Day 2: Witnesses get squeamish

Wrap-up of Tuesday's grand jury hearings in Sandusky County
Melissa Topey
May 14, 2014

Jess Burdine, after close to seven years of an expensive legal battle, had his day before a grand jury telling his son’s story.

Burdine said he cried as he told the jury who his son, Craig Burdine, was growing up.

“I could not help it,” Burdine said.

Craig Burdine, died at the Sandusky County Jail on Aug. 11, 2007.

The Burdine family contends a jail guard caused Craig’s death and the Fremont police and the sheriff’s office conspired to cover it up.

County guards dragged him from a police cruiser and into the facility. Craig was already suffering massive injuries, including an open wound to his head, a large burn on his back and abrasions and contusions all over his body when police arrested him after a fight in a Fremont neighborhood.

Craig died just minutes after he was taken into the jail. Police allegedly pepper-sprayed him when they arrested him, and he was still handcuffed and shackled when an officer allegedly repeatedly applied a Taser shock to his body inside the jail. Another jail guard used a chokehold on him, according to Burdine’s family, which caused his death.

Ohio Attorney General Mike DeWine’s office agreed in August to conduct a criminal investigation into his death.

Local officials never conducted one after Burdine died. Although then-Fremont police detective Sean O’Connell told the Burdine family they would fully investigate, he never again contacted the family or returned their calls, after informing them of Craig’s death. 

Jess Burdine was on the stand for more than three hours Tuesday and told about past assaults by Port Clinton and another at the hands of Oak Harbor police that resulted in a $600,000 jury award against the department.  

Those beatings caused his son to suffer from post traumatic stress, and he had a hard time sleeping.

Burdine told jurors his son’s death was not a tragic accident; it was homicide.

Burdine was in the room by himself without an attorney. 

But about a dozen protesters stood on the courthouse sidewalk to show support for Jess Burdine and his family and other families that have lodged complaints against Sandusky County law enforcement officials.

They also said they are protesting against DeWine, who they fear intends to limit evidence jurors hear to avoid getting criminal indictments. DeWine’s office has responded to the family in a similar fashion as the Fremont police and sheriff’s office did previously, at times ignoring their inquiries and not responding to phone calls.  

One witness, who appeared to be a law enforcement agent, testified before Jess Burdine for about an hour beginning at 9 a.m. 

That man would not say what testimony he provided. He also declined to say who he was when asked by a reporter after he was dismissed from the closed courtroom where the jury is meeting. 

Two agents from the Bureau of Criminal Identification — an arm of the AG’s office — patrolled the courthouse during the hearing but were not called as witnesses.  

A young man was called in to testify just after juror members returned from lunch, but he was there just a couple minutes before his testimony concluded. Burdine said Donahue told him the man was testifying in another case but they slipped him in because he had a driver waiting for him.

There was no other case to be presented before the grand jury on Tuesday, said Sandusky County Prosecutor Tom Stierwalt and administrator Brock Kimmet. DeWine’s lead prosecutor, Matt Donahue, declined to comment when asked about the mystery witness and other questions.

Paul Rogers and Ansencion Anciso, Jr. sat together for hours on the benches in a courthouse hallway outside the prosecutor's office waiting to be called. Both men were in the jail the morning of Aug. 11, 2007, and both men gave depositions previously. They each told a Register reporter they didn’t understand why they were called early and made to wait all afternoon. 

Rogers complained he was missing work, and Anciso said he was missing sleep and had work a 12-hour shift later on Tuesday. 

They also both said they weren’t sure what they were expected to testify about. 

Anciso was deposed in February 2010 and said he saw a corrections officer, fitting the description of Frank Kaiser, place a chokehold on Burdine.

“I do not want to get involved. I do not know anything. I did not see anything,” Anciso said when asked about his statements in the deposition. 

He later testified for about a half-hour. Rogers was in front of grand jurors just a few minutes. 

Both men left the courthouse quickly afterward.

Sheriff Kyle Overmyer also was at the courthouse on the second floor where the grand jury meets and the witnesses wait to be called. He walked to Kimmet’s office. Overmyer went with Kimmet into a vacant room that leads to the courtroom where grand jury is meeting while Burdine was testifying. He left within a minute.

The grand jury is not expected to resume hearings until Thursday. 

