Originally Posted - June 7, 2006

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"In Heaven, there is no law because there's no need for law. The better a person is, the less law you need but in Hell, there's nothing but law".

And with those words, retired visiting judge Richard Knepper was in essence telling judicial whistleblower and civil rights activist Elsebeth Baumgartner that she was in Hell in his courtroom, he's already adjudged her guilty before trial.

So much for a fair and impartial judge.

So much for the U.S. Constitution.

More than sufficient grounds for the handling of the whole Baumgartner case to be reviewed by the Civil Rights Division of the U.S. Department of Justice.

Disbarred attorney Dr. Elsebeth Baumgartner, a long-time vociferous critic of government in northern Ohio and in particular Erie County prosecutor Kevin Baxter and the county courts, was scheduled to begin trial last Thursday, June 1 in Erie County Common Pleas Court before Knepper despite the law that prohibits visiting judges from adjudicating criminal trials.

Instead of her case proceeding, Knepper with a demonstrative bias against her, sentenced her to jail for 45 days on a direct contempt charge, saying that she was obstreperous or in other words, noisy and clamorous after Baumgartner had moved for his recusal due to a prohibited pecuniary interest in the case directly related to Baxter.

It was a year ago this month that Baumgartner was arrested and charged with a probation violation for entering a courthouse, for grand theft of her own corporate vehicle which she had financed, resisting arrest and felony fleeing, being in fear of her life after a police officer threatened to use her police baton to break in the windows of the vehicle in which Baumgartner was sitting. She was arrested following a low speed chase for which no traffic citations were issued. http://www.northcountrygazette.org/articles/052906OhioWhistleblower.html

Baumgartner had filed pre-trial for an order suppressing all evidence obtained and dismissing the charges on grounds that officers and or agents of the Village of Bay View Police Department, Ottawa County Sheriff's office and Ohio Highway patrol had unlawfully detained her on May 20, 2005 pursuant to an unlawfully issued bench warrant and without observing any conduct which would lead them to conclude that criminal activity may be afoot or that she may be armed and dangerous. She had requested a suppression hearing prior to trial and was representing herself in the matter although she had served notice on the prosecution that if her suppression hearing was not granted, that she would be retaining counsel to represent her at trial.

The underlying arrest warrant, which appears to be totally invalid, is the result of the arrest and conviction of Baumgartner for making false statements at a July 2002 public meeting of the Port Clinton city council about investors in an Erie County ferry company in which Erie County prosecutor Kevin Baxter has a financial interest. She was jailed in 2003 for five months for violating her probation by continuing to criticize government officials. In September, 2003, she was disbarred by the Ohio Supreme Court.

Baumgartner had appeared before the council on Jan. 2, 2002 and urged the council not to enter into a contract for dockage with Island Express Boat lines, a company in which Baxter had a 30% interest. Baumgartner alleged that he had used the influence of his office to apply for a $500,000 grant for the boat lines.

In an exclusive interview with The North Country Gazette Wednesday, conducted telephonically with Baumgartner who is being held at the Erie County Jail in Sandusky, Baumgartner said that Knepper had moved the courtroom proceedings into a private courtroom and barred her husband as well as all members of the public from being present. She said that Knepper then announced that he was conducting a hearing on motions that special prosecutor Daniel Kasaris, handpicked by Baxter, had filed but she said she had not been served copies of the motions and had not had a chance to read them or file a response. She said she tried to protest the denial of due process to Knepper, saying that no ruling had been made on her suppression motion and that it was moot to conduct a hearing on further motions.

She says Knepper informed her he wasn't going to hear her suppression motion and refused to issue a ruling on it. "The judge starts in on me, it was bizarre", she said. "He talks how he's going to bind and gag me again". She says he gave no reason for refusing to hear her suppression motion.

"I said okay, it's obvious you're going to grant all of Kasaris' motions so let's go to trial". She said Knepper than made a strange statement about religion, mocking her Christian beliefs. "When I said I was a Christian rights advocate, he mocks me and starts laughing. Then he makes a statement. 'Here's one of my favorite quotes, Ms. Baumgartner, in heaven, there is no law because there's no need for law. The better a person is, the less law you need but in Hell, there's nothing but law'".

"In other words, you're in hell is what he was telling me", Baumgartner said. "This judge was the appellate judge who had denied every single one of my appeals in the case on which the warrant in this case was based". She said he then found her in contempt of court for being "obstreperous".

"He told me he had listened to my psychotic ramblings and he was sentencing me to 45 days in jail for direct contempt of court". He also claimed that she had improper communications with potential jurors.

Baumgartner said that when she had walked into the "big courtroom", before Knepper had transferred the proceedings to a private courtroom, there were some people seated in the back of the room. She said she was expecting some Christian civil rights activists to attend from Cleveland on her behalf. "I introduced myself and asked who they were, are you my people from Cleveland. They introduced themselves, said no, they were jurors. And I said, 'oh, I'm sorry to have bothered you' and that was it". For that, she was found in contempt for improper communications with jurors.

