Burge says he can offer fair hearing in death case

Burge says he can offer fair hearing in death case

By MATT SUMAN, Morning Journal Writer

04/04/2008

ELYRIA - Lorain County Common Pleas Judge James Burge said despite his efforts to save the life of the last inmate executed in Ohio, he can conduct a fair hearing for two death penalty defendants challenging Ohio's method of lethal injection.

The Lorain County Prosecutor's Office pointed out for the court record in a hearing yesterday that Burge has a photograph of James Filiaggi, a former client who was executed in February 2007, in his office.

Prosecutors also mentioned that Burge urged Filiaggi to save his life by joining a federal lawsuit that challenges the constitutionality of the death penalty.

But Burge said the state did not ask him to recuse himself from a hearing set for Monday on murder defendants Ronald McCloud's and Ruben Rivera's challenge to lethal injection.

"I've never expressed an opinion to anyone on the constitutionality of lethal injection," Burge said yesterday.

Burge said he keeps Filiaggi's photo in his office as a constant reminder to be at his best all of the time. Filiaggi was convicted of shooting his estranged wife, Lisa Hope Filiaggi, point blank in January 1994 in Lorain.

"I explained that his (case) was my biggest failure of my 31 years of practice," he said.

Burge said he spoke to Filiaggi's mother about joining a federal lawsuit before Filiaggi was executed.

McCloud is accused of raping and killing Janet Barnhard, 57, at the Living Water Christian Fellowship Church in Lorain in June 2005.

Rivera is awaiting trial for the shooting death of Manuel Garcia in Lorain in 2004.

Meanwhile, during yesterday's hearing, Jeffrey Gamso, legal director of the Ohio American Civil Liberties Union who is representing the two men, joked that members of the execution team should wear the Darth Vader masks he had in court to protect their identity, Burge said. The joke angered Burge who gave Gamso a verbal lashing and said he would put him in jail if that behavior continued.

"I shouldn't have lost my temper," Burge said after the hearing.

Kreig Brusnahan, Rivera's co-counsel, said Gamso's move to bring the masks to the hearing was unexpected and appeared to be a poor attempt bring humor to a tense situation.

"I was very surprised," Brusnahan said. "I didn't know what the hell was in that bag."

If necessary, Burge said members of the state execution team would be deposed but not in open court. Burge said his learned in his experience at Filiaggi's execution that members of the execution team do not act as though they are playing the role of Darth Vader.

Lorain County Prosecutor Dennis Will said the information about Burge was put on the record yesterday to make sure McCloud and Rivera understand the proceedings and to preserve it for expected appeals.

"This case could be litigated 10 years down the road," Will said.

Brusnahan said the statements the state offered in court were a poor attempt to try to put Burge in a negative light.

"It's a thinly veiled attempt to cast a negative (portrayal) on the court," he said. "My opinion is that it's a sad day for justice."

The American Civil Liberties Union believes many Ohio death row inmates suffer excruciating, torturous pain during executions. Gamso contends that pain violates federal and state constitutions which forbid cruel and unusual punishment and Ohio law that requires that death be administered "quickly and painlessly."

McCloud's and Rivera's cases are the first in the nation to address these issues before trial and to have the possibility of precluding the death penalty completely, according to the American Civil Liberties Union.

Filiaggi, at one time a death row volunteer who had given up his appeals to speed his execution, reconsidered days before execution took place and tried to join the federal lawsuit. Federal Judge Gregory Frost denied Filiaggi's request.

Gamso said the issues his side wishes to address are those concerning the execution team members' experience and training.

Assistant Prosecutor Tony Cillo said the state plans to have expert witness Mark Dershwitz, an anesthesiologist from Massachusetts, testify via video. Gamso said Mark Heath, an anesthesiologist and expert witness, is expected to testify on behalf of McCloud and Rivera.

Brusnahan said he anticipates testimony in next week's hearing to last two or more days.