ELYRIA — A technicality that reduced the severity of some of the public corruption charges against former Lorain County Commissioner Michael Ross might be the key to sparing former county Common Pleas Judge James Burge a felony conviction.
At the heart of the argument, put forward by Burge’s lawyer, Michael Stepanik, in court documents filed this week, is how the jury forms for the three felony tampering with records charges Burge was convicted of last month were worded.
State law requires that when charges have different levels, the verdict forms must make clear exactly what charge the defendant is being convicted of or include the reason why the charge would be elevated from the least severe form of the charge, Stepanik wrote.
Without that language, the Ohio Supreme Court has concluded, a defendant can only be convicted of the lesser form of the offense, which in the case of Burge would be misdemeanor versions of the tampering with records charges, Stepanik argued.
“When you are charged with an offense, you’re also charged with all lesser-included offenses,” Stepanik said Wednesday. “So if he was found guilty, well, what was he found guilty of?”
Burge, who resigned from the bench a few days after the trial ended, also was convicted of three misdemeanor charges of falsification for discrepancies about his connections to Whiteacre North on financial disclosure forms he was required to file with the Ohio Supreme Court.
The wording on the verdict form for one of the tampering with records charges in the case reads: “We, the jury, find the Defendant, James Burge, Guilty of TAMPERING WITH RECORDS as he stands charged in Court 2.”
That language is very similar to that used on the problematic forms in Ross’ case in which he was convicted of 19 counts for taking $582,782 in kickbacks during his four years as a commissioner.
One of the Ross verdict forms read: “We, the jury, find the defendant Guilty of Conspiracy as charged in Count No. 3 of the indictment.”
The 9th District Court of Appeals ruled that because the verdict forms didn’t specify that Ross was being found guilty of two felony-level conspiracy charges, he could only be convicted of the misdemeanor version of the crime. An engaging in a pattern of corrupt activity charges was reduced from a first-degree felony to a second-degree felony for the same reason.
Ross’ sentence was reduced from 9½ years in prison to 9 years following the appeals court decision.
In Burge’s case, the felony-level charges carry the possibility of prison time, while misdemeanors could send him to Lorain County Jail.
Stepanik also pointed out that the key Ohio Supreme Court case on the issues, decided in 2007, dealt with a tampering with records charge that failed to note the level of the offense or that the records that were altered belonged to the government, which makes the charge a felony.
The Ohio Supreme Court reaffirmed the requirement that jury forms need to be specific in a 2013 decision as well, Stepanik wrote.
“(A) felony verdict form — if it does not state the degree of the offense — must state the elements that distinguish it from a misdemeanor offense,” the Supreme Court wrote in the 2013 case.
Jill Del Greco, a spokeswoman for Ohio Attorney General Mike DeWine, whose office prosecuted Burge, said her office has seen Stepanik’s court filing and will file a response.
Burge’s law license was suspended in the wake of his felony conviction and the Lorain County Republican Party is in the process of putting together a list of possible replacements for Gov. John Kasich to name to Burge’s old job. Burge is a Democrat while Kasich is a Republican.
Burge is due back in court on May 14 for a sentencing hearing before Visiting Judge Dale Crawford.