DeWine has refused to say whether he intends to seek criminal indictments from the grand jury or say whether Dr. Michael Baden would be called as a witness. 

Baden, a forensic pathologist, examined the autopsy, videos and witness statements and determined broken cartilage in Craig Burdine’s neck from the chokehold and compression on his airway caused him to suffocate.  

Baden told the Register neither DeWine nor his prosecutors or BCI agents contacted him during their nearly seven-month criminal investigation. DeWine has refused to say why Baden was never contacted. 

Jess Burdine said he asked Donahue and the grand jurors to get testimony from Baden and other witnesses. 

*

Live updates, Tuesday, May 13, 2014

4:54 p.m. — The grand jury has left for the day.

4:48 p.m. — The last witness has left the courthouse after just a few minutes in front of the grand jury. 

4:40 p.m. — The first witness from the jail has left the courthouse. A second witness was called in to testify. There are no other witnesses waiting. Both men told the Register prior to testifying they weren'y sure why they were called, saying they had not seen anything despite their earlier court depositions in which both recounted witnessing the events leading up to Burdine's death. 

4:03 p.m. — Jess Burdine is done for  the day. He's testimoney will resume on Thursday at 8:45 a.m. They cut short the Burdine testimony to bring on a witness who was at the jai the morning of Burdine's death.

1:15 p.m. — Grand jury members reconvened. Jess Burdine is back on the witness stand. Before Burdine was called in a young man was called in to provide testimony before the grand jury. It is unknown who that young man is but Donahue told Burdine it related to another case.

12:37 p.m. — The jury broke for lunch. Jess Burdine said he is giving testimony about his son's youth and about prior attacks on his son by law enforcement. He said it  is going well and the jurors are paying attention,

11:10 a.m. —  Donahue has called Jess Burdine to the stand. Burdine told him he had evidence he wanted to bring in. Both men gathered up the bags of documents and a board with autopsy photos of Craig Burdine on one side and photos on the other side of barely seen injuries law enforcement said they sustained from a combative Craig Burdine.

The first witness refused to disclose who he was or what testimony he provided. It appears the man, who was wearing a pin on his lapel, was law enforcement, possible the Bureau of Criminal Identification, a division of the Attorney General's office.

9:50 a.m. — Jess Burdine said he spoke to prosecutor Matt Donahue on Monday and Donahue told him he could ask grand jurors to subpoena Dr. Michael Baden. Jess Burdine did not say why Donahue himself refused to subpoena Baden and other witnesses the family wants called, including witnesses who were inside the jail when Craig Burdine died.

The first witness called has not been identified but has been testifying before the grand jury for more than 90 minutes.  

9:20 a.m. — The first witness has taken the stand. Jess Burdine is sitting in the hall waiting for his turn. He is scheduled to take the stand at 10 a.m.

8:30 a.m. — Grand jurors are arriving at the Sandusky County courthouse. Proceedings are expected to begin at 9 a.m.

Jess Burdine, 80, was subpoened on Friday and is expected to be one of the first witness to testify. The grand jury was seated May 6 and Ohio Attorney General Mike DeWine's lead prosecutor, Matt Donahue, spoke with them for about two hours before ending the first day of hearings.

Donahue didn't give Jess Burdine any information when the two talked last week about what he planned for today's proceedings. 

DeWine has refused to say whether Dr. Michael Baden, who determined Craig Burdine was the victim of a homicide at the Sandusky County jail in August 2007, will be called as a witness. Jess Burdine told the Register one of DeWine's investigators told him they found a better pathologist who would be called instead of Baden. The exchange furthered the familiy's suspicions DeWine plans to limit information the grand jury receives to avoid getting any criminal indictments. 

The Burdine family has been fighting for more than six years to get a criminal investigation of Craig Burdine's death. Baden determined he suffocated due to the fractured cartilage in his neck and compression of his airway. Craig Burdine was handcuffed and shackled when he was repeatedly Tasered shortly after jail guards and Fremont police officers dragged him inside the jail from a police cruiser.

Video show Burdine was barely conscious when he was brought to the jail. Local officials have not presented any information that refutes the family's contentions that a jail guard caused his death. 

Protesters and the Justice for Jake and Ella group plan to monitor the grand jury proceedings from outside the courtroom to determine what other witnesses are brought in to testify. Check back here for updates as they happen. 

