Originally Posted - October 16, 2005

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OAK HARBOR, OHIO--Charges of prosecutorial misconduct including use of the office for political retribution have once again been brought before the Ohio Common Pleas Court by judicial whistleblower Dr. Elsebeth Baumgartner and Bryan DuBois, editor of a blog which focuses on judicial and governmental corruption in northern Ohio.

The bloggers have asked trial judge Shirley Strickland Saffold to reconsider their motion to dismiss of last month, challenging the indictment, and have raised numerous legal issues.

Click here to view motion.

Baumgartner and DuBois have been charged with multiple felony counts on complaint of retired visiting judge Richard Markus who claims that the duo intimidated and threatened him last year prior to a civil trial in which Dr. Baumgartner was the defendant.

The trial for Baumgartner and DuBois is scheduled to begin Oct. 26 but whenever a jurisdictional challenge to the prosecution is raised as is in this case which centers around the free speech rights of bloggers and the right to criticize public officials, then all proceedings must be stayed until the jurisdictional challenge is resolved.

The duo had challenged the indictment which lodged the charges against them in July, claiming it was forged and the day before a pre-trial hearing in the case last month, Cuyahoga County prosecutor Daniel Kasaris attempted to withdraw the original indictment, citing a defect, and substitute a new indictment. Baumgartner objected, citing provisions in the law that barred Kasaris from doing so.

Baumgartner had filed a joint motion with DuBois to dismiss the indictment on Sept. 2, stating the indictment had to be dismissed with prejudice---that the charges could not be brought again----because the indictment was defective and because there were "serious integrity issues concerning the process by which the indictment was found and returned, and the transparent political nature of the prosecution".

The motion requests the court to examine if the first indictment was dismissed with or without prejudice and on what date the dismissal occurred. Baumgartner says this must be done before the court can proceed with any prosecution under a second indictment which has now been filed by Kasaris.

A hearing on the blogger's dismissal motion was conducted by Judge Saffold on Sept. 12 and while she agreed to issue findings of facts and conclusions of law on all of the legal issues presented by the defendants, she did not adjourn their trial date of Sept. 13. Instead, after arraigning Baumgartner and DuBois on the second indictment presented by Kasaris while the first indictment was still pending, Baumgartner asserts that the court failed to comply with the law.

She says that the court's denial of her dismissal motion was not entered until Sept. 22, well after the Sept. 13 trial date had passed and she said she still has not served with a copy of the dismissal entry as required.

She says that the court's findings in the matter were also entered on Sept. 22 after she inquired because the docket reflected that both of her criminal cases---those in Cuyahoga and Ottawa Counties-were still pending.

She has moved in the interest of justice asking the court to reconsider their ruling of Sept. 22 and that the charges against her and DuBois be dismissed with prejudice, barring further prosecution on the second indictment now presented by Kasaris. She asserts in her motion and at hearing that the indictment was not promptly returned to the court by the grand jury foreman and filed on June 30 as required, that the indictment does not contain the required words "True Bill" as required by Ohio criminal procedure law; that the indictment was not in its required form, did not bear the seal of the court and appeared to bear the forged signature of the jury foreman, the Rev. Albert Williams.

Perhaps most importantly, Baumgartner and DuBois assert that prosecutor Kasaris "engaged in behavior that gave strong indicia that this prosecution is politically motivated and intended to silence by abridging the First Amendment rights of the defendants, publishers of the Internet-based government investigative journal, Erie Voices www.erievoices.com".

The records indicate that after Baumgartner and DuBois took issue in open court on Aug. 29 with the alleged forged first indictment, Kasaris obtained a new indictment one day later and at a hearing in early September, even the judge the case was unaware that the duo had been "re-indicted".

Baumgartner, who graduated at the top of her law class in 1994, says that the newly filed case information used by Kasaris to open a new criminal case file shows that Kasaris worked until 9 p.m. the night that Baumgartner publicly accused him of forgery and that he obtained the new indictment the following day, Aug. 30.

