case his office is involved with. Burge has 276 criminal cases pending on his docket, according to the court filing.

Will has accused Burge of being prejudiced against his office, sexually harassing and physically intimidating his staff, making racist comments and trying to secure a government job for his wife.

Burge has denied wrongdoing and is preparing a formal response to Will’s affidavit.

The ride

Some of the incidents described in the documents released this week have not been publicly revealed before.

For instance, Assistant County Prosecutor Chris Pierre wrote that Burge told him in January 2011 that he was leaving the Lorain/Medina Community Based Correctional Facility when he was approached by three “relatively well dressed” men, who asked him to drive them to Oberlin.

The men, Burim Aliu, Ricky Dang and Tung Kha, had just been released from Lorain County Jail, which is next to the correctional facility, on felony marijuana possession charges. Burge agreed to give them a ride.

It was unclear from the memo when Burge gave the trio a ride, but their cases were ultimately assigned to his docket. Lawyers for all three men have asked Burge to suppress the evidence in the case, but a hearing scheduled for Tuesday was delayed because the judge has been temporarily banned from having anything to do with prosecutors’ cases until the Supreme Court reaches a decision on whether he is biased against Will.

Pierre wrote that he discussed the matter with his superiors and they agreed that it would be best if the case was transferred to another judge. Pierre wrote that Burge appeared annoyed by that and after the defense attorneys said they had no objection to Burge remaining on the case, the judge told him to write up the request.

“I stated to the Judge that I was hoping to just write up a transfer because I wanted to avoid making a motion detailing what happened, as I did not want it to appear that the state was implying he had done something improper or that we were trying to embarrass him,” Pierre wrote. “Judge told me that I needed to make the motion and show why he could not be impartial.”

Court records indicate that prosecutors never made a formal request for Burge to get off the cases.

Burge said Tuesday that he had thought Aliu, Tang and Kha were Oberlin College students when he agreed to give them a ride and didn’t realize they were assigned to his docket until someone told him about it.

Also included in the documents were descriptions from prosecutors of snippets of conversations overheard between Burge and defense attorneys in the halls and elevators of the Lorain County Justice Center, portions of trial transcripts and letters from Burge complaining about the conduct of some members of Will’s staff.

Letters between Will and Burge from 2009 detail the judge’s displeasure with an assistant prosecutor who didn’t tell him about a notice being sent to sex offenders. Burge wrote it would be best for that prosecutor not to appear before him in the future because he would have to prove everything he said to the judge.

Another memo described a 2013 talk Burge gave to the Lorain County Bar Association in which he discussed the adversarial relationship between the two sides in cases, and said when he was a defense attorney “he kept himself going by ‘hating’ his opponent.”

The memo also said that while Burge said the United States had the “best” justice system in the world, there were times when a gun or baseball bat worked better.

Motives

Burge said he has yet to fully review all of the documents provided to him by prosecutors, but he believes he understands the intent of the memos.

“I think that it was probably the prosecutors’ goal, since they didn’t run someone against me, to get rid of me in some fashion and they were preparing for it,” Burge said.

Burge, a Democrat, bested Republican James Gemelas in his first run for the bench in 2006. He was unopposed in his 2012 re-election bid. Will is a Democrat.

In addition to Will’s affidavit of disqualification, Burge also is the subject of an ongoing criminal investigation, which centers, at least in part, on his finances and a confidential inquiry being run by the Supreme Court’s Office of Disciplinary Counsel.

Will has acknowledged that he requested state investigators handle a criminal probe of Burge after another sitting judge brought allegations of criminal wrongdoing on Burge’s part to him. But Will and other members of his staff have written that they haven’t filed disciplinary complaints against Burge, although they have acknowledged cooperating when asked to do so.

Will also had asked the county’s other five General Division judges to remove Burge as administrative judge and bar him from hearing criminal cases. The other judges refused to do so. Burge has written that he believes Will threatened to release the accumulated information prosecutors had gathered about him over the years if the judges didn’t agree to the request.

Although Will declined to comment on Burge’s comments Tuesday, he has previously denied threatening the judges and said that he was trying to avoid involving the Supreme Court.

“Your attempt to re-characterize the purpose of those meetings as nefariously motivated to remove you from office, have you disbarred or indicted for a criminal offense is inaccurate,” Will wrote in a May 28 letter. “I have over a period of years attempted to perform my duties. I have repeatedly had to change courtroom assignments due to your actions. Those actions have neither ceased nor lessened; instead, they continue to increase in both frequency and severity.”

Other judges

Although the vast majority of the documents released by Will’s office focused on Burge, there were memos detailing conversations and incidents involving other judges as well.

For instance, Assistant County Prosecutor Peter Gauthier wrote an email detailing an April 21 conversation he had with county Common Pleas Judge John Miraldi regarding the case of Clarence Adams III, who at the time was awaiting trial on capital murder charges. Adams was later convicted of a lesser murder charge and sentenced to 23 years to life in prison by a three-judge panel.

“I made a comment about the possibility of the defense withdrawing the jury waiver in Adams,” Gauthier wrote. “(Miraldi) seemed surprised by this and I said that I didn’t know this to be the case, but that it was something that we had discussed in the office as a possibility. I also mentioned how it seemed like they were (judge) shopping. He responded by saying that it seems as if the prosecutor’s office does the same thing with (J)udge Burge. It seemed like an off-handed comment and that was the end of (it).”

Miraldi said he wasn’t aware of Gauthier’s email until provided a copy by The Chronicle-Telegram.

“I am stunned that my harmless comment made during a conversation initiated by the prosecutor’s office would become the subject matter of a memo created by the prosecutors and kept on file by their office,” he said. “What I was doing was pointing out the other side of the issue so both sides of the issue could be considered, which I think would be a good quality for a judge.”

Miraldi said he doesn’t hold the memo against Gauthier.

“I have a high degree of respect for (Assistant) Prosecutor Gauthier. He has always been very professional and I do not believe that the creation of the memo was initiated by him,” he said.

The files also included memos describing incidents with Judge James Miraldi, including prosecutors detailing Miraldi delaying the return of a wanted man to Puerto Rico after he learned of alleged death threats that had been made against the man.

In another memo, Assistant County Prosecutor Laura Dezort described how in 2009 Miraldi called the victim in a domestic violence case before agreeing to let the defendant in the case out on bond.
Miraldi said he had no problem with prosecutors writing down their interactions with him, and he felt he had done the right thing in each instance.

“These were not the typical situations,” the judge said. “Something came up and you want to be flexible.”

In a letter to Burge that accompanied the documents, Assistant County Prosecutor Gerald Innes wrote that prosecutors don’t keep individual files on judges. He also noted that it wouldn’t be feasible to search through hundreds of case files seeking every time a prosecutor wrote down something about a judge.

“It is my understanding that assistant prosecutors will often make case notes with reference to some statement or action of a judge during the course of the matter,” Innes wrote. “In order to locate these, we would have to search through every file in our possession.”

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com. Follow him on Twitter @BradDickenCT.