|
One of the nation’s most important cases dealing in judicial corruption and First Amendment issues will take center stage on Monday, March 27 in Cuyahoga County in northern Ohio.
Or will it?
Can Ohio officials afford to have the case proceed to trial, a jury trial by her peers no less?
Judicial whistleblower Elsebeth Baumgartner of Oak Harbor, former attorney  and pharmacist until the powers-that-be, angered by her allegations and substantiation of public corruption, stripped her of her professional licenses, is scheduled to begin trial on 18 criminal charges of intimidation, retaliation, falsification and possession of a criminal tool--a laptop computer--based on the complaint of retired visiting judge Richard Markus for criticizing him.
She’s been indicted on 14 more counts of intimidation and retaliation for alleged postings on her own blog on complaint of her former business partner who’s a co-defendant in the pending case.
Cuyahoga County is Ohio’s most populous county and ranks 23rd in population among the 3,141 counties in the United States. Nearly 1.4 million people reside in and around Cleveland, the primary city in Cuyahoga County.
Across the nation, judges are running amok, engaging in a rape and pillage of the U.S. Constitution, abusing the laws, their gavel and their black robe to terrorize, retaliate and intimidate members of the citizenry who have the courage to stand up to their arbitrary and wrongful rulings, to the cover-ups of abuse and corruption in the justice system and to their abuse of parties whom appear before them seeking
justice and redress of grievances.
But in Ohio, the judges are claiming it’s the citizens who are intimidating the judiciary because they use their voice, blogs, computers, emails---and exercise those freedoms guaranteed them by the Bill of Rights—freedom of speech, expression and press.
Public confidence in the judiciary is eroding from the town courts to the Supreme Court and members of the judiciary have no one to blame but themselves.
And it appears that Ohio isn’t exempt from a runaway judiciary. In fact, it appears that Ohio might be leading the pack.
The powers-that-be in Ohio, where the spotlight on public corruption has been aglow with ethics convictions of Gov. Bob Taft, the indictment of GOP fundraiser and Taft appointee Thomas Noe and an ongoing federal investigation of attorney general Jim Petro in an alleged pay-to-play scheme, have attacked Baumgartner repeatedly, trying to discredit her and have unsuccessfully tried to label her incompetent, trying to make her exposure of their wrongdoing go away.
But Baumgartner has been psychologically evaluated at least three times and found competent, the most recent following incarceration and involuntary commitment in the state mental hospital over Christmas although state law requires that a person released on bond, as Baumgartner is, be evaluated on an out-patient basis.
When one listens to Baumgartner discuss the legal issues, the allegations of corruption, its evident she’s well in control and extremely knowledgeable of her topic.
http://xml.rbnlive.com/Greg/0603/20060324_Fri_Greg1.mp3
Baumgartner was among the first to point a finger at Noe, Taft and others in Ohio government, state and local, exposing alleged public wrongdoing. The arrest and prosecution of those officials validates her allegations which were made as early as 2001.
But there are many more in the system, especially the judicial and legal system in northern Ohio, that haven’t been arrested----yet.
The docket in her case online on the Clerk of the Courts website at www.cuyahogacounty.us is marked “case closed”.
But the trial is scheduled to get underway Monday at 9 a.m.
The North Country Gazette has learned that the prosecutor in the case, Daniel Kasaris, who is performing the duties of an assistant Cuyahoga County prosecutor, secured yet another indictment against Baumgartner last week, carrying 14 more charges of intimidation, retaliation, falsification and possession of a criminal tool, for postings that she allegedly made on her own website, ErieVoices.com.
Kasaris brought those charges after seizing the computers and business and personal records of Baumgartner and now he has reportedly informed her attorney, Jeffrey Kelleher, that he has no intention of giving Baumgartner back her computers which contain not only her personal and private records as well as business records for Erie Voices, but also her years of research and documentation of allegations of corruption in the judiciary and prosecutorial offices of northern Ohio in addition to legal research for the defense of the charges against her.
 In a stunning discovery Friday, The North Country Gazette learned that not only is Kasaris allegedly performing the duties of the prosecutorial office illegally, but apparently so are the other 300 assistant county prosecutors who have been appointed by Cuyahoga County prosecutor William Mason.