She said that Knepper and Karasis became highly agitated when she stated on the record that she had been sentenced and had already served more days for contempt than Harold Butcher had served for stalking a black 14-year-old girl for sex.

Republican Erie County Commissioner Harold Butcher, then 69, former school superintendent, had pleaded guilty in 2002 to a misdemeanor charge of menacing by stalking in a plea deal arranged by Karasis and Baxter. In exchange for a guilty plea, felony charges of compelling prostitution for allegedly soliciting sex from the girl were dropped and Butcher, who refused to resign from his public post, was sentenced to 30 days of house arrest, fined $1,000. He was allowed to attend regular and special meetings of the commission and to go to medical appointments and scheduled meetings of Alcoholics Anonymous twice a week.

Baumgartner said that just previous to Knepper finding her in contempt, Judge Tygh Tone had entered into the private proceeding through a back door and seated himself in the jury box. Tone had disqualified himself from the Baumgartner case previously, claiming that he had conflicts of interest, although failing to state them on the record. She said that despite admitting his conflict, Tone had continued to enter judgment entries for Knepper in his absence. She says that Tone's former law firm had represented Baxter's ferry boat line.

Baumgartner says that in his private rent-a-judge service, Knepper's clients have included Murray and Murray and Eastman & Smith, firms that she says assisted Baxter and Island Express. With Baxter and the boat line as the basis for the original charges against Baumgartner, ethics rules would preclude not only Tone but Knepper from hearing the charges against Baumgartner.

And then there's the issue of Knepper as a retired visiting judge handling a criminal matter when the two Common Pleas Court judges are available. Tone had previously issued a statement saying that Knepper had been retained by the county as private mediators for civil cases. Tone had said in a statement in 2005 that he and Common Pleas Court judge Roger Binette had "done away with visiting judges" unless both sitting judges have a conflict of interest in a case.

Not only does Ohio law preclude a retired visiting judge from adjudicating a criminal matter but in this case, the county court judges do not have conflicts and have not disqualified themselves. It appears that officials have hand picked Knepper to handle the Baumgartner proceeding and it appears that concentrated efforts are being made to keep the matter from going to trial.

Knepper has in essence, ruled that Baumgartner is incompetent without any medical finding. Instead of going forth with the trial which it seems obvious that he does not wish to do, no doubt because of the suppression motion and the prior statements of Ottawa County Sheriff Robert Bratton that the underlying warrant is invalid, Knepper has ordered that Baumgartner undergo yet another psychiatric evaluation---her fourth---and has scheduled a competency hearing for July 17, leaving her incarcerated for the Cuyahoga intimidation charges on the complaint of Judge Markus and the DuBoises, scheduled to go to trial on July 10. Baumgartner has been found competent in all previous evaluation but diagnosed with a stress disorder due to the legal abuse to which she is being subjected. http://www.northcountrygazette.org/articles/060606AttorneyClient.html

Prior to the June 1 proceeding, Baumgartner had informed Kasaris that if her suppression motion was denied, then she would move for dismissal on speedy trial rights and disqualification of Kasaris for prosecutorial misconduct, selective prosecution and bad faith prosecution. However, the night before the trial was to open and before she could finalize her motions, Baumgartner said that her computer was shut down by an overpowering virus.

She had also stated in writing to Kasaris in a request for a conference call, which Kasaris ignored, that "I am not capable of representing myself at trial in this matter should it go to trial. I am not a trial attorney and in view of your threats to use my statements against me as well as recent internet death threats linked to this case which have severely exacerbated my stress disorder, the court would be duty bound to ensure I'm represented by counsel at trial".

Instead, Knepper violated her Sixth Amendment rights along with her right to due process and incarcerated her. In her pre-trial communication to Kasaris, she again argued that there was and is no affidavit in support of the issuance of the bench warrant by Judge Richard Adkins on Jan. 30, 2004 which is the basis of the charges. "I asked you [if you were] conceding the fact that the warrant was issued without an affidavit in support of probable cause. You didn't answer the question and you have not produced the affidavit".

Baumgartner had cited two Ohio Supreme Court rulings regarding the validity of arrest warrants and the applicability of the Fourth Amendment. "I maintain that because the bench warrant was issued without probable cause or a probable cause determination from Ottawa County Municipal Court and pursuant to the Exclusionary Rule, that this case must be dismissed due to an unlawful arrest. Notice of an alleged probation violation should have been issued from the court instead of a warrant. She also cited a ruling made on May 12 by Judge Binette in State v. Ohly which reviewed the due process requirements to revoke probation as mandated by the U.S. Supreme Court. The case states there has to be notice of written charges, disclosure of evidence, opportunity to be heard, right to confront and cross examine, provide probationer with a neutral and detached hearing body and a written statement as to the evidence relied upon and the reasons for revoking probation.