Kasaris argued that a prosecutor could withdraw an indictment for a "defect" and re-indict the defendants. However, Baumgartner said the indictment wasn't "defective" but rather a complete forgery. She contends that Kasaris circumvented the Grand Jury process in order to bring the criminal charges against her and DuBois because of their articles concerning alleged misconduct and corruption in the Cuyahoga County prosecutor's office.

"If I forge a personal check, can I defend myself by saying that the forged signature on the check is merely a defect?", Baumgartner asks. "If Kasaris forged that indictment, he did so in order to bypass the Grand Jury which exists solely to protect our citizens from out-of-control prosecutors like Kasaris. And that is the most egregious act that could ever be committed by a professional".

The secret indictment against the pair was apparently secured solely on the testimony of Judge Markus who continues to adjudicate some matters pertaining to Baumgartner and her husband, Joseph, a prominent Oak Harbor pharmacist. Baumgartner asserts that the original indictment was fraudulently obtained by Kasaris and violates the Fifth Amendment rights of both herself and DuBois.

Kasaris has characterized Baumgartner and DuBois as "paper terrorists" for having filing motions and other court papers.

During a court appearance by Baumgartner when she questioned the indictment, Judge Saffold said that she's never seen a prosecutor obtain an indictment because of criticism of a public official. According to court records, Kasaris' only argument in attempting to dismiss Judge Saffold's questions on the validity of the indictment and the cause for it was that "nobody seemed to have a problem with it except her", referring to Baumgartner.

However, a comparison of the indictment against the bloggers, http://erievoices.com/blog/static.php?page=static050731-204649 against regular indictments would seem to lend credence to Baumgartner's claim that the indictment is a forgery. She and DuBois question if a grand jury was even empaneled and at least one court reporter has stated that she's never seen an indictment in the format as the one for Baumgartner and DuBois.

The overwhelming constitutional argument in the entire case which centers on First Amendments rights is whether the government can criminalize a person's exercise of free speech in criticizing public officers.

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

DuBois says that witnesses have told him that following a court hearing in Cuyahoga County, Kasaris allegedly admitted to them that Markus, 75, had pulled Kasaris aside, handed Kasaris a file on Baumgartner and DuBois, allegedly described them as a "problem" that "needed to go away". Markus is the principal complainant against the duo although he did not file his complaint against them, claiming that he had been intimidated by an email, until over four months after the incident and after he had adjudicated the defamation trial against Baumgartner on complaint of Kellen Smith.

Prior to his secret indictment, arrest and incarceration, excessive bail, DuBois had been writing extensively about Judge Markus and other members of the judiciary and prosecutors in northern Ohio. He says he was "assured" by Cuyahoga County Bar Association representatives that judges and prosecutors can't prosecute people "just because they criticize the government".

However, that appears to be exactly what's happening to Dr. Baumgartner and DuBois.

Baumgartner was indicted on intimidation and retaliation charges for the exercise of free speech rights in challenging the alleged corruption of public officials. She was incarcerated in Cuyahoga County Jail in northern Ohio, spending 10 days of her 24-day confinement in isolation on orders of Kasaris, until Aug. 4 when Judge Shirley Saffold reduced her bond from $360,000 cash only down to $25,000.

Baumgartner, 50, of Oak Harbor, and co-defendant, DuBois, 28, of Sandusky, had been jailed following their arrest in mid-July on secret indictment, criminally charged in both Cuyahoga and Ottawa Counties.

DuBois had originally been held on $150,000 bond in Cuyahoga County, apparently at the direction of Kasaris, and an additional $40,000 detainer in Ottawa County. After the Cuyahoga County detainer was reduced to $40,000, he was able to post 10% of each bond or a total of $8,000 to secure his release Wednesday, Aug. 3 and Baumgartner was able to secure her release the following day.

At first, Kasaris stated the Erie Voices website was not a factor in the arrest of the pair. But now he says if the website editor stops writing for the site and stops associating with Baumgartner, he'll reduce the felony charges he brought against him to a misdemeanor.
June Maxam 10-16-05

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