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OTTAWA COUNTY, OHIO----The U.S. Constitution, particularly the First, Sixth and Fourteenth Amendments, has apparently been suspended in northern Ohio.
And if you insult the judge, he’ll use his black robe and gavel to get even, especially if it’s Richard Markus and his adversary is Elsebeth Baumgartner with whom he has a long and conflicted legal relationship.
Ottawa County prosecutor Mark Mulligan, Judge David Faulkner of the Ottawa County Common Pleas Court and retired visiting judge Richard Markus seem to have decided that the U.S. Constitution isn’t applicable in northern Ohio.
The trial in the case of disbarred attorney Elsebeth Baumgarter, charged with at least 32 counts of criminal contempt on the complaint of Judge Markus, is scheduled to begin Monday, March 20 in Ottawa County Common Pleas Court.
Although Mulligan has been previously disqualified by another retired visiting judge from prosecuting Baumgartner in other cases due to conflicts of interest, he has refused to disqualify himself in this matter and so far, Faulkner has refused to remove him.
Already the deck is stacked and there is virtually no perception that Baumgartner could or will receive a fair trial.
The U.S. Supreme Court held over 60 years ago that a judge may not hold in contempt one who ventures to publish anything that tends to make him unpopular or to belittle him or punish speech critical of their actions. Apparently Markus and Mulligan don’t believe that Supreme Court rulings are “supreme” in Ottawa County.
The First Amendment case of Baumgartner and a judge and prosecutor’s attempt to criminalize free speech has become the focus of nationwide attention in regard to the charges of egregious judicial misconduct and public corruption in northern Ohio---especially in view of the still evolving ethics case of Ohio Gov. Bob Taft and Republican insider Thomas Noe in the dubbed “Coingate” scandal. Noe was chairman of President Bush’s 2004 re-election campaign in northwest Ohio and a major fundraiser for Bush’s re-election campaign.
Baumgartner argues that her criticism of Markus is protected by the First Amendment, saying that the charges against her are “so violative of the First Amendment that it gives one pause that we could come to this point in American history”.
But although if convicted she could be sentenced to up to 30 days in jail and assessed a $250 fine on each count, Judge Faulkner has stated that she’s not entitled to a trial by a jury of her peers, as guaranteed by the Sixth Amendment, and that she cannot be represented by counsel, that she must proceed pro se.
Right to counsel in any manner in which one’s freedom is at stake is also guaranteed by the Sixth Amendment.
Faulkner has also ruled that she can’t have a notice of the charges against her, another constitutional mandate so that she knows what she’s defending.
Baumgartner appeared in court earlier this week before Faulkner, seeking a continuance, but Faulkner said no way.
Baumgartner cited both the U.S. and Ohio state Constitution, saying that she has the due process right to a notice of the contempt charge and its underlying factual basis. She said that in an indirect contempt proceeding, the accused has a due process right to have served upon her a rule which must specify when and where the contempt was committed with such reasonable certainty as to inform her of the nature and circumstances of the charge and set forth the facts which supposedly constitute the contempt.
She says that she’s only been served an unsworn document which only lists purported statements made by her in legal pleadings. The document doesn’t state the nature of the charge and doesn’t even clearly state how many counts of contempt she’s facing.
She says the case is numbered like a civil case although they are claiming it’s a criminal contempt of court. Faulkner has ruled that Baumgartner cannot call witnesses because she failed to subpoena witnesses by his imposed deadline of Dec. 29. The only witness who will be allowed to testify is Markus.
Baumgartner could not meet the court deadline as she was in North Coast Hospital under court order for a mental evaluation. She was found competent.
She says she knows of two other documents entered into the court by Markus which have never been served on her in which he “charges” her with eight additional counts of contempt, bringing the charges to about 40.
Contempt charges were levied against Baumgartner by Markus in December 2004 during a civil trial that Markus was adjudicating in which former Benton-Carroll-Salem school board member Kellen Smith was suing Baumgartner for libel and defamation. Markus awarded Smith $175,000, saying that Baumgartner had repeatedly libeled Smith in letters about him written to various public officials after Smith joined the school board.
Baumgartner told Markus during the trial that he was corrupt and had engaged in case fixing. He said that allegations that Baumgartner made against attorneys and judges, including himself disrespected the court although he failed to address the veracity of them. Although presumably even Elsebeth Baumgartner can express her opinion and exercise free political speech under the U.S. Constitution, Markus said that Baumgartner’s expression of personal opinion “tended to embarrass, impede and obstruct the court in the performance of its functions”.
In filing his complaint against her, Markus cited 32 references from court filings that Baumgartner had filed during the case, including accusations of case fixing and corruption against Markus, Smith, Ohio Supreme Court Chief Justice Thomas Moyer and other Ohio officials.
"As the fifth and final judge who has been subjected to her disgraceful verbal assaults in this case, this judge believes he has a professional duty to cite her for some of her criminally contemptuous acts during the time that this judge presided over this case," Markus wrote, noting during the case three sets of attorneys withdrew themselves and four judges recused themselves. "If no one seeks to halt this disruptive conduct, she has every reason to believe that no restrictions apply to her advocacy in any court."
