Originally Posted - July 25, 2006

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If at first you don't succeed, try, try again. That seems to be the motto of assistant Cuyahoga County prosecutor Daniel Kasaris.

Kasaris is prosecuting Ohio whistleblower Elsebeth Baumgartner in Cuyahoga County, trying to imprison her for 109 years for having the audacity to exercise her First Amendment rights by not only criticizing a judge by telling him that he's allegedly corrupt but by asking him to comply with the law.

Although Erie County prosecutor Kevin Baxter has disqualified himself from prosecuting Baumgartner in Erie County for stealing her own corporate vehicle, admitting that he has serious conflicts of interest with her, that didn't stop him from skirting the law and handpicking Kasaris as the APA he wanted to prosecute Baumgartner.

For the fourth time at taxpayer's expense, Kasaris has insisted that Baumgartner undergo a competency evaluation in what appears to be an effort to avoid going to trial, to avoid allowing Baumgartner access to the courts, refusing to allow her to exercise her rights guaranteed in the U.S. Constitution and in the Ohio Constitution.

In fact, Kasaris and the State of Ohio have acted in concert with the Ohio courts so many times to violate the constitutional rights of Elsebeth Baumgartner, the U.S. Supreme Court should be stepping in and saying "Whoa", this is an egregious and pervasive abuse of power.

The Ohio Constitution says that "All courts shall be open, and every person, for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay". That means that EVERY person has access to our courts.

Even Elsebeth Baumgartner. The State of Ohio can't deny her access to the courts just because they don't want to rule on her subject matter but most importantly, they can't deny her the right to appeal a criminal conviction, the right to counsel, due process, equal protection under the law, the right to seek redress of grievances and a panoply of other rights being denied Baumgartner. It's not the People of the State of Ohio that are prosecuting Baumgartner, it's the courts in the persona of retired visiting judge Richard Markus, Chief Justice Thomas Moyer and prosecutors Kevin Baxter and Daniel Kasaris using the system to exercise their vendetta against Baumgartner for blowing the whistle on them and exposing their wrongdoings. Just think, if they can discredit her and stow her away in jail, then they can continue with their alleged wrongdoings. Two wrongs just don't make a right.

Baumgartner was sent to jail on June 1 for 45 days by visiting judge Richard Knepper, finding her in contempt for being "obstreperous" when she appeared for trial in Erie County on charges of grand larceny for allegedly "stealing" her corporate vehicle that she had financed, although there was no complainant, felony fleeing and several misdemeanor charges.

After Knepper 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 45 days later. A fifth evaluation which deemed her competent was funded by Baumgartner herself. http://www.northcountrygazette.org/articles/071706JudgeReverses.html
As usual, she has been found competent to assist in the defense of charges against her, a finding which obviously chagrins Kasaris. He doesn't want to go to trial, certainly not a jury trial.

In a letter written to Baumgartner while she was incarcerated in Erie County Jail, Jeffry Kelleher, the attorney who represents Baumgartner in the Cuyahoga County charges, says that in a meeting called by Common Pleas Court Judge Shirley Strickland Saffold, Kasaris had stated that if Baumgartner was deemed competent following the fourth court ordered evaluation, that he would keep right on requesting competency evaluations until he got the finding he wanted. Kelleher told Baumgartner that "Mr. Kasaris has advised that if you are deemed competent, he will probably move for a second exam by another doctor under the statute".

This may also be a ploy by Kasaris to continue to improperly use competency proceedings as a ruse to attempt to skirt the speedy trial requirements. And it may also be an attempt to stop Baumgartner, a disbarred attorney who graduated at the top of her class, from representing herself. Baumgartner says that according to her calculations, Kasaris and the People have already violated her speedy trial rights by not proceeding to trial within the requisite 270 days.

Not only has the Sixth Amendment right to counsel become a looming issue with Knepper blatantly refusing to allow Baumgartner counsel to represent her, claiming that she had effected a waiver, but now the Sixth District Court appears to have egregiously violated Baumgartner's constitutional right to appeal a criminal conviction.

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 problem is however, the vexatious litigator statute applies only to civil actions.

Ohio statutes provide that the judgment and orders of a court or officer made in cases of criminal contempt may be reviewed on appeal. Appeal proceedings won't suspend execution of the order or judgment until the person in contempt files a bond in the court rendering the judgment or in the court or before the officer making the order. When Baumgartner sought bond, the District Court sat on her request until she was released from jail, then denied it saying that she couldn't file because of the vexatious litigator finding.

When the Baumgartner matter lands in federal court, and it's a matter of when, not if, it's likely this denial to appeal the conviction, a constitutional right of first appeal, is going to be a thorny issue for Erie County and Kasaris and a costly one for its taxpayers.

