Cillo should recuse himself from Tomlinson case

Lorain County Prosecutor-elect Tony Cillo is the wrong person to decide whether to breathe new life into a dismissed criminal case against the current prosecutor, J.D. Tomlinson. The charges against Tomlinson and his chief of staff, James Burge, were dismissed Friday after a key witness in the case, Jennifer Battistelli, failed to show up that day for a preliminary hearing before Visiting Judge Patrick Carroll. Tomlinson and Burge were accused of trying to get Battistelli to change claims put forward by her lawyers that Tomlinson had struck her while they were dating. Without Battistelli's testimony, Carroll ruled, there wasn't enough evidence to allow the case to proceed. (The judge also declined to issue an arrest warrant for Battistelli because it was unclear whether she was in Ohio when she received the subpoena for Friday's hearing. She skipped an earlier hearing as well.) Tomlinson naturally declared vindication, proclaiming that the charges, which were filed about a month before Election Day, were the result of "a terrible attempt at framing us, and it ended exactly the way I anticipated it ending, failure." He continued: "But they got what they wanted, they framed me enough right before the election to cause problems, and that's what they did." As we noted when we endorsed Cillo, the timing of the criminal charges was unfortunate, but it didn't make them unjustified. If Tomlinson and Burge were indeed illegally pressuring Battistelli, charging them might have been the only way to get them to stop. In any event, Cillo, a Republican, won a convincing victory over Tomlinson, a Democrat, but the charges weren't the only factors working against the incumbent. A year ago, Tomlinson reached a $100,000 settlement with Battistelli and her lawyers to resolve claims that she had been improperly disciplined for filing a complaint alleging discrimination against a coworker. Burge deemed the complaint unsubstantiated and wrote up Battistelli, who resigned a short time later. It later came to light that Battistelli's attorneys had sent Tomlinson's office a draft complaint to the Equal Employment Opportunity Commission before the settlement was finalized. In addition to saying Battistelli was wrongly punished, it accused Tomlinson of domestic violence and sexual harassment. (Tomlinson has denied striking Battistelli.) Tomlinson fought, wrongly in our view, to keep the document a secret, and when a judge finally decided it was a public record, it further eroded Tomlinson's electoral chances. That was before the charges were filed. The settlement also is the subject of an ongoing investigation by the county Sheriff's Office, the FBI and Ohio Auditor Keith Faber's office. That investigation should continue, although a special prosecutor, not Cillo, should decide whether any charges should be filed by taking it before a grand jury. All of which brings us back to whether Cillo should have any involvement in reviving the now-dismissed case against Tomlinson and Burge. He said Friday that he would review it when he took office in January. "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." We have always found dubious Tomlinson's claims that politics alone motivated the investigations into his relationship with Battistelli. He undermined the public's trust by refusing to release what was clearly a public record. When it finally became public, it raised significant questions about how he had handled the settlement. Tomlinson has said that the accusations of domestic violence and sexual harassment weren't a factor in the settlement, but that's hard to believe given that his office knew about them before the county commissioners approved the settlement. Moreover, he was, inappropriately in our view, dating a subordinate and used taxpayer money to resolve a legal dispute with her. They also appear to have been dating off and on since the settlement was reached. The public deserves more information, along with an impartial review of the settlement and Tomlinson's subsequent actions. The trouble is that no matter what Cillo does, he will likely face accusations that politics motivated his decisions. Were Cillo to end the investigation without charges, Tomlinson might argue that the only reason the case was brought at all was to help Cillo win. Were Cillo to move ahead with the case, Tomlinson might claim that Cillo's motive was political retribution. Prosecutors and investigators should strive to avoid even the appearance of impropriety. Cillo would therefore better serve the public by stepping back and handing off the case to a special prosecutor, whether that's current Special Prosecutor Ron O'Brien or someone else. Doing so would insulate Cillo from Tomlinson's ongoing claims of political persecution and bolster the public's faith that the facts and the law alone would drive whatever happens with the case.