In responding to a request for public information, Keith Hurley, chief deputy for the Cuyahoga Clerk of the Courts, advised that there was no oath of office or bond on file for Kasaris nor was there any bond on file for Shirley Strickland Saffold, the presiding judge in the Baumgartner case, or prosecutor Mason.
“I am not aware of any requirements for oath or bond for assistant prosecutors”.
It would seem reasonable that not only should the courts be aware of the provisions of the Ohio state Constitution but also Ohio Code.
After all, if the courts and the judge is sitting in judgment of a person with control of their life and liberty, it would be expected that that court and judge not only know the law, but comply with it and that includes all officers of the court including prosecuting attorneys.
Section 3.22 of the state code states that “each person chosen or appointed to an office under the Constitution or laws of this state, and each deputy of such officer (which includes assistant prosecutors) shall take an oath of office before entering upon the discharge of his duties”.
Article XV, Section 7 of the state Constitution provides that “every person chosen or appointed to any office under this state, before entering upon the discharge of its duties, shall take an oath or affirmation, to support the Constitution of the United State and of this state, and also an oath of office”.
Maybe Kasaris thinks that because he hasn’t taken the requisite oath, he doesn’t have to uphold and support the Constitution, particularly the First Amendment.
The bottom line is that it appears that not only has Kasaris by law forfeited the office of assistant prosecutor in Cuyahoga County but may have totally lacked all authority and jurisdiction to have taken any action against Baumgartner----or anyone else for that matter----since he has performed the duties of assistant prosecutor.
Hurley says that the oaths of Mason and the judge in the Baumgartner case, Shirley Strickland Saffold, are on file in his court, but not their bonds. With Mason having filed his oath, he’s obviously aware that he’s required to take and file an oath.
So why aren’t there any oaths filed with for his 300 assistants as required by law?
The law says that he’s responsible for the neglect or misconduct in office of his deputy or clerk. In that Mason presumably appointed Kasaris his assistant, Mason is liable for Kasaris and that creates a huge conflict of interest in the Baumgartner case---in fact, may be enough to dismiss the entire case for governmental wrongdoing.
Section 3.30 of the state code cites that failure to file a bond is a refusal of the office, vacated by operation of law. Any person elected or appointed to an office who is required by law to give a bond or security before performing the duties of the office, who refuses or neglects to give such bond within the time and manner prescribed, fails to qualify for the office and is, by operation of law, deemed to have refused to accept the office to which he was elected or appointed. Such office is considered vacant. Section 309.11 of the state code requires prosecuting attorneys such as Mason to prepare and file the official bonds for all county officers---which includes his own assistants. Section 309.05 provides for the removal of prosecuting attorneys for willful failure to perform the duties of the office.
Section 3.07 of Ohio Code calls for the forfeiture of the office and creates a charge of misconduct against the officer.
So just who should be on trial Monday---Kasaris and Mason or Baumgartner?
Anyone in public office in Ohio, whether it be an elected or appointed position, who exercises authority or power not authorized by law, neglects to enforce the law or perform any official duty imposed upon him----such as taking and filing an oath of office before performing the duties of the office-----is guilty of misconduct in office, pursuant to state statute.
Following a complaint and a hearing, a judgment for forfeiture in office is levied, a vacancy declared, to be filled as prescribed by law. The proceedings are in addition to impeachment and other methods of removal of public officers as authorized by
law.
It would appear that pursuant to law, that Kasaris lacked legal authority to perform any of the duties of a prosecutor in the Baumgartner case which included seizing Baumgartner’s computers--challenged as an unlawful Fourth Amendment seizure-- presenting any matter against her to a grand jury or levying any charges against her.
All told, Baumgartner now faces up to 112 years in prison, basically for having using her computer to send Judge Markus emails asking him to fairly perform his judicial duties, criticizing his past acts and accusing him of case-fixing. The new charges are for allegedly responding to defamatory messages which had been posted against her and her family on her own blog while she was lodged in the state hospital for competency evaluation. Virtually every time Baumgartner exercises her freedom of speech in Cuyahoga County, Kasaris files a criminal charge on her.
The complainants in the latest round of charges?
None other than her former business partner, Bryan DuBois, 28, and his wife, Mandy, of Sandusky. DuBois is also the co-defendant in the matters scheduled to begin trial Monday and according to court records, DuBois and his wife have become government witnesses against Baumgartner in exchange for a plea deal for DuBois which is expected to be entered Monday. As of yet, the cases have not yet been severed from each other.
