Originally Posted - July 17, 2006

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Ohio whistleblower Elsebeth Baumgartner is like a Timex watch.

She takes a licking but keeps on ticking.

And so does the clock for her statutory and constitutional right for a speedy trial which appears to have been violated in Erie County where she's being prosecuted for grand theft of her own corporate vehicle.

Baumgartner appeared in Erie County Court Monday afternoon before retired visiting judge Richard Knepper and for the fourth time at the taxpayers' expense, Baumgartner has undergone a competency evaluation and been found competent to assist in the defense of the charges against her.

Knepper rescheduled the criminal trial against Baumgartner until Sept. 5, although by Ohio statute, Knepper does not have any authority as a visiting judge to adjudicate criminal matters.

Dr. Baumgartner of Oak Harbor, who has an outstanding IQ of 165 and graduated first in her law class, was sentenced to jail for 45 days on June 1 after Knepper found the disbarred attorney in direct contempt for being "obstreperous". After he had instantly found her guilty of contempt and sentenced her, he ordered that she undergo a fourth court-ordered competency evaluation at the Lucas County Court Diagnostic and Treatment Center and continued the jury trial until Monday.

Baumgartner, who by law should have been released last Wednesday with credit for good time, was denied the credit by Knepper and was not released until Saturday.

According to Baumgartner, during the evaluation, the psychologist said that the Ohio court system was routinely improperly using competency proceedings as a ruse to attempt to skirt the speedy trial requirements. Baumgartner said the psychologist also admitted that there were significant problems with the retired visiting judge system in northern Ohio, an issue which Baumgartner has long challenged and which was the subject of a legal proceeding brought by Judge Nancy Russo in Ohio Supreme Court.

Last week, the Ohio Supreme Court ruled in favor of Russo and held that when litigants in a civil action agree to have their case heard by a private judge, if the matter goes to a trial it must be heard by the private judge and not by a jury. In addition, the Court in ruled that a court where a privately judged action is pending is not required to provide facilities, equipment or personnel but may at its discretion do so if the parties agree to pay the costs.
http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-3459.pdf
http://www.northcountrygazette.org/articles/071306RentAJudges.html

Baumgartner was arrested on May 20, 2005, and charged with a probation violation for entering a courthouse and then charged with grand theft of a vehicle which she had financed. Additional charges of resisting arrest and felony fleeing were lodged against her after she drove away, 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.
http://www.northcountrygazette.org/articles/052906OhioWhistleblower.html

Baumgartner says that pursuant to both Ohio statues and the state and federal Constitution, her speedy trial rights have been violated because the state and special prosecutor Daniel Kasaris didn't take the matter to trial with the 270 days allowed by law.

She said the 270 days had expired on May 31 but Knepper unilaterally moved the trial date to June 1, saying that he had a conflict. However, the delay is chargeable to the People and not to Baumgartner. She says as of Monday, over 400 days have elapsed since her arrest and while some of the time was chargeable to her, the state and court failed to take the matter to trial within the 270 days as mandated which requires that all charges be dismissed.

When Baumgartner had appeared on June 1 before Knepper when the trial was scheduled to proceed, he had summarily denied her suppression motion for dismissal of the charges due violations of her Fourth Amendment rights.

Baumgartner had filed for an order suppressing all evidence obtained against her 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 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.

In a bizarre move, Knepper inadvertently reversed himself on the issue of the suppression motion Monday and when discussing the filing of pre-trial motions, Knepper blurted out that he didn't have to give Baumgartner a hearing on any motion except a suppression hearing which in effect acknowledged that he had been incorrect on June 1 when he had summarily denied her request for such a hearing.

The psychologist who had conducted Baumgartner's evaluation failed to appear for Monday's competency hearing as did several correction officers from the Erie County Jail who were under subpoena by Baumgartner. It was revealed during the proceeding that while special prosecutor Kasaris has refused to provide Baumgartner with various discovery materials in the case including copies of the police reports, dispatch tapes and other records in the case against her, the records had been provided to the psychologist and are in fact, pursuant to public records law, available to members of the public.

Although state ethics laws and other state regulations including the HIPPA law prohibit the release of a person's private medical record, Knepper ordered that Baumgartner's mental evaluation be subject to public disclosure even though it was stamped across the front of the document that it was confidential and was not to made public. The Health Insurance Portability and Accountability Law (HIPPA) insures the security and privacy of health data.