Click here for related stories. 

Comments

Blue.Streaker

The level of proof needed to be successful is much different in criminal cases vs. civil cases.

A criminal case requires "proof beyond a reasonable doubt." This is often thought of as over 95% persuaded.

A civil case requires only "a preponderance of the evidence," i.e., 51% or more.

Mr. Burdine was not able to sustain 51% in his civil lawsuit. There does not appear to be new information or undiscovered evidence which was not available to his civil case. However, the Grand Jury is a criminal proceeding. Even if the GJ finds probable cause and issues an indictment, there will be no conviction without proof beyond a reasonable doubt.

We all feel great sympathy for Mr. Burdine's situation; losing a child is one of life's ultimate tragedies. However, a protest group urging the GJ to indict is misguided at best.

Matt Westerhold

Thanks Blue.Streaker. You're providing the excuses already using inaccurate information. The civil case never went to trial so there was no evidence for a jury to consider. In addition, local officials did not conduct a criminal investigation, so there was no criminal evidence that could be presented to the judge, or a jury if one had been seated. And a criminal investigation, now that one supposedly was conducted, has nothing to do with a civil case. Obviously you're repeating the early excuses the AG's office gave at the start of the investigation when they telegraphed their intentions they would not seek criminal indictments. It's good you "feel sympathy" for the family but these talking points aren't accurate. 

Blue.Streaker

Hold on, Matt. Just WHY did "the civil case never [go] to trial"? It was because there was insufficient evidence to sustain the claim. The claim lacked 51% persuasive evidence. Otherwise it would have continued. An experienced trial attorney does not dump a wrongful death claim against a well-insured defendant if he is even close to 51%.

It appears that you are correct that no meaningful criminal homicide investigation was conducted. Perhaps one would have been successful when the evidence was fresh, perhaps not. But now, years later, there is no chance of a successful criminal prosecution. None.

Leading this family on, not to mention the earnest and well-intended J4J people, is simply setting them up for disappointment and failure.

But it sure sells newspapers and increases ad revenues.

Matt Westerhold

Evidence is evidence Blue.Streaker. The video is the video. Baden's testimony, and the testimony from the officers and inmates at the jail has all been documented and preserved. The matching statements from the officers and the jail guards still exist and still don't reflect what the video shows. If DeWine's team chooses to ignore it the same way local officials ignored it that's DeWine's choice. But suggesting evidence does not exist is not accurate. And since the judge in the civil suit had no criminal evidence on which to base his ruling, he was unable to make a legitimate ruling. And besides, that case never went to trial and would have no bearing on a legitimate criminal investigation even if it had. If the judge was led to believe the information the county presented was criminal evidence then he was misled and that would appear to be problematic. DeWIne also appears to be ignoring that. It wasn't criminal evidence the county presented; it was information gathered by officials who are employed by the very agencies involved in the circumstances that led to Craig Burdine's death. Eventually, perhaps, local officials, the AG's office and you will tire of the many lame excuses you put forward to ignore all this information. 

Blue.Streaker

Matt (1): "Evidence is evidence."

Matt (2): "....since the judge in the civil suit had no criminal evidence on which to base his ruling, he was unable to make a legitimate ruling. And besides, that case never went to trial and would have no bearing on a legitimate criminal investigation even if it had. If the judge was led to believe the information the county presented was criminal evidence then he was misled and that would appear to be problematic.

Me: Your first observation is correct. There is no difference between
criminal and civil evidence. The difference is in how persuasive that
evidence must be in order to sustain its intended burden in each type of case.

Me: Your second observation shows a disturbing lack of understanding of the judicial process. The judge, whether the case is civil or criminal, will likely see/hear the same evidence. The difference is that in the civil case it is easier to win for the plaintiff because you need only a positive score of 51% (using the % analogy.) To get a criminal conviction requires 95%.

I repeat that a case which cannot sustain its civil burden cannot possibly sustain a criminal burden. Encouraging the Burdines and others will only make them more cynical about our system.

Matt Westerhold

Thanks Blue.Streaker, but it seems obvious you might be an anonymous spokesperson for Sandusky County officials or the AG's office because you're ignoring the meaning of the statements I've posted here. It seems you're purposely misinterpreting them. A criminal investigation stands on its own merits and is entirely unrelated to any civil litigation. This is true on its own, but it's also even more accurate since there was no criminal investigation prior to the civil litigation. In addition, you're misstating the outcome of the civil litigation — it never went to trial so it was never adjudicated.

