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PORT CLINTON, OHIO---Appearance of impropriety?
The panoply of ethics violations continued in Ottawa County Common Pleas Court Monday where former Oak Harbor attorney Elsebeth Baumgartner is on trial for the criminalization of her free speech rights for criticizing a judge.
Baumgartner is on trial for 34 counts of contempt although visiting Harden County judge David Faulkner refuses to define whether the charges are criminal or civil in nature. He has denied Baumgartner a jury trial, has said she must represent herself in the matter and that the civil standard of proof will be applicable rather than the criminal standard of beyond a reasonable doubt. A civil docket case number has been assigned.
The complainant in the case, retired visiting Richard Markus has already testified that the charges are criminal because she purportedly used them to distract him and others from handling her court cases.
The Supreme Court has held that a person is entitled to a jury trial and counsel anytime their liberty interests are at stake. If convicted of all 34 counts, Baumgartner faces up to 30 days in jail on each count and a $250 fine---all told, 290 days and a $8,500 fine.
The trial had begun on March 22 and been adjourned until Monday after the complainant Richard Markus had testified as did Baumgartner.
Baumgartner’s husband, Joseph, had been scheduled to testify as a defense witness but Baumgartner withdrew him after prosecutor Mark Mulligan’s intimidation of the witness, saying that if Joseph Baumgartner testified, he would be waiving spousal immunity and could be subject to be questioned about any matter, whether or not it was relevant to the charges at issue.
Called as a surprise defense witness was Kellen Smith. The contempt charges levied by Markus had emanated from a libel trial in December, 2004 brought against Dr. Baumgartner by Smith, a former member of the Benton-Carroll-Salem Board of Education, the same school board of which Dr. Baumgartner’s husband had been a member.
Even after he had filed his contempt charges against Baumgartner and then his criminal complaint against her, Markus continued to handle matters relating to the Smith libel case. Although Dr. Baumgartner did not testify in her own behalf at the civil trial and there was no credible proof submitted, Markus found Baumgartner guilty in what many said was a pre-determined decision, and assessed a $175,000 judgment against her.
Following verdict, he cited her for 34 counts of contempt as a result of her allegedly calling him corrupt and Markus then cited her husband for contempt. Markus then also filed a criminal complaint against Dr. Baumgartner, claiming that she had intimidated him and threatened him before the libel trial by sending him emails. However, although he claimed he felt threatened and intimidated, he failed to disqualify himself for the trial and lodged the judgment against her and then tried to help Smith collect the judgment.
On Monday, over the objections of Mulligan, Faulkner allowed Baumgartner to introduce 12 key exhibits from other court cases.
The trial concluded Monday but Faulkner will purportedly not begin his deliberations for over a month.
Baumgartner and prosecutor Mulligan will have two weeks to file briefs in the case and Mulligan would than until May 8 to file his final response brief.
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 Faulkner has refused to remove him.
Baumgartner maintains that she, as well as others, has the constitutional right to criticize a judge or other public official. 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.
Baumgartner has raised issues on the record concerning jurisdiction and the automatic stay on the proceedings by operation of law due to her filing of a Chapter 13 bankruptcy action in Toledo. That action has now been moved to Youngstown, Ohio, over 150 miles away.
The alleged misconduct of Common Pleas Court judge Judge Paul Moon in making highly prejudicial and prohibited public comments about Dr. Baumgartner last week appeared to deny her right to presumption of innocence and fair trial rights by intentionally, recklessly and willfully engaging in a character assassination of her in the press.
Moon, pandering to the obviously biased Port Clinton News Herald, claimed in an article published March 30 that Baumgartner had breached security at the courthouse last week because she allegedly entered the office of court attorney Charles Munoz which is adjacent to Moon’s office. Moon readily admits that he has no idea why she went to the office, if she did, or what was discussed which establishes a reckless disregard for the truth.
His published comments appear to be sufficient not only to demand that a mistrial be declared in the pending case and any and all charges against Baumgartner in Ottawa County dismissed, but grounds exist to immediately suspend Moon from office pending an investigation. 4-04-06
© 2006 North
Country Gazette
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