He forgot to mention the First Amendment to both the U.S. Constitution and Ohio Constitution.
During the Smith trial, Baumgartner stated that Markus did not have jurisdiction in that he had not been legally appointed. According to court records, she also charged that he had improperly handled the case and was involved in corruption with other officials. She also asserts that retired visiting judges such as Markus have not been given jurisdiction by the Ohio State Legislature to hear and adjudicate criminal matters.
Markus continued to adjudicate the Kellen Smith case even though he later claimed that he had been intimidated by Baumgartner and filed a criminal complaint against her for intimidation, retaliation and falsification, a case which is proceeding against her in Cuyahoga County, being prosecuted by special prosecutor Daniel Kasaris in which trial is scheduled to begin March 27. Markus claimed that emails that Baumgartner had sent him criticizing his judicial performance in the Smith trial intimidated him----but apparently not enough for him to recuse himself and refrain from imposing a judgment against Baumgartner.
Although Baumgartner did not testify in her own behalf and there was no credible proof submitted against her, only hearsay evidence, Markus found her guilty and assessed a $175,000 judgment against her.
Apparently Markus is thin-skinned and thinks no one has the right to criticize him.
In a hearing earlier this week, Baumgartner told Faulkner that she had a constitutional right to counsel, including court appointed counsel if indigent, if incarceration is a possible sanction which it is in this case.
Article III of the U.S. Constitution requires that “the trial of all crimes, except in cases of impeachment, shall be by jury”. Under the Sixth Amendment, a fair trial is guaranteed as an essential part of a fair society.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process with the witnesses against him, to have compulsory process for obtaining witnesses to his favor, and to have the assistance of counsel for his defense”.
The Supreme Court has firmly established the right to counsel in virtually all aspects of state criminal proceedings and was significantly expanded in Argersinger v. Hamblin when the Supreme Court extended the right to counsel to all misdemeanor state proceedings where there is a potential loss of liberty.
The rule of law established in the Argersinger case is that an accused has a right to counsel, no matter how “petty” the offense. No judge may impose imprisonment on an accused, even if the local law and Markus law allows it, unless the accused is given counsel.
Baumgartner has served notice on the court and Faulkner that she is not waiving her right to counsel and did in fact affirmatively invoke her right to counsel because she says her ability to defend herself has been severely compromised by the actions of the state in this action and related actions involving Markus.
Baumgartner also maintains that the Constitution guarantees her the right to an impartial judge and that she continues to object to Faulkner, a retired visiting judge, presiding over the case because the underlying controversy concerns her ongoing criticism of the visiting judge system and particularly Richard Markus’s role as a rent-a-judge.
Baumgartner points out that for contempt to occur, a person must be an immediate threat to the administration of justice. She says that if Markus thought she was such an immediate threat, he should have immediately held a hearing during the trial or pressed charges against her as soon as she made her alleged comments but he didn’t. Instead he waited until he completed the trial and had awarded judgment against her.
She says there were no threats to Markus nor were there any threats to Smith’s counsel in the case.
She says that in that Markus is the one who has brought the contempt charges, that he should be the one prosecuting the case. She says that in doing research for the case she hasn’t found one case where the judge who claims contempt occurred in his court didn’t handle the charges.
Mulligan says that Markus doesn’t have to file a sworn affidavit with the court with his allegations and says that he’s never heard of a judge prosecuting contempt charges.
Dr. Baumgartner has cited numerous legal grounds for the contempt charges to be dismissed including established case law by the U.S. Supreme Court that judges cannot punish critics of the court with contempt charges.
The former lawyer says that she obtained from the Ohio Supreme Court the record of judicial assignments for Markus dating back to 1998.
"Those documents reveal a disturbing pattern of being hand-picked by sitting judges who recused themselves due to some unstated conflicts on cases involving members of organized crime, corrupt public officials and or critics of the judicial system", Dr. Baumgartner says.
"Invariably Judge Markus is very soft on organized crime figures and corrupt public officials but throws the book at critics questioning judicial practices", she charges. "What is particularly disturbing to me is how obviously the visiting judge system is being used to promote judge shopping by those with the connections to do so. There is simply no attempt whatsoever to ensure that a neutral and detached jurist is assigned the case, rather judges with an express interest in the case are chosen".
"Moreover, Judge Markus, despite being the recipient of public money as a visiting judge and having his private company's overhead paid for by taxpayers while claiming for profit status and taking advantage of tax deductions (his office is run from his home and his car bears the name of Private Judicial Services, Inc) absolutely refuses to comply with ethics disclosures concerning clients of his private judicial services company", Dr. Baumgartner continues. "Thus there is no way for a party to a case to which he is assigned as a visiting judge to learn whether Judge Markus has had prior dealings with parties or lawyers to the case wherein he was paid for services".
June Maxam 3-16-06
© 2006 North
Country Gazette
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