Blue.Streaker

I am not a spokesperson for either Sandusky County nor the Attorney General. I am a resident of Sandusky County who is weary of seeing our elected officials unfairly bashed by you and your newspaper.

It looks like I will again have to reduce this to its simplest terms so you can understand.

(1) You are only partially correct that "A criminal investigation stands on its own merits and is entirely unrelated to any civil litigation." Quite often civil and criminal cases come out of the same facts. In a car accident case the State may file criminal charges for DUI, etc., and the innocent injured party may file a lawsuit for personal injuries. In such a case the civil litigation will certainly make use of the criminal investigation. But this is just academic.

(2) It is also true that the civil case never went to trial. But please answer this question: WHY did it not go to trial? The answer is because the available evidence could not get past the 51% requirement. The civil attorney had available to him everything the AG's office has (video, Baden, subpoenaed testimony, etc.), and it did not reach 51%.
(3) Unless the AG has newly discovered evidence which was not available to the civil attorney, you are expecting him to produce 95 with the same evidence that failed to produce 51.
(4) If the AG has such new evidence, he will provide it to the GJ and we will see what happens.
(5) If there is no such new evidence, you are demanding a different outcome from the same set of facts.

Please ask one of the SR's attorneys to weigh in on this. I'm tired of explaining.

Babo

It's rather obvious that there is new evidence. Specifically evidence that indicates there was a failure by Sandusky County officials to perform any investigation let alone a thorough investigation as well as violations of policy including that Burdine should have been transported to the hospital first and evaluated before he was jailed.

Had the proper criminal investigation been conducted back in 2007 there would not have been a need for the Burdine family to file a civil suit without the evidence that should have been developed by state LE in the first place.

It's called a cover-up and it's happened before with a Lucas County Jail death as you should know.

holysee

I am a resident of Sandusky County who is cheering of seeing our elected officials fairly bashed by you and your newspaper

Matt Westerhold

If you're tired of explaining Blue.Streaker, then please stop. We disagree and your knowledge of this information is considerably less than reporters and editors at the Register and the witnesses who they have interviewed. You haven't done that and you don't have that depth of understanding. You're either simply missing the point or you're avoiding it. Read Babo's comment for more information. 

Blue.Streaker

No, Matt, it is YOU who is avoiding the point.

In our dialogue I have twice asked the question "WHY did the Burdine's civil case not go to trial?" You have ignored my question in order to avoid its point. You well know the answer; it did not go to trial because the evidence was inadequate. However, you are unwilling to summon the intellectual integrity required to admit this.

You claim superior knowledge about the facts of this case because of all those you and your reporters have interviewed. Interesting you'd make this claim, not knowing who I've talked with or what I've seen. I'm not claiming inside knowledge, I'm just pointing out your amazing arrogance.

You suggest I read Babo's comment for more information. I did. There was none. (I admit I have suspected that you also post under the name of Babo when you want to sound like a redneck. Not sure; just a suspicion.)

Matt Westerhold

A journalist does not make anonymous comments at news web sites, Blue.Streaker, and my guess is Babo is educated well beyond the average level of education of most people. Your suggestion Babo is a 'red neck' violates the comenting guidelines, and you simply ignored the valid points made in Babo's comment.  You tend to do that. Also, it's not arrogant to acknowledge that reporters and editors, who have spoken to the individuals involved in this over the course of nearly seven years, would have more knowledge than you, especially given the lack of depth you've shown. Your comments don't reflect you've gained knowledge beyond what you've read in the Register. Instead, they show your motive. As you stated, you're tired of local "officials getting bashed."  The only solution for your fatigue, perhaps, is either the Register quits writing about this important story, or you quit reading the Register. Hmmm. 

smalltown_lotso...

It's not that hard to understand why the Burdines civil case didn't go to trial, because the lack of investigators following the simple steps of actually investigating the case correctly. The Burdines had to file a criminal case to get a through investigation. One that would look at all the facts not just what the initial investigator reported.

Ralph J.

Would Blue Streaker be a supporter of the cover-up in the death of an inmate at the Lucas County Jail? Lucas County, Ohio Sheriff’s Sergeant Guilty on Federal Civil Rights Charges

http://www.fbi.gov/cleveland/pre...

