Judge dismisses felony charges against County Prosecutor J.D. Tomlinson, Chief of Staff

ELYRIA — The felony charges against Lorain County Prosecutor J.D. Tomlinson and his Chief of Staff James Burge were dismissed on Friday in Elyria Municipal Court after the prosecution's key witness again failed to appear. Tomlinson, 43, of Amherst, had faced charges of intimidation, tampering with evidence and attempted bribery, while Burge, 77, of Avon, was charged with intimidation and tampering with evidence. A preliminary hearing on Friday was the second in which the alleged victim and key witness in the case, Tomlinson's former employee and girlfriend Jennifer Battistelli, failed to appear. Visiting Judge Patrick Carroll declined to file a warrant for Battistelli's arrest because he said he could not know if she had been in the state when she was served with a subpoena to appear in court. Special prosecutor Ron O'Brien said in court that he believed Battistelli, whom he identified as "JB," was in Scottsdale, Arizona. "At this time, without any further evidence there is no recourse but to dismiss the charges," Carroll said. He was met by a short chorus of cheers and applause from Tomlinson's supporters, and immediately sent most of the audience out of the courtroom. "We anticipated this the whole time," Tomlinson said after the hearing. "... This was a terrible attempt at framing us, and it ended exactly the way I anticipated it ending, failure. But they got what they wanted, they framed me enough right before the election to cause problems, and that's what they did." Tomlinson, a Democrat, was defeated by Republican Tony Cillo, his former assistant prosecutor, in the election on Nov. 5. All bond conditions and protection orders against Tomlinson and Burge were lifted with the dismissal. Carroll said that although the charges were dismissed, the state could still seek to have them bound over to Lorain County Common Pleas Court by taking the case directly to a grand jury. O'Brien said that taking the case to a grand jury would be up to the discretion of the county prosecutor. Prosecutor-elect Cillo said that when he takes office he will review the entire case against Tomlinson and determine whether to take it to a grand jury. "My plan is to look at everything once I get there and make a decision," Cillo said. "... It'll be when I can actually see everything for once that I'll make a decision. Then I'd have to decide whether I'm allowed to handle it or if (it would be prosecuted) by someone else if I go that direction." The charges that were filed against Tomlinson and Burge allege that both men harassed Battistelli in August in an attempt to convince her to retract and alter statements she had made about her relationship with Tomlinson. Battistelli is a key witness in a joint investigation by the Sheriff's Office, the Federal Bureau of Investigation and the state Auditor's Office into the the Prosecutor's Office, including an Oct. 17, 2023, settlement that paid Battistelli $100,000 after she resigned from the Prosecutor's Office. That settlement came after Battistelli, through her then-attorney Jack Moran, prepared a U.S. Equal Employment Opportunity Commission complaint about her treatment in the office by Tomlinson. In an affidavit, Lorain County Sheriff's Office alleged that Tomlinson and Burge had attempted to intimidate Battistelli and tampered with evidence by asking her to change previous statements. After the charges were dismissed on Friday, Tomlinson said that he felt Battistelli had been used by the Sheriff's Office and a number of other people in what he referred to as a "concerted conspiracy." "I think she (Battistelli) was steered that way, I don't want to make too many accusations — I think she was steered that way by her attorney, I think he had ulterior motives, I think that's gonna be clear as time goes on," he said. When The Chronicle-Telegram attempted to reach Battistelli for comment on Friday, her phone was disconnected. "The investigation was not prompted by any political considerations but by the payment of $100,000 to a former employee, who is the witness who failed to appear and who also is the former girlfriend of Tomlinson," Sheriff Phil Stammitti, a Democrat, said in an emailed statement. "The State Auditor, the Sheriff and the FBI worked together on the investigation, and the visiting judge who found probable cause to issue the summons for the first court hearing noted that the dismissal was not a final adjudication but that those and other charges could still be pursued in the future." A missing witness Battistelli, the alleged victim and lead witness in the case the Sheriff's Office had filed against Tomlinson and Burge, failed to appear in court again on Friday for a preliminary hearing. She had also failed to appear at a previous hearing in the case a week earlier, on Nov. 8. O'Brien asked Carroll to issue a warrant for Battistelli's arrest to bring her to court, but Carroll said he was unwilling to do so unless the state could prove that Battistelli was in Ohio when she received the subpoena. O'Brien told Carroll that he believed Battistelli was in receipt of multiple subpoenas ordering her to appear in court, but he had been unable to get in contact with her over the course of several weeks. During that time, both O'Brien and Tomlinson's attorney Michael Camera said that Battistelli had been in contact with the defense and told them her former attorney Kenneth Lieux could not testify on her behalf. Lieux had also been named as a victim in the charges, and he had been the one to initially file the complaint with the Lorain County Sheriff's Office. Camera told the court on Friday that he had spoken with Battistelli, and she had told him that Lieux had no right to testify on the alleged crimes against her. O'Brien told the court that in light of that sentiment, he would not call Lieux to the stand as a witness in the preliminary hearing. "The victim, JB, did make contact with him (Camera) despite making no contact with me for about three weeks, with repeated efforts by me trying to reach her," O'Brien said in court. "And in that contact expressed the belief that Mr. Lieux was entitled to discuss