It would appear that Baumgartner not only has a strong First Amendment defense but has a prima facie case against the DuBoises for intimidation and retaliation as well as a civil libel and defamation case.
DuBois was the editor of ErieVoices, a blog which focused on judicial and political corruption in northern Ohio. The blog, website and business was owned by Arbor Group LLC, primarily financed by Baumgartner who also wrote for the site.
The blog focused on judicial and political corruption in northern Ohio. Last July, Baumgartner and DuBois were charged with multiple felonies in a secret indictment obtained by Kasaris whose boss, prosecutor Bill Mason, had been the target of misconduct allegations by Erie Voices.They were arrested on the secret indictment the day after they served a federal lawsuit against Gov. Taft and other Ohio officials, and the day after DuBois sent an email to the Cuyahoga County Commissioners detailing how Cuyahoga County prosecutor Mason and Erie County prosecutor Kevin Baxter were allegedly exchanging “special prosecutor” appointments on political cases. DuBois had also filed a grievance against Kasaris and Markus with the Cuyahoga County Bar Association.
Kasaris then became the prosecutor against the bloggers with Markus as the complainant in the case, albeit Markus’ complaint against them came months the alleged incident.
It appears that it should have been Markus and Kasaris who were indicted for intimidation and retaliation against DuBois and Baumgartner, for using their public positions to get even with the pair for having had the audacity to file a complaint against them-----a significant chilling of the bloggers’ First Amendment rights.
DuBois says that witnesses have told him that following a court hearing last year in Cuyahoga County, Kasaris allegedly admitted to them that Markus, 75, had pulled Kasaris aside, handed Kasaris a file on Baumgartner and DuBois, allegedly described them as a “problem” that “needed to go away”.
So in Ohio what constitutes intimidation? The statute on the books is vague and overboard, not yet tested for its constitutionality. It states that “no person, knowingly and by force, by unlawful threat of harm to any person or property, or by filing, recording or otherwise using a materially false or fraudulent writing with malicious purpose , in bad faith, or in a wanton or reckless manner, shall attempted to influence, intimidate, or hinder a public servant, party official or witness in the discharge of the person’s duty.
Therefore, in that the burden of proof is on the prosecution, it’s up to Kasaris and Markus to prove that Baumgartner’s allegations of case fixing and improper actions by Markus aren’t true or in order words, the burden of proof is on Markus to prove that his actions as a private rent-a-judge while at the same time acting as a public officer are ethical and correct. It appears with the leveling of new charges against Baumgartner, the prosecution may be afraid to proceed to trial, knowing that their case is constitutionally weak and fatally flawed and instead be trying to intimidate Baumgartner into accepting a plea deal by threatening her with over 50 years of incarceration.
Erie County prosecutor Kevin Baxter, a long-time nemesis of Baumgartner, had recused himself from prosecuting criminal charges against her in Erie County for grand theft for allegedly stealing her own corporate vehicle. Baxter then appointed Kasaris to act as a special prosecutor, an appointment in itself illegal. With Baxter already acknowledging a conflict of interest, he exacerbates the conflict by illegally hand-picking who he wishes to prosecute Baumgartner. Such appointments by law are made by the court and approved by the county commissioners.
Kasaris himself had been the subject of frequent criticism on Erie Voices. In September, Baumgartner and DuBois accused Kasaris of submitting a forged indictment in their case the day before a pre-trial hearing. More specifically, the bloggers claimed that the grand foreman's signature was forged, contained numerous misspellings and does not resemble other Cuyahoga County indictments.
Baumgartner had been sent to Cuyahoga County jail following her arrest last summer where she spent 10 days in solitary confinement until the presiding judge in the case, Judge Saffold reduced her bond from $360,000 cash only to $25,000. The request for solitary confinement and the large bail bond was later learned to have been made by Kasaris, with such high bails traditionally only for capital murder cases. DuBois' bail was originally set at $150,000 at the request of Kasaris but was later reduced. DuBois had no previous criminal record.
Kasaris labeled them as “paper terrorists”, apparently because they legally exercised their constitutional right to seek redress of grievances by legally challenging public officials with legal filings to have the matters heard in a court of law.
At first, Kasaris stated the Erie Voices website was not a factor in the arrest of the pair. But last fall, he said if DuBois stopped writing for the site and stopped associating with Baumgartner, he’d reduce the felony charges he brought against DuBois to a misdemeanor.
