Friday, 24 August 2007

Judge Burge sued by attorney general for exceeding jurisdiction

Judge Burge sued by attorney general for exceeding jurisdiction
Judge James Burge
Judge James Burge
ELYRIA -- The Ohio attorney general has sued Lorain County Common Pleas Court Judge James Burge claiming he is exceeding his authority. The Attorney General's Office wants the Ohio Supreme Court to stop Burge from holding a hearing where capital murder defendant Ruben Rivera can argue that Ohio's lethal injection process for executions is unconstitutional, before Rivera is even tried.

Ohio Attorney General Marc Dann's office on Wednesday filed a writ of prohibition with the Ohio Supreme Court to stop Burge. Burge has 21 days from yesterday to respond, said Chris Davey, Ohio Supreme Court spokesman.

Burge earlier this year appointed American Civil Liberties Union attorney Jeffrey Gamso to represent Rivera, of Cleveland, to argue that Ohio's lethal injection protocol constitutes cruel and unusual punishment. The state attorney general is also challenging Burge's appointment of Gamso.

''Here, Judge Burge appointed Mr. Gamso solely for the purpose of investigating and attacking the method of execution in Ohio,'' the State Attorney General's Office wrote in a memorandum attached to the suit.

Rivera is to be tried in Burge's court for a drug-related killing of a Lorain man. The judge has set an evidentiary hearing for the challenge to the state's lethal injection process for Nov. 5.

No other Ohio trial court judge has decided it has the power to investigate the constitutionality of the state method of execution in pretrial motions or hearings, attorney general's memorandum said.

The Attorney General's Office also has asked the Ohio Supreme Court to order Burge to vacate an order he gave Ohio Department of Rehabilitation and Correction Director Terry Collins to provide information about the lethal injection procedure. Andrea Dean, ODRC spokeswoman, declined comment and referred questions to the Attorney General's Office. Michelle Gatchell, Ohio Attorney General spokeswoman, also declined to comment about the suit.

The attorney general's suit also asks the Ohio Supreme Court to prohibit Burge from exercising jurisdiction of Rivera's challenge to the constitutionality of lethal injection because a criminal case is not the proper forum to challenge it. If a defendant is convicted and sentenced to death, he or she could challenge it in a civil suit in state or federal court, Brian J. Laliberte, deputy first assistant attorney general, wrote in the suit.

Burge said yesterday he was not sure how he would respond to the suit.

''I'll have to think about it,'' he said.

The Lorain County Prosecutor's Office would typically represent Burge when he is sued in an official capacity, but in this case, there would be an obvious conflict of interest because prosecutors agree with the state, Burge said.

Lorain County Prosecutor Dennis Will said he agreed with Burge that there is a conflict. Dann's office has had contact with Will's about the suit, but Will's office was not involved in writing it, Will said.

''We're litigating some of the same issues (as the Attorney General's Office),'' he said. ''Yes, I believe that would be a conflict.''

Burge said he does not want to spend any county money to appoint another lawyer to represent him.

''I don't want the county (taxpayers) to have to pay a dime,'' he said.

Gamso said he thinks Burge's court hearing should go forward, but he has not read the attorney general's suit so he could not say whether he would try to intervene. Since Gamso is not being sued, he said he is not sure whether it would be appropriate to respond on behalf of Rivera.

Gamso accused the state government of trying to keep secret how the lethal injection procedure is carried out.

''I think they should be ashamed of themselves for not wanting it to be reviewed,'' he said. ''The problem is we don't know what they're doing. They want to keep the process secret.''

Gatchell said the suit is about Burge's jurisdiction, not lethal injection in Ohio. Rivera allegedly shot and killed Manual Garcia at his Colorado Avenue home in 2004, police said. An interpreter has translated the proceedings in Burge's court to Rivera, who is Hispanic.

©The Morning Journal 2007

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