ELYRIA — Former Lorain County Common Pleas Judge James Burge grinned broadly as he was surrounded by supporters following a sentencing hearing Thursday in which he was ordered to pay a $3,000 fine for discrepancies on financial disclosure forms.
Burge called the sentence handed down by Visiting Judge Dale Crawford “charitable” and said he is considering an appeal to try to have his convictions overturned.
Crawford, who declined to send Burge to jail or place him on probation, compared the sentence he imposed to the fines former Gov. Bob Taft was required to pay after he was convicted of similar misdemeanor ethics charges for failing to report rounds of golf he played with a lobbyist.
Burge said he is aware that the criminal case against him could well be his legacy.
“In my view, when a lawyer, especially a judge, is convicted of offenses like these, it’s what I would call a one-fact resume, and that’s probably the way I’ll be remembered,” Burge said.
Crawford told Burge that he had been convicted because of his “arrogance” and decision to defend himself during last month’s jury trial, something Crawford had warned him could backfire. Crawford said the jury didn’t like Burge’s presentation of the case and his shifting defenses during the trial.
Crawford also said he hadn’t appreciated some of the actions taken by Burge during the case and would have held him in contempt of court had he not been convicted.
Despite the convictions, Crawford said he didn’t believe the charges against Burge warranted him losing his judgeship or his law license, which the Ohio Supreme Court automatically suspends when lawyers are convicted of felonies.
Burge, who resigned a few days after the jury returned guilty verdicts last month on three felony tampering with records and three misdemeanor falsification charges, told Crawford he didn’t think it would be right for him to continue to serve as a judge.
“To me, it would have been disingenuous to sit where you are with criminal convictions and address a criminal defendant,” Burge said in the courtroom, which was packed with his supporters, court staff, defense attorneys and prosecutors.
Although the jury found Burge guilty of felony tampering with records charges, Crawford reduced those counts to misdemeanors because the jury verdict forms failed to note the charge the jury was convicting Burge of were felonies.
Under Ohio law, if the verdict form doesn’t list the level of the offense the jury is presumed to have convicted the defendant on the least serious form of the offense.
Assistant Ohio Attorney General Matt Donahue, who prosecuted Burge, argued in court documents filed an hour before Thursday’s sentencing hearing that the felony convictions should stand.
The jury was never given the option of convicting Burge of the misdemeanor charge because the government records he was accused of tampering with made the offense a felony, Donahue wrote. He also contended that the jury found Burge guilty of tampering with records as charged in the indictment, which was the felony level of the charge.
“The finding in the verdict cannot be described as error, let alone an obvious defect in the trial proceedings, and it did not affect the defendant’s substantial rights,” Donahue wrote. “He knew from the outset that the State intended to prove his guilt of Tampering with Government Records. And it did.”
Although Donahue wrote that the forms were prepared by Lorain County Common Pleas Court staff and that he never saw them before they were given to the jury, Crawford said he alone was responsible for the forms.
“I prepared the verdict forms,” Crawford said. “There’s nobody else that prepared them for me.”
Crawford said he followed his usual procedure in leaving off the level and elements of the offense from the verdict forms, but that based on an Ohio Supreme Court decision that was a mistake.
“I was in error with respect to that and the verdict forms were inappropriate,” he said.
During the hearing, Donahue didn’t push for any particular form of sentence for Burge, but he did argue that Burge had falsified documents for years and that Burge’s crimes were “inextricably linked to his public responsibilities as a public official.”
The allegations against Burge centered on whether he failed to disclose his connections to Whiteacre North, a company that owns 600 Broadway in Lorain, a building where several lawyers who have appeared before Burge have their legal offices.
Although Burge at one point conceded he had made errors not listing Whiteacre North and Lorain National Bank on the forms, he testified that he had done nothing improper and shouldn’t have revised his disclosure forms.
Burge’s own law office was in the building before he took the bench in 2007. He and his partners in Whiteacre North sold the business to attorney Shimane Smith when Burge became a judge, but the deal fell apart in 2011, and control of the company ultimately reverted to Burge, his wife, Susan Burge, and attorney Michael Tully.
When Burge realized the company was reverting to his ownership, he sold his interest to his wife for $1 in June 2011.
Prosecutors had argued that because Burge approved payments to lawyers for representing indigent defendants while they were leasing from Whiteacre North he had an unlawful interest in a public contract before he sold his stake to Susan Burge. Crawford dismissed those charges during the trial.
Burge said after the hearing that he is the first judge to be tried in the state for financial disclosure violations and pointed out that Ohio Supreme Court Justice William O’Neill also left items off his disclosure forms but isn’t being prosecuted. O’Neill could face disciplinary action.
Burge said he was singled out for prosecution because after county Common Pleas Judge Christopher Rothgery raised concerns about Burge’s campaign efforts to county Prosecutor Dennis Will, it gave Will the opportunity to bring in a special prosecutor.
Will and Burge have a long history of disagreements, and Will has pushed to have Burge removed from cases over the years with mixed results. An effort by Will last year to have Burge barred from handling criminal cases as a judge was rejected by Chief Justice Maureen O’Connor.
Burge said he was never charged with any of the issues raised by Rothgery, but because prosecutors were already looking into him, they continued to probe his affairs until they found something they could charge him with. Burge has previously argued that Donahue was infected with the animosity Will and his staff felt toward him.
Both Will and Ohio Attorney General Mike DeWine’s office have rejected allegations they acted improperly.
Burge said his focus now will be on getting his law license, which was suspended following the felony convictions, reinstated and deciding whether he will appeal. Although the suspension of his law license isn’t mandatory with a misdemeanor conviction, Burge could still face disciplinary action from the Supreme Court.
If he’s successful in getting his conviction overturned, Burge, a Democrat, said he might run for judge again in 2016.
In the meantime, Lorain County Republican Party Chairwoman Helen Hurst said a committee is preparing to recommend a replacement for Burge to Gov. John Kasich, a Republican. That replacement would have to run to retain the seat next year to serve out the remaining two years of Burge’s term.
Until a replacement is named, Burge’s former docket is being handled by Visiting Judge Thomas Pokorny.