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PORT CLINTON---Although having disqualified himself from matters pertaining to former Oak Harbor attorney Elsebeth Baumgartner, his former political opponent, Ottawa County Prosecutor Mark Mulligan has used his position to obtain an indictment against Baumgartner and her husband Joe, for unlabeled prescription medicines found in their home during a February raid.
The indictment comes less than six weeks after the former attorney sued Mulligan and the Port Clinton News Herald for libel.
The couple became aware of the charges against them by reading about the indictment in the Port Clinton News Herald and the Sandusky Register last Friday. As of Wednesday, Oct. 25, they still had not been served with copies of the indictment.
The Baumgartners own the Medicine Shoppe in Pemberville where Joe is a licensed pharmacist. Elsebeth was also a licensed pharmacist until her license was revoked by Cuyahoga County Common Pleas Court Judge Shirley Strickland Saffold in 2005 in a highly questionable proceeding in which retired visiting judge Richard Markus allegedly sent communications to Saffold about the matter.
Markus later became the complainant against Baumgartner, claiming that she had intimidated him by sending him emails at the time he was adjudicating a civil matter in which she was a litigant, asking him to recuse himself from the case and telling him that she thought he was corrupt and allegedly involved in case fixing.
Despite the court record in the matter, Saffold later denied that she had been involved in the revocation of Baumgartner's pharmacy license and also claimed that she hadn't had any communication with Markus in over 20 years.
The Baumgarters have been charged with a felony count of possession of drugs and 15 separate misdemeanor counts of possession of dangerous drugs for allegedly having 16 different prescription drugs in their home. Although the Port Clinton News Herald claims that they possessed the drugs without a prescription, no evidence of that has been produced and some of the drugs seized were at least 12 years old.
After Elsebeth Baumgartner's former business partner and his wife, Bryan and Mandy DuBois filed statements with Cuyahoga County assistant prosecutor Daniel Kasaris in an effort to relieve DuBois of pending criminal charges, a search warrant was obtained on the basis of the "confidential informant", Mandy DuBois.
http://www.ottawacountysheriff.org/documents/Baumgartner%20Search%20Warrant,%20February%201,%202006.pdf
The DuBois have allegedly made false filings with the federal bankruptcy court, allegedly failing to disclose assets and failing to disclose Mandy DuBois' employment with the Erie County Health Department and her association with Bright Spots Educational Services, a tutoring service which receives Title I funds from the Sandusky School District where her mother works as a secretary to the superintendent.
Such would raise questions about the credibility of any statement given to police and prosecutors against Baumgartner by the DuBoises. Baumgartner's husband had written DuBois a check for $15,000 as part of the retainer fee for attorney Jay Milano who was to have been hired to represent the First Amendment interests of Erie Voices. Instead, DuBois used the $15,000 plus borrowed $10,000 from the corporate credit card to retain Milano to represent him in his criminal charges and then turned on Baumgartner, agreeing to testify against her in exchange for a favorable plea deal for himself.
According to the Port Clinton News Herald, the Baumgartners allegedly had 16 different prescription drugs in their home including diet pills, flu medicines, penicillin and an undisclosed amount of the painkiller Vicodin. It is alleged that the total value of the drugs, although some were expired as long ago as 1994, is said to be approximately $1,800.
The Baumgartners are being now being threatened with up to 18 months in prison and a $5,000 fine.
Coincidentally the charges are being brought three weeks before Elsebeth Baumgartner is scheduled to begin trial before Saffold on complaints brought by Markus and DuBois for intimidation and retaliation. Intense pressure has been placed on her to accept a plea bargain so that the prosecution can avoid having to prove their charges at trial.
Baumgartner has vowed to take the matter to trial.
They have been issued summonses to appear in Ottawa County Court on Nov. 16 for the drug counts, three days after the scheduled beginning of the Cuyahoga County trial.
The drug charges against the Baumgartners appeared to be seriously flawed.
The search warrant was executed in February during a raid on their home by the Cuyahoga County Prosecutor's office and the Ottawa County Drug Task Force, lending questions about the timing of the new charges eight months after the alleged drugs were seized but just three weeks before the Cuyahoga County trial.
The new charges brought by Mulligan would appear to be in retaliation for Baumgartner's lawsuit against him and intimidation.
Although the warrant required that a receipt be issued to the Baumgartners for all property seized, that a written inventory of the property seized be prepared and that the property found on the search had to "forthwith" be brought before a judge, it appears that Kasaris and other officials failed to do so.
Baumgartner says that no receipt was issued by the raiding officers of the property seized and therefore without such receipt and inventory having been issued at the time of seizure, there is no chain of evidence and no proof that the drugs in question were actually removed from the Baumgartner home and could have been produced later by prosecutors.
The search warrant will also become an issue in the Cuyahoga County charges as five of Baumgartner computers were seized during the raid, containing notes for her defense of the charges and attorney-client privileged communications. The seizure and affidavit used to obtain the warrant also firmly establish grounds for claims of First Amendment violations as the warrant appeared focused on Erie Voices, the blog which Baumgartner and DuBois operated which focused on exposing governmental wrongdoing.
Although the warrant required that the officers copy the hard drives of the computers, to date her computers have not been returned to her and again brings the chain of evidence into question. Without having returned the computers to Baumgartner, there exists the question if prosecutors or their agents may have placed incriminating material on the computers seized from Baumgartner or erased exculpatory material.
The investigator applying for the search warrant claims that Baumgartner made postings under various screen names to her own blog but there is no proof of that provided, no IP numbers, in other words, a fishing expedition. 10-25-06
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© 2006 North
Country Gazette
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