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OAK HARBOR, OHIO---A judge may not hold in contempt one who ventures to publish anything that tends to make him unpopular or to belittle him.
So ruled the U.S. Supreme Court nearly 60 years ago, establishing the supreme law of the land.
In what appears to be an ongoing attempt to taint a potential jury pool and wrongly use the criminal justice system and his public office to malign and attempt to discredit a critic who has levied charges of public corruption against him, Cuyahoga County prosecutor Daniel Kasaris and Ottawa County prosecutor Mark Mulligan repeatedly attempt to ridicule and prejudice their critic, nemesis and Mulligan's past opponent for prosecutor, former attorney Elsebeth Baumgartner.
Cuyahoga is an Indian word meaning "crooked".
The First Amendment case 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.
It is still unclear why Baumgartner has been indicted in the jurisdiction of Cuyahoga County as the civil trial and alleged actions at the root of the case took place in Ottawa County and on the face, it appears that the Cuyahoga County charges against both Baumgartner and her associate in the former web blog Erie Voices, Bryan DuBois, may be jurisdictionally defective.
As a matter of law, once a jurisdictional challenge is raised, all proceedings must stop until the issue of jurisdiction is resolved. So far, although Baumgartner has raised it, the judge, Common Pleas Court Judge Shirley Saffold, is sidestepping it.
Baumgartner and DuBois have also been charged in Ottawa County, charges which Mulligan is prosecuting in addition to 34 criminal contempt charges lodged against her despite the known and blatant conflict of interest which exists between Baumgartner and Mulligan.
In fact, in a prior prosecution of Baumgartner, Mulligan admitted his conflict and requested a special prosecutor. Not so this time even though a sworn affidavit detailing allegations of wrongdoing against Mulligan was filed by Baumgartner.
Mulligan, a longtime target of Baumgartner, has charged that DuBois engaged in "ongoing" activities against Charles Burns, a former superintendent of the Benton-Carroll-Salem School District who testified in late 2004 in a civil suit against Ms. Baumgartner brought against her by former school board member Kellen Smith who claimed that Baumgartner had libeled him.
Dr. Baumgartner's husband, Joseph, is also a former school board member.
Despite there being no concrete evidence and no substantial witnesses in the case, Markus awarded Smith a $175,000 judgment against Baumgartner and then filed 34 contempt charges against her months later. Baumgartner did not testify in the case. Baumgartner says the contempt complaint filed against her by Markus which went to trial earlier this year is not legally sufficient because it fails to properly inform her of the alleged criminal conduct. So far, visiting judge David Faulkner hasn't issued a decision in the contempt case.
During the 2004 civil trial before Markus, Baumgartner had 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 allegedly involved in corruption with other officials including Mulligan. 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, a position which the Ohio law supports as well as Common Pleas Court judge Nancy Russo who has filed a writ of prohibition with the Ohio Supreme Court.
In filing his 34 contempt charges against Dr. Baumgartner, Markus cited references from the court record of accusations made by Baumgartner of case fixing and corruption against himself, Smith, Ohio Supreme Court Chief Justice Thomas Moyer and other officials. Markus actually recused himself from hearing the contempt case against Dr. Baumgartner because was called as a witness in the case.
The intimidation charge now set for trial in July stems from Markus claiming that he was intimidated by an email allegedly sent to him by Baumgartner on Nov. 29, 2004, the eve of the civil trial. However, although Markus claimed he was intimidated and threatened, he failed to recuse himself from presiding at the trial and did not file a complaint against Baumgartner claiming his intimidation until four months later during the spring of 2005, about the same time he levied the contempt charges. It then took Mulligan three more months to obtain a secret indictment against Baumgartner for the alleged intimidation.
Prior to trial, Dr. Baumgartner had cited 10 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.
In an article which was published in the Port Clinton News Herald, Mulligan was quoted as saying that Dr. Baumgartner, who graduated as valedictorian of her law class, doesn't understand the law and said her motion was "frivolous".
Despite the guarantee of the Sixth Amendment of the U.S. Constitution guaranteeing her right to counsel in criminal matters, Baumgartner has been told by Ottawa County personnel that she cannot file motions on her own behalf because Judge Markus, the complainant against her, has declared her a "vexatious litigator" at the request of Mulligan.
According to the comments made by Mulligan as reported by the Port Clinton News Herald, not only doesn't Mulligan understand the U.S. Constitution but apparently doesn't believe that the rulings of the U.S. Supreme Court are the supreme law of the land, saying that she "claimed" the U.S. Supreme Court decided more than 60 years ago that judges cannot punish critics of the court.
There are in fact, at least three such pertinent rulings on the issue, Craig v. Harney 331 U.S. 367 (1947); Pennekamp v. State of Florida, 328 U.S. 331 (1946); and Bridges v. State of California, 314 U.S. 252 (1941).
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=331&invol=367
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=328&invol=331
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=314&invol=252
The charges against Baumgartner and DuBois on complaint of Markus seem to establish that Mulligan and Markus may have engaged in prohibited ex parte communications at a time when Mulligan continues to prosecute Baumgartner on Markus' complaint. As recently as last fall, Markus continued to preside in cases relating to the Baumgartner family, stating on the record that he wasn't recusing himself because he has nothing to do with the criminal matters involving Dr. Baumgartner. He's the complainant, reportedly the sole witness before the purported Grand Jury and will likely be a witness in the case.
He must have forgotten that he's the complainant in both the felony indictment and the contempt charges.
Mulligan has said that DuBois was arrested because he "continued to publish false and malicious information about (Kellen Smith) who he had initiated intimidated. In order to bring the full scope of his criminal activity before the justice system, this indictment was filed".