Babo

Reports at the time indicated Lucas County prosecutor Julia Bates did help cover up that case by defending LE and Lucas County Deputy Coroner Cynthia Beisser's autopsy. After the Feds got involved they conducted their own autopsy and forced Bates to back off of protecting Beissner and the LE.

Babo

@ BS'er: Keep running buff and feel the burn.

Laughingatwttb

Mr. Westerhold has a history of assuming anyone who sides with Sandusky county officials is either an employee of said county or one of the officials.

Einfach genug III

Sure gives someone that impression now doesn't it.

Laughingatwttb

.

OakieHarbor

Blue.Streaker

Did you bother to do any fact checking? Your assumptions are incorrect!

smalltown_lotso...

Sandusky county seems to have issues with cover ups and not abiding by the laws set in place for investigating matters that involve their own people, such as Burdine, Lambroso, Vitte, and I'm sure there are others. If the initial investigation wasn't done correctly, then one would wonder why it wasn't. All these cases involve someone in the criminal justice field not doing their jobs correctly and not throughly investigating everything . Had they done so, this wouldn't even be a topic. Law enforcement, correctional officers, and detectives protect each other. It's one of those i got your back if you got mine things. It's not that hard to see but for some reason you have blinders on. It's basic common sense, the departments should had done their jobs to fully investigate these cases correctly.

Ctwhalers

Blue streaker if you read the register then you know what you said is not right. If you read the newspaper from another county they might have said that. But the register has been double checking there facts. I am at court house with signs. come join us.

sandtown born a...

Hopefully finally some justice in Sandusky county!!! We can only hope

mamaC

Curiously enough Fremont Messenger or it's "lap dog" has not even shown up to report the doings of Sandusky County?! Wonder why? Burdine or Ag office yet again taking a case to grand jury on county officials is not reportable news?
My prediction is this DeWine will get an indictment ( as one can of a ham sandwich) just to ease the mind of the Voter's ( election time for him) and great media reports. But a trail will be way after election is over and there will be no convictions on this case. Sad to say he ( nobill DeWine) and his office hasn't helped any other families and he will do the same with the Burdine family! It appears to many this will happen and not just my opinion.
Don't forget October DeWine agreed and so did Mr. Pepper to a debate at Firelands. DeWine is not gonna come here and have to defend his misdoings ( not helping or protecting families) in Sandusky County either.

Lil DAB

I don't believe the group is actually "protesting" but more-so rallying to show solidarity in wanting JUSTICE for many that have been victims of very substandard investigations! The group wants DeWine and local authorities to KNOW they are being watched and the sweeping of information & evidence under the rug to protect family members and the "good ol'boys" in this day and age of social media and the Sandusky Register's investigations doesn't "fly."

To Blue.Streaker; you said, "There does not appear to be new information or undiscovered evidence which was not available to his civil case..." I wonder if you would think differently if you knew there IS evidence that has been been brought forward and given TO the Attorney General. My question is - was this evidence previously suppressed or hidden? Was there a "cover-up?" Here is hoping and praying the AG attorneys do the RIGHT thing...and PRESENT IT TO THE GRAND JURY!

buh BYE Dewine, (and a whole lot other county office holders) if there is no accountability and integrity...SHow us TRANSPARENCY AND TRUTH!

reddog

Meth, alcohol and weed in the system? Yikes. Those are not good. I feel for the parents, I really do, but wow. Is there an allegation that this man did NOT have these things in his system when he was arrested (for throwing someone into a bonfire!?)

Matt Westerhold

Dr. Baden gave sworn testimony the levels of those substances were far too low to cause sudden death. That testimony — that the findings by the county are inaccurate — has not been refuted. 

sash

Glad to see they brought in a new pathologist. Maybe he found something that can be used in a criminal case.

Matt Westerhold

Burdine family members have said they fear a third pathologist was brought in to avoid having Baden testify. It's similar to how that worked in the Limberios investigation, where the key question about the absence of stippling was never answered. 

Ctwhalers

Reddog he may have had those in his system but if you new all that the evidence shows that he was not combative as they say he was. Plus if you get tazed you will flinch cause of it. Plus if this is in grand jurys hand there must be something especially if they called jess burdine to testify.

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