"The issue in my case is Judge Adkins revoked my probation by issuing a bench warrant for arrest without complying with the due process protections or the Fourth Amendment. This is the third time Judge Adkins violated the law and issued a warrant and it's the same issue which was placed squarely before Judge Knepper in several appeals and writs concerning the same underlying misdemeanor case dating back to December 2002. Then the 6th District Court, the basic law cited to you in the prior cases, was ignored in my cases. Now he's assigned this case as a retired visiting judge and he is required to rule on the issues presented which he declined to rule upon in the past, to wit: May a warrant for arrest issue without an affidavit in support of probable cause and may a Municipal Court judge revoke probation by issuing a bench warrant without complying with the due process protections of Gagnon v. Scarpell".

Instead of addressing the suppression motion and the law, Knepper and Kasaris both sidestepped the issues of law and planted Baumgartner in jail for trying to exercise her Sixth Amendment right to counsel.

"The Court is required to hold the suppression hearing prior to proceeding to trial in this case", Baumgartner had told Kasaris pre-trial "If you don't have an affidavit in support of the bench warrant issued January 30, 2004, I do not see how the State can prevail nor how Judge Knepper can allow you to proceed because he is duty bound to dismiss the case pursuant to Mapp v Ohio and progeny".

Baumgartner also charged that Kasaris had made himself a witness in the proceeding by incorporating records from Cuyahoga County and violating her HIPAA rights. "If you want to use statements fro this case against me in Ottawa and Cuyahoga Counties then you would be required to be disqualified in Cuyahoga too".

"Moreover, you continue to invade my attorney client privilege and work product by holding on to all my computerized legal records including records related to this case. You have violated attorney client privilege and the court is required to disqualify you from this case for conduct contrary to the administration of justice. I will be submitting a motion seeking your disqualification to the Court pre trial".

But she never got the chance as a virus invaded her computer and shut it down. She says the virus came into her computer via an email from Kasaris. And then Knepper shut her down by ordering her to jail.

On May 30, two days before the trial was to begin, Kasaris had denied her discovery in the case, telling her she was not entitled to witness statements until after the witness had testified, therefore she has no way to attempt to impeach the witness. He also advised her that she was not entitled to copies of police reports. He said that although he had copies of the police reports from the night of her arrest, that he was considering them witness statements and was refusing to release them to her. He told her she would be entitled to see them only after the witness testifies and then only if Judge Knepper allowed her to see them if the judge determines that there might exist "inconsistencies between the testimony and the report", in effect the judge and prosecution controlling her right to confront witnesses and present a defense.

Kasaris then complains that Baumgartner did not "reveal the fact" that nobody complained their car was stolen and that there was "no basis for the grand theft charge as you knew back in June 2005". He also claims that Baumgartner withheld from him a newspaper article appearing in the Port Clinton News Herald in June 2005 in which Ohio Highway Patrol Sgt. Tony Meyers stated that Sheriff Bratton's statements concerning alleged recklessness and high speeds were false". Baumgartner was not charged with any motor vehicle charges from the low speed chase.

The issue concerning ownership of the vehicle has been well publicized both at ErieVoices.com and The North Country Gazette as well as various Ohio publications such as the Sandusky Register and Port Clinton News Herald since Baumgartner's arrest as has the sheriff's admission that the warrant was "no good". http://www.northcountrygazette.org/articles/052906OhioWhistleblower.html

Baumgartner charges that in June 2005 Kasaris had all Erie Voices documents in his possession and statements from Bryan DuBois that the car was not stolen. She says he also has statements from the Ohio Highway Patrol that the elements for felony fleeing and eluding did not occur in that Baumgartner drove cautiously, not recklessly. Kasaris denies this.

Kasaris then engaged in an attempted intimidation of Baumgartner and attempted to inhibit her defense saying "I also must warn you although I am sure you are well aware of it, anything that you say during the course of this trial may be used against you in any proceeding in Cuyahoga County or in Ottawa County. I will also ask Judge Knepper to put the admonishment on the record Thursday".

As evidenced by the actions and statements of both Kasaris and Judge Knepper, there is virtually no concept of impartiality in this case or concept that Baumgartner will receive a fair trial, due process and equal treatment under the law as long as Knepper remains on the case and the venue remains in Erie County.

"[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartiality is as compelling as to its obligaton to govern at all, and whose interest, therefore, in a criminal prosecution, is not that it shall win a case, but that justice shall be done. As such, he is a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor----indeed he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring abut a just one. Berger v. U.S. 295 US 78. 6-07-06

© 2006 North Country Gazette