DuBois has copped a plea and is reportedly to receive probation in full satisfaction of the charges and in exchange for turncoat testimony against Baumgartner. However, although he was scheduled to have been sentenced earlier this month, so far it doesn't appear to have happened.
By his statements, Mulligan confirmed that he was seeking to criminalize DuBois' exercise of his First Amendment rights of free speech and free press. Mulligan publicly stated that the duo's website, www.erievoices.com, taken off the internet by DuBois over the objections of Baumgartner who had a financial interest in the business, was the basis for DuBois being charged with continuing to harass Burns with alleged false postings on the site. DuBois had claimed that Burns engaged in perjury when testifying at the Smith libel trial last fall.
In a criminal matter, the burden of proof is upon the People who must prove beyond a reasonable doubt that that DuBois published false and malicious information about Smith and Burns so therefore must prove that the allegations made are false. In that the basis for the allegations appears to be defamation, the venue of such disagreements would be in a civil court, not to criminalize the writings on a blog. In that both Mulligan and Markus will undoubtedly be examined at witnesses in the case, both would be required by law to immediately remove themselves from all matters, civil and criminal, as prosecutor and judge in matters relating to Baumgartner and DuBois. So far, that hasn't occurred.
It appears that the repeated filing of criminal charges against Dr. Baumgartner may be intended to drain her of funding. This is a common tactic used by public officials against their critics nationwide. In that the public officials can use the resources of the taxpayer and the public coffers to fight their critics, they can wrongfully wield the power of their office and fight their detractors at no personal charge to them which opens the door to charges of alleged case fixing for political gain and profit. The public officials, while feeding at the taxpayer trough, can intentionally prolong the legal proceedings in what one legal reformer has called the "litigation vortex" and in effort to financially disable their critics.
Some legal reformers maintain that there is a "gamebook" so to speak for public officers to use the court system to silence their critics, including disbarring whistleblowing attorneys and attempting to shut down the publications of crusading journalists by imprisoning the publishers.
In Craig v. Harney, the petitioners were a publisher, an editorial writer and a news reporter of newspapers published in Corpus Christi, Texas.
"The County Court had before it a forcible detainer case, Jackson v. Mayes, whereby Jackson sought to regain possession from Mayes of a business building in Corpus Christi which Mayes (who was at the time in the armed services and whose affairs were being handled by an agent, one Burchard) claimed under a lease. That case turned on whether Mayes' lease was forfeited because of non-payment of rent. At the close of the testimony each side moved for an instructed verdict. The judge instructed the jury to return a verdict for Jackson. That was on May 26, 1945", the decision said.
"The jury returned with a verdict for Mayes. The judge refused to accept it and again instructed the jury to return a verdict for Jackson. The jury returned a second time with a verdict for Mayes. Once more the judge refused to accept it and repeated his prior instruction. It being the evening of May 26th and the jury not having complied, the judge recessed the court until the morning of May 27th. Again the jury balked at returning the instructed verdict. But finally it complied, stating that it acted under coercion of the court and against its conscience. On May 29th Mayes moved for a new trial. That motion was denied on June 6th.
"On June 4th an officer of the County Court filed with that court a complaint charging petitioners with contempt by publication. The publications referred to were an editorial and news stories published on May 26, 27, 28, 30, and 31 in the newspapers with which petitioners are connected The trial judge concluded that the reports and editorials were designed falsely to represent to the public the nature of the proceedings and to prejudice and influence the court in its ruling on the motion for a new trial then pending. Petitioners contended at the hearing that all that was reported did no more than to create the same impression that would have been created upon the mind of an average intelligent layman who sat through the trial. They disclaimed any purpose to impute unworthy motives to the judge or to advise him how the case should be decided or to bring the court into disrepute. The purpose was to 'quicken the conscience of the judge' and to 'make him more careful in discharging his duty".
The high court held that a trial is a public event." What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. And we can see no difference though the conduct of the attorneys, of the jury, or even of the judge himself, may have reflected on the court. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it".
"Even if the former were guilty of contempt, freedom of the press may not be denied a newspaper which brings their conduct to the public eye", the court held.
"But a judge may not hold in contempt one 'who ventures to publish anything that tends to make him unpopular or to belittle him'".
'Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.' Bridges v. State of California, supra, 314 U.S. at page 271, 62 S.Ct. at page 197, 159 A.L.R. 1346. But there was here no threat or menace to the integrity of the trial. The [331 U.S. 367 , 378] editorial challenge the propriety of the court's procedure, not the merits of its ruling. Any such challenge, whether made prior or subsequent to the final disposition of a case, would likely reflect on the competence of the judge in handling cases. But as we have said, the power to punish for contempt depends on a more substantial showing. Giving the editorial all of the vehemence which the court below found in it we fail to see how it could in any realistic sense create an imminent and serious threat to the ability of the court to give fair consideration to the motion for rehearing".
Apparently Markus didn't think so either at the time as not only did he not recuse himself but he waited four months before filing any complaint. In fact, by filing the complaint, he has now indicated that he was biased at the time of the ruling and had been influenced against Baumgartner which undoubtedly denied her a fair trial and would serve as grounds to seek a new trial based on new evidence.
While accusations have been hurled at Dr. Baumgartner by both Mulligan and assistant Cuyahoga County prosecutor Dan Kasaris concerning her mental fitness, a judge has ruled on multiple occasions after examination that she is competent to represent herself and can do so. Perhaps the more pertinent argument is the mental fitness of Markus, Kasaris and Mulligan to not only continue in matters relating to Dr. Baumgartner but their overall fitness to bring the charges against them and to remain on the bench. June Maxam 5-23-06
© 2006 North
Country Gazette
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