Baumgartner was declared a vexatious litigator by Markus several years ago after Ottawa County prosecutor Mark Mulligan asked him to do so via a lawsuit.

Vexatious litigator" means any person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions, whether in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court, whether the person or another person instituted the civil action or actions, and whether the vexatious conduct was against the same party or against different parties in the civil action or actions. "Vexatious litigator" does not include a person who is authorized to practice law in the courts of this state under the Ohio Supreme Court Rules for the Government of the Bar of Ohio unless that person is representing or has represented self pro se in the civil action or actions http://www.sconet.state.oh.us/Clerk_of_Court/vexatious/

The vexatious litigator law was intended "to prevent abuse of the system by those persons who persistently and habitually file lawsuits without reasonable grounds and/or otherwise engage in frivolous conduct in the trial courts of this state." However, the statute can't be used to unconstitutionally deny a defendant their right to appeal a criminal conviction.

And how can you determine if a lawsuit is frivolous or not until its heard?

The Court of Appeals declared the vexatious litigator statute unconstitutional but the Ohio Supreme Court overturned that ruling 5-2 and held that the statute was constitutional. The matter hasn't been challenged in federal court, yet.

The court of appeals ruled that the vexatious litigator law was unconstitutional because "it fails to provide a reasonable and meaningful substitute for direct access to Ohio's trial courts but Supreme Court Justice Alice Robie Resnick wrote that a law is usually found to pass constitutional review if it "bears a real and substantial relation to the public health, safety, morals or general welfare of the public and if it is not unreasonable or arbitrary".

The last phrase should have been enough to deem it unconstitutional as it's unreasonable and arbitrary to pass a law that is contrary to the constitution.

As he did in the recent Supreme Court decision finding that private judges cannot conduct jury trials, Justice Paul E. Pfeifer wrote a dissenting opinion in the vexatious litigator issue, stating that the case was based on just one man, an inmate who had filed numerous lawsuits at taxpayer expense, saying that the decision would impact many others, not just one person.

Baumgartner pays her own fees and filing an appeal to a conviction which has deprived her of her liberty certainly can't be deemed "frivolous".

In the recent case brought by Judge Nancy Russo challenging the private judge system, Justice Pfeifer against wrote a dissenting opinion, saying that "This court should not interpret a statute to infringe an inviolate right absent plain and clear language from the General Assembly that it intends to do so".

The Sixth District Court has done just that in the Baumgartner case, interpreting the vexatious litigator statute to infringe the inviolate right to appeal a criminal conviction and thus has violated Baumgartner's rights by denying her the right to appeal. Baumgartner is between a rock and hard place in that she has no redress of grievances. If one accepts the mindset of the Ohio courts, she is at their mercy and cannot appeal their ruling to a higher court. In other words, there is no semblance of justice for Elsebeth Baumgartner or protection of her constitutional rights.

Judge Pfeifer's dissent is also applicable in the Cuyahoga County charges against Baumgartner including charges that she used her website to intimidate and harass, causing Cuyahoga and Ottawa County government to criminalize free speech. Kasaris, Markus and the rest might well take note of Judge Pfeifer's dissenting opinion in which he states that "the Internet had not been invented with the Constitution of the United States was ratified. Yet no rational jurist would suggest that the right to free speech does not apply to articles, blogs or mere musings posted on the Internet. The religions of the Seventh Day Adventists, the Church of Jesus Christ of Latter-Day Saints (the Mormons) and the Church of Christ, Scientist, to name just a few, were not practiced when the Constitution of the United States was ratified. Yet no rational jurist would suggest that the right to freedom of religion does not extend to the practitioners of these religions. Why is the constitutional right to a trial by jury different? For no rational reason".
http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-3459.pdf

Kasaris appears to be on a reckless course to destruction, all at taxpayer expense, racking up one violation of Baumgartner's constitutional rights after another. Perhaps he's been promised ascension to judicial office if he can deliver a conviction of Baumgartner, a conviction at any cost. However, Kasaris has become reckless and his blatant violations of Baumgartner's constitutional rights with the assistance of the court have been egregious and very visible.

There is virtually no semblance of fairness exercised or exhibited in any court proceeding against Elsebeth Baumgartner. There is absolutely no way that she can get a fair trial, another constitutional right, in any state or county court in Northern Ohio.

Where's the U.S. Department of Justice in this, why aren't they protecting the civil rights of Baumgartner? While the Rooker Doctrine may prevent a federal review of the case while there are still proceedings in the state courts, isn't there a provision of law that allows the matter to be taken immediately and directly to the Supreme Court for a review of the egregious constitutional violations of this defendant?

The Constitution is still the supreme law of the land, even in northern Ohio. 7-25-06

© 2006 North Country Gazette