Knepper has already violated Baumgartner's Sixth Amendment right to counsel, refusing her counsel at the June 1 jury trial, claiming that she had waived her right to counsel.

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).

Although Baumgartner had timely filed a notice of appeal challenging Knepper's denial of counsel and the resulting 45-day incarceration for contempt, the Sixth District Court refused to allow Baumgartner to file a criminal appeal, saying that she has been deemed a "vexatious litigator" by retired visiting judge Richard Markus, 76, the complainant against her in charges still pending in Cuyahoga County where she is facing over 100 years in prison for having criticized Markus.

The Sixth District Court cited the vexatious litigator statute, however, pursuant to a landmark decision over 200 years ago in Marbury v. Madison establishing judicial review, the Constitution is the supreme law of the land and no state statute can be enacted to supercede the provisions of the Constitution, in this case the Bill of Rights and the Sixth Amendment. In Marbury, the Court ruled that it had the power to declare void a statute that it considered repugnant to the U.S. Constitution and in this case, criminal defendants are not only constitutionally guaranteed their right to counsel at trial, but they are guaranteed the first appeal of a criminal conviction by right.

Baumgartner was declared a vexatious litigator by Markus after Ottawa County prosecutor Mark Mulligan asked him to do so via a lawsuit. Although Baumgartner had submitted an affidavit to the court which detailed Mulligan's alleged illegal conduct in regards to her cases over the previous years, Mulligan allegedly removed the affidavit from the court file. Baumgartner had argued in open court with Markus previously about the illegally of the bench warrant which had existed for sometime prior to Bratton and Ottawa County trying to execute it last May.

In the case now before Knepper who Baumgartner has asked to step aside due to issues of jurisdiction and conflicts, Baumgartner had the keys to her corporate vehicle and was seated in a locked vehicle on private property last May 20, waiting for her former business partner Bryan DuBois who was using the restroom. The vehicle was used and paid for by one of the business entities she controls. Subsequently, Chief Helen Proskowski of Bay View Police approached her vehicle and advised she had a warrant for Baumgartner's arrest but she couldn't produce it. Instead of producing a valid arrest warrant, it was learned that Chief Proskowski was allegedly seeking to arrest Baumgartner at the express instructions of Ottawa County Sheriff Robert Bratton on a defective bench warrant from the Ottawa County Municipal Court.

On Nov. 23, 2004, Sandusky Municipal Court Judge Erich O'Brien dismissed all charges against Dr. Baumgartner which formed the basis for the issuance of the bench warrant for an alleged probation violation in Ottawa County Municipal Court.

Baumgartner says that on or about April 4, 2005, she advanced a $2,000 down payment on the purchase of a 2005 Kia Sportage titled in Bryan DuBois' name with the understanding that the vehicle was part of his compensation and available for company business. Baumgartner or businesses she controlled made or reimbursed Bryan DuBois for all monthly loan payments on the vehicle up through February 2006. After DuBois defaulted on the loan payments, the credit card company contacted Baumgartner to pay the amount due.

After she was arrested on May 20, she said she was held in Ottawa County jail without bond or hearing until May 25. At the hearing, Visiting Judge John Adkins admitted on the record that there was no charging document and when she refused to admit to an uncharged probation violation, Judge Adkins claimed he was the complaining witness and ordered her to be held without bond or formal charge. Ottawa County Municipal Court bailiff/probation officer Jody Roster served her with notice of charged probation violation last May 27. Last June 1, she admitted she violated her probation as charged by leaving the state of Ohio without permission and not advising her probation officer of her new address. She was released on probation which was extended to five years despite the fact that she has served 244 days for the underlying first time non-violent misdemeanor conviction of falsification for criticizing Erie County prosecutor Kevin Baxter at a public meeting.

Upon her restoration to probation, Chief Helen Proskowski appeared at the Ottawa County detention facility and placed Baumgartner under arrest for the charges filed May 20 that were never served upon her. Baumgartner says that Proskowski had cuffed her behind her back and 10 minutes after leaving the Ottawa County Jail, Proskowski pulled the patrol car to the side of the road and said, "Let's have a little chat". Baumgartner told her she felt very uncomfortable, that Proskowski need to advise her of the charges against her and needed to read her her rights. She said she was uncomfortable by Proskowski's behavior. When she made it clear she was discussing nothing with Proskowski, she was eventually transported to the Erie County jail where she posted $15,800 bond and was released.