And that’s exactly what has happened although not until February.
According to an application for a search warrant, filed with the Ottawa County Municipal Court in February by an investigator with Mason’s office, DuBois and his wife were working behind Baumgartner’s back as government agents as early as September and may have in fact engaged Baumgartner in a self-serving entrapment scheme at the behest of Kasaris and Markus.
The warrant application states that according to documents filed in Erie County Common Pleas Court, DuBois and his wife had been government witnesses against Baumgartner as early as September, 2005, a month after Bryan DuBois was indicted, and were listed as witnesses against her in the Erie County theft and related charges. In fact, allegations have surfaced that Mandy DuBois may have been the complainant in the incident which led to Baumgartner being charged with theft of her own automobile as Mrs. DuBois may have been motivated by jealousy of the business relationship between her husband and Baumgartner.
In early January, 2005, Mandy DuBois had filed a complaint of domestic assault against her husband with the Sandusky Police Department and later began a divorce action. She later withdrew the assault complaint, stopped the divorce action and then apparently began working with officials against Baumgartner.
The warrant application indicates that the DuBoises were also scheduled to testify against Baumgartner in the Cuyahoga County case which had been scheduled to go to trial Dec. 12 but was postponed after Judge Saffold ordered that Baumgartner be committed for evaluation. The application states that on that date, DuBois provided additional evidence against Baumgartner, apparently to further his own interest. There is no indication in the warrant application what promises or offers have been made to DuBois in exchange for his testimony against his formerbusiness partner.
Baumgartner has provided proof that she and her husband paid for a large share of the legal retainer fee for DuBois to engage an attorney and alleges that he has misappropriated corporate funds totaling nearly $50,000 for his own personal use.
Baumgartner was confined from Dec. 12 until Jan. 19 during which time numerous defamatory postings were made at the ErieVoices.com website against her and her family to which she could not have responded due to her involuntary confinement. The warrant application specifically refers to postings on the blog---an exercise in freedom of speech, expression and press expressly protected by the First Amendment, and claims that Baumgartner made anonymous derogatory postings on the blog directed towards Mandy DuBois.
In December, DuBois severed all ties with Baumgartner and in February, removed the website from the Internet although the domain name was registered in the name of Arbor Group of which Baumgartner was a principal.
Last September when Baumgartner claimed that the indictment in her intimidation case was forged, Kasaris then attempted to withdraw it, citing a defect but Baumgartner, then representing herself, refused to allow him to substitute indictments. Kasaris then re-indicted the bloggers, an action which was done even without the knowledge of the judge. By law, a person must be given notice of the presentment of any charges against them to a grand jury and be afforded the right to testify before the grand jury.
Kasaris argued that a prosecutor could withdraw an indictment for a “defect” and re-indict defendants. However, Baumgartner said the indictment wasn’t “defective” but rather a complete forgery. She contends that Kasaris circumvented the Grand Jury process in order to bring the criminal charges against her and DuBois because of their articles concerning alleged misconduct and corruption in the Cuyahoga County prosecutor’s office.
“If I forge a personal check, can I defend myself by saying that the forged signature on the check is merely a defect?”, Baumgartner asks. “If Kasaris forged that indictment, he did so in order to bypass the Grand Jury which exists solely to protect our citizens from out-of-control prosecutors like Kasaris. And that is the most egregious act that could ever be committed by a professional”.
Although Markus claimed he was intimidated by Baumgartner’s emails, he did not recuse himself from presiding at a November, 2004 civil trial in which he ruled against Baumgartner and entered a $175,000 judgment against her. Although he claims he felt threatened, he waited over seven months before filing a complaint against the bloggers in separate incidents and didn't recuse himself from Baumgartner's trial as ethics rules demand. In the meantime, he filed 34 counts of criminal contempt against Dr. Baumgartner for criticizing him and other public officials.
The charges against DuBois purportedly relate to a note he allegedly handed former School Superintendent Charles Burns after Burns testified against Baumgartner during the 2004 libel trial in which Burns had sued Baumgartner. DuBois maintains he can prove that Burns allegedly committed perjury. June Maxam 3-25-06
All rights reserved. This article may not be published, broadcast, reprinted or reproduced without the express written permission of the author and publisher.
© 2006 North
Country Gazette
|
