ELYRIA — For the third time this year, an accused killer facing a possible death sentence has waived his right to a jury trial and will instead have his case heard by a three-judge panel.
Austin Diaz, 20, is accused of being one of two men who beat and robbed Lamar “Mark” Taylor as the Lorain man walked to his East 34th Street home on April 8, 2012.
His co-defendant, Clarence Adams III, was sentenced to 23 years to life in prison in May after a trial before a three-judge panel that cleared him of aggravated murder, but found him guilty of murder, felonious assault and aggravated robbery. Had he been convicted of aggravated murder, Adams would have been eligible for a possible death sentence.
Diaz’s trial is scheduled to begin Sept. 9 before a panel comprised of Lorain County Common Pleas judges John Miraldi, James Miraldi and Christopher Rothgery.
County Probate Judge James Walther chose James Miraldi and Rothgery to join John Miraldi, the judge who has been handling the case, on the panel during a random drawing of playing cards during a hearing Monday.
Before the cards were drawn, Assistant County Prosecutor Tony Cillo objected to the inclusion of Common Pleas Judge James Burge, who was barred from serving on a three-judge panel in the trial of Vincent Jackson Jr. earlier this year. Jackson also avoided a death sentence following his trial.
Ohio Supreme Court Justice Maureen O’Connor ruled in February that Burge couldn’t serve on the Jackson panel because of a January court order in which Burge removed himself from all of Cillo’s cases. As the chief assistant prosecutor in charge of criminal cases, Cillo is involved in all of the county’s capital murder trials.
But O’Connor also wrote that if Burge ever lifted that order, he could serve on cases involving Cillo, something the judge did in April.
Cillo said Monday that he believes Burge’s April order was deficient because it didn’t explain why he was lifting his self-imposed ban on hearing cases involving Cillo.
Cillo also said that there might be even more reason to keep Burge off of his cases because of some of the things the judge wrote earlier this year while fending off a request from county Prosecutor Dennis Will that asked O’Connor to bar Burge from hearing any case involving his office. O’Connor declined that request.
Will said Monday that he won’t need to take Cillo’s concerns about Burge to O’Connor because Burge was the last judge picked in the random draw, which means he’d only serve on the panel if every other death penalty-certified judge in the county were unavailable.
In addition to his concerns about whether Burge should hear any case involving him, Cillo also said he objected to Burge’s inclusion in the pool of judges because one of Diaz’s lawyers, J. Anthony Rich, rents office space at 600 Broadway.
Before becoming a judge in 2007, Burge’s law offices were also in the building, and he was a part owner in the building. He sold the building when he took office, but the building reverted to the control of the judge and his business partners in 2011 when the purchaser, attorney Shimane Smith, defaulted on the deal.
Burge later transferred his control in the building to his wife, although Cillo said because the judge remains a guarantor on an old loan on the building, he believes Burge still has a financial interest in the building.
Rich said prosecutors waived the conflict back in 2007 and have only raised the issue a few times this year when it benefits them.
Will said although there was one case in which his office waived the conflict, but he’s never issued a blanket waiver. He also said it’s the responsibility of the judge and defense attorneys to bring up the possible conflict.
“I never waived anything in totality,” Will said.
Burge declined to comment Monday.