Sunday, 26 August 2007

New Kind of Judge

New Kind of Judge

Judge Burge and his trademark unlit cigar
Judge Burge and his trademark unlit cigar

ELYRIA -- It has taken fewer than nine months on the bench for Lorain County Common Pleas Judge James Burge to define himself as a jurist who marches to the beat of his own drum and to become a lightning rod for controversy.

Burge, who sports a slicked-back silver hairstyle and is often seen with an unlit cigar lodged in the corner of his mouth, said he promised while campaigning for judge to never make a decision based on how it would read in the newspaper. But naturally, Burge who dons reading glasses when he puts on the judge's robe and takes the bench, said he sometimes thinks of how the public may react to some decisions.

''The thought enters my mind, certainly,'' he said. ''It just doesn't weigh in the decision. Everyone would like to be liked and popular. I always base my decisions on what I think is right.''

Burge, who spent decades practicing as a criminal defense attorney before he was elected in November, acknowledged that he has made decisions that some people vehemently disagree with and others praise.

'Sometimes the law will require you to rule favorably for a villain,'' he said.

These are some of Burge's decisions that have been publicly debated or criticized:

-- He appointed American Civil Liberties Union attorney Jeffrey Gamso to represent Ruben Rivera, of Cleveland, and Ronald McCloud, of Lorain, both capital murder defendants, in their arguments that Ohio's lethal injection method is cruel and unusual punishment. The Ohio Attorney General's Office sued Burge Wednesday saying he does not have jurisdiction to hear Rivera's claim. Burge, in July, set an evidentiary hearing for November for Rivera's argument. Neither Rivera's or McCloud's criminal case have gone to trial.

-- Burge, at a re-sentencing hearing in May, reduced the sentence of Thomas Holmes, convicted of beating his wife with a hammer, from 23 years to six years in prison. The result was to set free Holmes, who now lives in Cleveland with his mother.

The Lorain County Prosecutor's Office and Marilyn Zeidner, executive director of Genesis House, have lambasted Burge for that ruling. Burge said he believes the original sentence was more than what was warranted compared to similar offenses.

-- He gave probation to former Elyria councilman Joseph Monteleone, who was convicted of touching the buttocks of three teenage girls and twice asking a 15 year-old girl for sex, while they were working at Monteleone's business, Master Pizza. Burge said Monteleone had suffered enough by resigning from council and trying to sell his business due to his conviction.

-- On Aug. 15, Burge acquitted James P. Smith, a Lorain man who admitted to whipping his son on the back with a belt, of domestic violence and endangering children charges after a bench trial. Burge, a former Lorain school teacher who said he had used corporal punishment in the classroom, said he believed prosecutors did not show that Smith caused serious physical harm or the risk of serious physical harm to his son.

-- Burge in July engaged in a brief legal battle with the county prosecutor's office. He cited Assistant Prosecutor Tony Cillo for contempt of court after tensions about the lethal injection argument and Holmes case boiled over.

Burge eventually dismissed the contempt charge against Cillo after asking common pleas court Administrative Judge Edward Zaleski to appoint a visiting judge to hear it and Zaleski said no. Burge said when he dismissed the contempt charge that he was not sure if Cillo actually wrote the motion that Burge took issue with. The motion opposed McCloud's death penalty argument and accused Burge of trying to ''sandbag'' efforts of the state to pursue capital punishment.

Burge said he stands by those particular decisions and because of his age, (59 when he was elected) he is less likely to be concerned with public opinion.

''I'm not concerned about being re-elected,'' said Burge. ''(But) you have to respect people to exercise their First Amendment right to clobber you.''

On controversial issues like the death penalty or parental discipline most people do not have neutral views, said Burge. Earlier this year, Burge urged his former client, James Filiaggi, an Elyria man put to death in February for shooting and killing his ex-wife at point blank range in 1994, to fight for his life in court before the execution took place.

Burge keeps a photograph of Filiaggi, perhaps his most notorious client, on the wall next to his desk in his Justice Center office. He said in court during a hearing on the lethal injection challenge in July that condemned prisoners should be allowed to die peacefully.

Burge, of Avon Lake, said he can admit when he makes a mistake.

He said he has sentenced criminal defendants too harshly when in an angry mood. After thinking over the weekend about sentences he handed down on a particular Friday (his heavy criminal docket day), Burge has called the sheriff's office to bring defendants back to correct sentences, he said.

''You have a right to be sentenced by someone that's not furious,'' said Burge, who often speaks carefully and slowly as if he is thinking of the best words to use to describe his thoughts. ''I have no problem determining that I'm mistaken and I admit it.''

Jack Bradley, a veteran defense attorney in Lorain County, said it has been unusual for new judges to be in the spotlight as much as Burge has in less than a year.

''Most new judges want to stay under the radar and start their re-election campaign,'' Bradley said.

Burge appears to be more concerned about what justice calls for than about another term in office, Bradley said.

''It's refreshing,'' he said. ''I don't think that what Judge Burge is doing is so radical.''

Burge's actions may be under the microscope more due to his background as a longtime defense attorney before he was elected in November, Bradley said.

Bradley said the rest of the current common pleas general division bench is similar to Burge. In other years, Bradley said, he always did not feel prosecutors and defense attorneys were on a level playing field.

Common Pleas Judge Christopher Rothgery practiced as a criminal defense attorney, but fellow judges James Miraldi and Mark Betleski have backgrounds in civil litigation. Zaleski is a former prosecutor and Judge Raymond Ewers worked in the Lorain law director's office before he took the bench.

''The playing field appears to be level on the Lorain County bench,'' he said.

But Betleski said it's not always true that new judges keep a low profile.

''It's not unique for a new judge to be tested in a lot of areas,'' Betleski said. ''Every judge is tested in the first term, particularly in the first year.''

It appears Burge's courtroom has received more publicity than Miraldi and Ewers, Betleski said.

''It's certainly more than the other two that started the year,'' he said. ''It's certainly action packed.''

Lorain County Prosecutor Dennis Will declined to comment on Burge except to say, ''We do our job no matter what court we're in.''

Burge said the hardest part in his first eight-plus months has been to have to sit back during a trial and not be able to step in if one or both lawyers are letting clients down due to a casual approach to the law. One fear he has had as judge is leaving the courtroom knowing a wrong party prevailed in his court given the evidence in a criminal or civil trial.

''The difficult part is not injecting yourself into a trial,'' he said.

Burge said he has seen disappointing decisions from juries ''but that's the jury system.'' When asked what has been the easiest part of his first year on the bench, he replied, ''The easiest part is getting used to people being nice to you regardless of if they want to.''

©The Morning Journal 2007

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