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 CLEVELAND---Saying that she was "tired" and "worn down" by the months of wrangling, legal proceedings and incarcerations, former attorney Elsebeth Baumgartner decided to enter a plea of no contest Wednesday in Cuyahoga County Common Pleas Court in a negotiated plea bargain with the guarantee of her right to appeal protected and her release on an appellate bond.
  Baumgartner had been facing multiple counts of intimidation, retaliation as well as possession of a criminal tool, a computer, as the result of separate complaints brought against her by retired visiting judge Richard Markus (left) and her former business associate Bryan DuBois (right).
The trial in the matters had begun Monday when Baumgartner's attorneys had filed motions challenging the legal sufficiency and venue of the charges brought against Baumgartner and the constitutionality of the statutes. They had also filed a suppression motion challenging the legality of the search warrant executed against Baumgartner on the affidavit of DuBois and his wife, Mandy.
Judge Shirley Strickland Saffold denied all motions but all issues are now preserved as part of the court record and may be raised on appeal.
Jury selection had begun Tuesday and was continuing Wednesday when Baumgartner agreed to take the deal which effectively wraps up all of the pending charges against her.
Saffold dismissed several of the felony counts against her but found her guilty of more than half of the charges which alleged that she had intimidated Markus by sending him emails and DuBois by allegedly posting comments on the blog, Erie Voices, which had been operated by Baumgartner and DuBois. As a result of a deal made with prosecutors by DuBois, agreeing to work against Baumgartner in return for a deal for his own criminal charges, he removed Erie Voices from the Internet. The blog had focused on governmental corruption and judicial misconduct.
DuBois had originally been a co-defendant with Baumgartner, charged with extortion, intimidation and retaliation. In exchange for turning on Baumgartner with questionable self-serving allegations, DuBois received diversion, a form of probation but so far, the terms of his deal have not yet been made public.
DuBois was represented by attorney Jay Milano on a $25,000 retainer fee, $15,000 of which was loaned to DuBois by Precursor Inc., a corporation owned by Baumgarnter's husband. DuBois borrowed the remainder of Milano's $10,000 fee a credit card which belonged to Arbor Group LLC, the company in which he and the Baumgartner family were the principals.
The DuBoises then moved to discharge the debts in their bankruptcy proceeding.
In essence, the Baumgartners paid for the attorney used by DuBois to turn on Baumgartner. Milano was scheduled to be a trial witness against Baumgartner.
Neither Markus nor the DuBoises were present in court Wednesday. It had been anticipated that had the prosecution led by Cuyahoga County assistant prosecutor Daniel Kasaris called the DuBoises as witnesses, attempts would be made to impeach their credibility by entering into the record alleged falsified filings made by them to the U.S. Bankruptcy Court.
That issue is yet to be addressed.
Baumgartner's deal also wraps up the pending charges in Erie County where she had been charged with stealing her own vehicle and resisting arrest. Baumgartner has pleaded no contest to felony fleeing and eluding and the rest of the charges have been dismissed but she can challenge the conviction, and in particular the underlying warrant which caused the arrest, on appeal.
Drug charges brought against Baumgartner, a former pharmacist, several weeks ago in Ottawa County for allegedly having prescription drugs outside of labeled bottles have been dismissed with prejudice. Similar charges against her pharmacist husband, Joseph, have reportedly been merged into one misdemeanor charge. He is scheduled to be arraigned on the charge Thursday, Nov. 16.
By pleading nolo contendere or no contest, Baumgartner neither admits nor denies that she committed the charged crimes but agrees to a punishment, in this case probation, as if guilty. This type of plea can't be used as an admission of guilt for any other purpose. Formal sentencing is scheduled for Dec. 14.
In this situation, the plea guarantees her the right to appeal and she has been guaranteed an appellate bond which will allow her to remain free while her appeal proceeds through the higher courts, with the an eye on the U.S. Supreme Court for the free speech issues in the case. 11-16-06
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© 2006 North
Country Gazette
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