All told, since her arrest last May for stealing her own vehicle, Baumgartner has spent 125 days in jail.

On June 2, Baumgartner filed a motion to dismiss the charges in Sandusky Municipal Court prior to arraignment before Judge Erich O'Brien. She moved the court release the Kia impounded since May 20 at the request of her business associate DuBois present in the court room with her. Judge O'Brien said he would have a decision by the next day.

On the afternoon of June 2, Cuyahoga County assistant prosecutor Kasaris obtained an indictment for the same three charges as she had posted bond in Sandusky Municipal Court plus an additional count of grand theft auto without complaint of DuBois. DuBois had widely published at www.erievoices.com that Baumgartner had authority to use the vehicle because it was a company vehicle. DuBois also published statements from the Ohio Highway Patrol that defendant had not driven recklessly and that there was no basis to charge her with any crimes related to their pursuit as well as exposed several alleged false and or misleading statements made by Bratton as published by the Port Clinton News Herald and Toledo Blade. After obtaining the indictment, Kasaris requested an arrest warrant issue and $150,000 bond even though he knew she was already on bond from Ottawa County and Sandusky County Municipal Courts respectively. Judge Tygh Tone reduced the bond request to $35,000 but did not give credit for the $15,800 already posted for three of the four counts.

On June 3, Baumgartner contacted Kasaris in an effort to have the arrest warrant withdrawn and summons substituted. Kasaris declined to withdraw the warrant. DuBois also contacted the Cuyahoga County prosecutor's Office in effort to find out whether Kasaris' effort to indict him for domestic violence had been in fact no billed; how his business partner was indicted for stealing a company car titled in his name without complaint from him and to inquire how he could recover his property. Kasaris confirmed that he had been no billed and allegedly declined to assist DuBois the "victim" of the alleged grand theft auto charge, with recovery of the vehicle, though he did authorize its release if Dubois paid for the tow and impound fees. Baumgartner said she paid the impound and storage fees for the company vehicle which she had used a few times after her arrest without complaint from DuBois that the car was stolen previously by her or ever driven in a reckless manner so as to endanger the lives of others.

Baumgartner maintains that her Fourth Amendment rights were violated in the search and seizure of her person last May.

The Supreme Court has held that where events are circumstantially innocuous in themselves, or too skeletal and ambiguous to create any reasonable suspicion that an individual is engaged in or was about to engage in criminal activity, the search of that individual is unwarranted and unconstitutional. A stop must be justified by some objective manifestation that the person stopped is or is about to be engaged in criminal activity.

Such circumstances did not exist in the Baumgartner case as she was lawfully sitting in a vehicle in which she had a financial interest and was on private property. Baumgartner argues that she took reasonable steps to protect herself by driving away from a dangerous situation created by improperly trained and reactionary police officers, Bay View Police undertook a pursuit without probable cause and in violation of every area law enforcement's pursuit policies except Bay View's which apparently do not exist.

She said she has repeatedly requested that the State provide her with Bay View Police pursuit policy mandated by Ohio law, but the State has failed to produce any policy leading defendant to conclude that either the policy doesn't exist or the actions of Bay View Police directly violated the policy.

Baumgartner is scheduled to begin trial in Cuyahoga County Common Pleas Court on Sept. 13 before Common Pleas Court Judge Shirley Strickland Saffold for allegedly intimidating retired visiting judge Richard Markus by sending him emails and for allegedly intimidating her former business partner and his wife with postings on her company website.

Assistant Cuyahoga County prosecutor Daniel Kasaris, is also the prosecutor in both cases.

According to court filings, DuBois, Baumgartner's business partner, has filed bankruptcy since abandoning his personal and business relationship with Baumgartner in December and turning state's witness against her in exchange for a period of probation in a plea bargain deal for the criminal charges against him. He and his wife then filed an affidavit against her which resulted in the seizure of her computers containing legal defense materials for her representation and protected attorney-client communications.

According to Baumgartner, the court filings reveal that DuBois has failed to declare his financial interest in Arbor Group LLC, owner of Erie Voices.
7-17-06

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