Originally Posted - June 22, 2006

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SANDUSKY, OHIO--It is well established that a criminal defendant has an absolute constitutional right to counsel at trial.

Chalk up another violation of the rights of judicial whistleblower Elsebeth Baumgartner of Oak Harbor in the northern courts of Ohio.

When Baumgartner appeared June 1 in Erie County Commons Pleas Court before retired visiting judge Richard Knepper, a transcript of the proceedings indicates that she requested legal counsel to represent her at trial but Knepper maintained that she had waived legal counsel and denied her request.

Such is a well established violation of Baumgartner's Sixth Amendment right to counsel.

Last May, civil rights activist Baumgartner was arrested and charged with a probation violation for entering a courthouse, for grand theft of a 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 the former attorney was sitting. The charges were filed in connection with her arrest on an alleged probation violation in which it was alleged she had violated the terms of probation by entering the Ottawa County Courthouse to use the law library at the same time a trial of one of her former law clients was being held in the courthouse.

While Baumgartner concedes that she had previously signed a waiver of counsel, she stated in court on June 1 on the day of trial that she had effectively revoked the waiver due to a medical diagnosis of a stress disorder that she was not capable of defending herself. She stated on the record that while she had done pretrial motions, she was not a trial lawyer and she invoked her Sixth Amendment right to counsel.

Instead of assigning counsel to assist her or granting her a delay of a few days for her to retain an attorney, Knepper told her she had had multiple opportunities to make the request and he refused to allow her to proceed with counsel---a fatal error as the U.S. Supreme Court has consistently held.

And then he sentenced her to 45 days in jail after calling her "obstreperous", ordering that she undergo a third competency evaluation at the Lucas County Court Diagnostic and Treatment Center, continuing the trial until July 17 at l:30 p.m. when an additional pre-trial hearing will be held to set a new trial date and for a hearing on the competency evaluation.

If the trial can be delayed until July 17 for Baumgartner to sit in Erie County Jail and and "see how you feel about having a trial without all of this obstreperous activity", no harm could have been caused by adjourning the trial to allow Baumgartner to obtain counsel.

She is scheduled to begin trial in Cuyahoga County on July 10 on the complaint of retired visiting judge Richard Markus that she had intimidated him with emails. When Baumgartner asked if she would be tried from jail on those charges, Knepper stated "I have no idea what your trial schedule is in Cuyahoga County and I couldn't care less".

Knepper denied Baumgartner's motion for his recusal, maintaining that he remain a fair and detached magistrate and that she could receive a fair trial although he had already removed the proceedings from public view into a private courtroom, a further violation. Law requires that all criminal court proceedings, with the exception of juvenile matters, be held in open court with the public having an opportunity to attend.

Baumgartner had filed for an order suppressing all evidence obtained and dismissing the Erie County 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 unlawfully detained Baumgartner 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 but Knepper refused to hold a hearing, saying that she had untimely filed the motion and claiming that she had filed it solely to delay the trial.

Baumgartner has vigorously contested the legality of the warrant which was used to effect her arrest and additional charges last May and had moved for its suppression and dismissal of all charges due to Fourth Amendment violations of illegal search and seizure. In published reports, Ottawa County Sheriff Bratton said there had always been questions "floating" regarding the legitimacy of the bench warrant which contained no charges The U.S. Supreme Court has steadfastly held that law enforcement officers must have probable cause to chase a person and cause their arrest. In that the purported warrant is defective and unlawful by the sheriff's own admission, there would be no legal probable cause to attempt to stop Baumgartner, to chase her vehicle, to take her into custody, search her or her property or to levy new charges against her. In order to levy resisting and fleeing charges against her, the underlying warrant must be valid which in this case, it clearly is not by the sheriff's own admission.

Based on the review of the warrant and the published statements of Bratton and published reports, it appears that Baumgartner's Fourth Amendment rights have been violated in addition to other constitutional violations.

Captain Paul Sigsworth of the Erie County Sheriff's Department terminated the police pursuit of Baumgartner last May 20, citing the totality of the situation did not warrant a vehicular pursuit.
http://www.northcountrygazette.org/articles/052906OhioWhistleblower.html

The Supreme Court has ruled that if a defendant is denied the right to counsel, as in the instant matter, that error calls for automatic reversal of any conviction (Cordova v. Baca, 346 F.3d 924 (9th Cir. 2003), such as in the case of Baumgartner and Knepper's finding of direct contempt and immediate sentencing to jail for 45 days without legal representation.

"The reason for the denial-whether it be an oversight on the part of the court, a failure to give proper warning or some other reason-is irrelevant" Cordova v. Baca has held. "What matters is that the defendant was put on trial without a lawyer though the Constitution guarantees her that right. That is the kind of defect in the trial process the Supreme Court has told us time and time again cannot be unscrambled. Automatic reversal is the only lawful remedy". (Cordova)

In Baumgartner's case, Knepper even denied her request to have counsel sit at the table and assist her. Baumgartner was told by Judge Knepper that she either had to proceed to trial immediately pro se. According to well established case law, a trial court may only allow a defendant to proceed pro se when such defendant knowingly, unequivocally waives his right to counsel, after proper warnings are given by the court of the dangers and disadvantages of proceeding pro se which clearly did not occur in the Baumgartner matter as the certified transcript memorializes. Thus, even if the defendant decides to proceed pro se on the eve of trial, only after disagreeing with the trial court's decision to deny her request for new counsel, this is not considered a valid "waiver" of the right to counsel, as clearly, the defendant wanted counsel. This has been consistently upheld as the defendant's Sixth Amendment right to counsel as in U.S. ex rel. Testamark v. Vincent, 496 F.2d 641 (2d Cir. 1974)).

Unless and until a criminal defendant unequivocally, voluntarily, and knowingly waives his right to counsel, the court is required to continue the assignment of the former attorney, appoint a new one, or, at minimum, assign a lawyer to assist the defendant in an advisory capacity.

A botched waiver does not diminish or alter that right, particularly where a defendant erroneously believes he has no choice but to proceed pro se as the court refuses to assign new counsel, or relieve the old one. An unwaived right is an unimpaired right as held in Cordova v. Baca, Faretta v. California, Penson v. Ohio, 488 U.S. 75, 87-89 (1988); and Rose v. Clark, 478 U.S. 570, 578 (1986)).

"If the accused...is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a...bar to a valid conviction and the sentence depriving him of his life and liberty" (Johnson v. Zerbst, 304 U.S. 458 (1938); Cordova v. Baca, supra).

In Argersinger v. Hamlin, supra, the Supreme Court extended the Sixth Amendment right to counsel to misdemeanor defendants facing incarceration. The Court held that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense whether classified or petty, misdemeanor or felony, unless he was represented by counsel at his trial".

The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions. As such, a defendant's entitlement to a fair trial and effective assistance of counsel must be scrupulously safeguarded. As stated by the United States Supreme Court in Cuyler v. Sullivan, "[U]nless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself. When a state obtains a criminal conviction through such a trial, it is the state that unconstitutionally deprives the defendant of his liberty". 6-22-06

© 2006 North Country Gazette