Witness fails to appear at J.D. Tomlinson, James Burge criminal hearing; judge continues it one week

ELYRIA — A preliminary hearing on criminal charges filed against Lorain County Prosecutor J.D. Tomlinson and his chief of staff, former judge James Burge, ended Friday without anything being decided after several hours of legal arguments. Tomlinson, 43, of Amherst, is facing charges of intimidation, tampering with evidence and attempted bribery, while Burge, 77, of Avon, is facing charges of intimidation and tampering with evidence. Both have declared their innocence. Special prosecutor Ron O'Brien's star witness, Jennifer Battistelli — Tomlinson's former client, employee and girlfriend, who has accused him of verbal, emotional and physical abuse, and then of trying to intimidate her into recanting her allegations and trying to convince her not to testify against him — failed to appear Friday morning in Elyria Municipal Court. She was Tomlinson's former client, employee and later girlfriend from 2021 to 2023, when Battistelli resigned as the director of public relations/community outreach coordinator in Tomlinson's office. Tomlinson in October 2023 paid Battistelli a $100,000 employment settlement from his taxpayer-funded budget. He later was sued for public documents related to the settlement, in a Common Pleas Court civil case that is in settlement negotiations before Visiting Judge Thomas Teodosio. Battistelli, who has told The Chronicle-Telegram "No comment" about Tomlinson and Burge each time she was reached by phone, could not be reached for comment Friday. He phone number appeared to no longer be working. She is believed to be in Arizona, something the defense mentioned first during Friday's hearing — "I'm kind of surprised the defense knows where the witness is when the state does not," O'Brien said during Friday's hearing — and which appeared to be confirmed by documents filed with the court on Friday. In a letter filed with the court, Battistelli wrote that she had "concerns about potential retaliation from J.D. (Tomlinson) and Burge." "They've repeatedly claimed that the felony charges against them are not true, which makes me worried whether they might come after me once this case is over," she wrote. "Given the seriousness of the charges, I fear that anything I say might be used against me and that they will attempt to retaliate in some way." "On another note, I am moving to Arizona and will be signing a lease on November 1," she wrote. "Unfortunately, I won't have the financial means to fly back to Ohio for court proceedings." A former elected Franklin County prosecutor, O'Brien said in court that the state had offered to pay Battistelli's travel costs to return for testimony. Barring that, he said if a warrant is issued for her arrest, the state will bear the cost of having her brought back to testify. While admitting the two argued during their relationship, including in videos Battistelli surreptitiously recorded that were shared with the media, Tomlinson has denied ever hitting a woman. Visiting Judge Patrick Carroll briefly discussed issuing a warrant for Battistelli's arrest for failing to answer a subpoena, but made no decision on the matter. He later continued arguments and the preliminary hearing to Nov. 15. "The last person that wants to continue this case is me," Carroll said earlier in the hearing. O'Brien said as of 1 p.m. Friday, there is no warrant out for Battistelli's arrest. With Battistelli absent, O'Brien instead questioned her former attorney, Kenneth Lieux, who testified that Battistelli had waived the attorney-client privilege they had, which allowed him to testify to what she told him. Such testimony is typically known as hearsay and is not allowed in court. However, O'Brien argued for an exemption to the hearsay rule known as "forfeiture by wrongdoing." Forfeiture by wrongdoing means that hearsay testimony may be admitted in court if a defendant's misconduct, such as threats, makes a witness unavailable to testify. Carroll sustained numerous hearsay objections made by Camera and Burge as O'Brien attempted to question Lieux on Friday to establish forfeiture by wrongdoing. Burge accused O'Brien of trying to shore up the state's case regarding hearsay testimony "by presenting hearsay testimony." Battistelli "never wanted to come to this hearing and never wanted to testify," Burge alleged. Lieux was able to tell the court that Battistelli ended their attorney-client relationship by text message on Oct. 25. He testified he had earlier sent her a subpoena served by O'Brien that required her to show up in court Friday. Camera and Burge both questioned whether email was the proper way to serve a subpoena. Carroll made no ruling on the question. Burge on Friday also made it official that he would represent himself on the charges. Carroll made sure the former judge knew his right to legal counsel before allowing him to continue pro se, or without an attorney. "Personally ... if it was me sitting where you are, I'd have an attorney," Carroll told Burge. Carroll also noted that if convicted of a felony, Burge could "put his law license in jeopardy." If that happened, it would be the third time Burge's law license has been suspended since 2015. Burge's license was first suspended in 2015 after he was charged with crimes including falsification and tampering with records, all of which were converted to misdemeanors due to a clerical error. Based on a recommendation by its Board of Professional Conduct, the Ohio Supreme Court in August 2019 suspended Burge's law license based on the criminal convictions. He got it reinstated three months later. Tomlinson's attorney Michael Camera, who had been representing Burge, told Carroll that Burge "is somewhat of a legend in Lorain County" and "perfectly capable" of representing himself. Camera later told a reporter that Burge "has always been my co-counsel" in the case and Burge going pro se "just makes it official." Carroll also on Friday raised concerns that O'Brien was trying to shift the burden of proof on the charges off himself and onto the defense. It is up to the prosecution to prove there is probable cause, he reminded the parties. The hearing wasn't without some drama: After warning those in the courtroom not to make any outbursts, Carroll sternly silenced Tomlinson supporters who laughed when the judge refused to let Lieux make a statement from the witness stand. "Quiet!" Carroll shouted, pointing at Tomlinson's supporters with two fingers. "Or leave the courtroom." They remained quiet for the remainder of Friday's hearing. Elyria Municipal Court is not the court of final jurisdiction on the current charges, Carroll reminded the parties several times on Friday. It is up to Carroll, assigned to the case by Ohio Supreme Court Chief Justice Sharon Kennedy, to decide if there is enough probable cause for the charges to be bound over to a special grand jury. If that happens, and if the grand jury finds enough evidence, Tomlinson and/or Burge could be indicted in Common Pleas Court and the felony charges could go to trial there. Tomlinson will only be elected county prosecutor through the end of the year. Republican and former assistant county prosecutor Tony Cillo defeated Tomlinson, a Democrat, at the polls Tuesday by a tally of 81,810 votes to 61,676 votes, according to complete but unofficial results from the county Board of Elections. It was Tomlinson's first term in office. Tomlinson has accused Cillo, Sheriff Phil Stammitti, and several other political opponents of being behind the prosecution of the case. Tomlinson's supporters have mimicked those allegations, which Cillo and Stammitti have denied. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.