her case, either with others or on the stand." The only witness that O'Brien did call to the stand was sheriff's Lt. Joshua Croston, who testified that he had been asked by O'Brien and Capt. Robert Vansant to track sightings of Battistelli's car on Flock license plate reader cameras, which law enforcement agencies across the county use. Croston testified that Battistelli's vehicle had been spotted throughout Lorain County in mid to late October, but that since Nov. 1 that same vehicle was located in Scottsdale, Arizona. O'Brien argued that Battistelli was subpoenaed on Oct. 16 and sent an email acknowledging receipt of the subpoena the next day. He said combined with the presence of her car in the area, the evidence showed that Battistelli was in Ohio when she received the subpoena. The only question Camera asked of Croston on cross-examination was whether the Flock cameras could tell him who was driving the car, which Croston said they could not. "I do believe the record in this case would reflect a knowing, intentional and voluntary disregard of the subpoena by (Battistelli)," O'Brien said. O'Brien added that Battistelli was a party to a case in the Lorain County Domestic Relations Court and had sent a lawyer to represent her in that case on Tuesday, but made no such efforts in the case of the hearing Friday. "I believe the record is sufficient to justify the court issuing a warrant for her to show cause why she has ignored the order of the court via subpoena," O'Brien said. Carroll said that he felt the evidence showed that the subpoena issued to Battistelli on Oct. 16 was not properly served, that there was no evidence she was in the state at that time and that she was a party in the Domestic Relations case, but not in the case before him as victim's are witnesses, not parties to a case. "I'm not inclined to issue a warrant for her arrest because I feel that the evidence has not been sufficient to determine that this court has authority over her at this time," Carroll said. Carroll asked O'Brien if the state was able to present any further evidence the case should be bound over to Common Pleas Court. O'Brien said he was not. With no more witnesses brought forward by the prosecution, Carroll said he had no choice but to dismiss the charges. Some members of the audience sitting behind Tomlinson and Burge — several of them wearing "Tomlinson for Prosecutor" T-shirts — cheered and applauded. They were quickly quieted by Carroll, who ordered everyone sitting on the defense side of the courtroom to leave. He then continued on with his ruling. "I do want to point out further for the record that this finding by this board does not mean finality in this case," Carroll said. "... the authority under a preliminary would be to have the court, if there was sufficient evidence, to have the defendants bound over to Common Pleas Court as felonies. Jeopardy does not attach here, there is no prohibition to Mr. O'Brien or whoever proceeding directly to the grand jury. This is a nonbinding dismissal order." Case could still proceed After embracing his family and supporters, Tomlinson spoke to the media with Burge at his side. The pair said that the charges were dismissed not because Battistelli didn't show up, but because they were innocent. "I would have preferred a hearing, that's what I wanted," he said. "Like I said, we have no problem, earlier in the case we wanted to subpoena Jennifer. … We were very ready to subpoena her as well, we have all the evidence that it shows to prove that we're innocent. They've done a horrible job attempting to frame us. Now the question is, how are they going to frame us in the future?" Tomlinson said that he had evidence the he knew the Sheriff's Office was in possession of in early October showing "the charges were false." Camera presented members of the media with screenshots of what appeared to be a lengthy text exchange between Battistelli and Vansant, the lead investigator on the case for the Sheriff's Office. In those texts, a contact titled "Jen B" tells "Bobby" that "some of it is written out of context and is not true." "I told you over and over again.. Jd was a horrible boyfriend but for you to turn my relationship into charges without asking me is wrong and making me a victim," one of the texts said. Another stated "It was wrong to charge them." Tomlinson said these texts were exculpatory evidence and that he and Burge did not receive copies of that evidence "until two days after the election." "They withheld it just for election purposes," Burge said. "We should have had that immediately." Tomlinson said that he felt the felony charges being filed had a "significant impact" on the results of the election. "I think it's a difficult thing to come back from," he said. The outgoing prosecutor laid out a list of people he said were involved in a "concerted conspiracy" to have him removed from office, including Sheriff Phil Stammitti, Cillo, Lieux, Vansant and former County Prosecutor Dennis Will. The case could still be taken to a grand jury by Cillo or a special prosecutor, but Tomlinson said he was confident the case would not move forward. "They could attempt to continue the frame job by trying to present it to a grand jury, I don't know whether they're gonna do that or not," Tomlinson said. "I think they were sufficiently embarrassed today." Also still up in the air is the joint Sheriff's Office, FBI and Auditor's Office investigation into the Prosecutor's Office and the payment made to Battistelli. The Sheriff's Office has requested a special prosecutor in that case but the decision to assign one was repealed. It is currently in the 9th District Court of Appeals. Cillo said that in his opinion, the original $100,000 payment had more to do with the election than the charges that were later filed. "I don't know if (the charges) impacted the election, but people seem to be more upset about him paying $100,000 to his girlfriend, from what I had heard," "So that wouldn't change whether there were criminal charges or not. And politically motivated? No, not that I saw. It wouldn't be from me, I can promise you that." Contact Owen MacMillan at (440) 329-7123 or omacmillan@chroniclet.com.