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How do you spell railroad in Ohio?
B-A-U-M-G-A-R-T-N-E-R/D-U-B-O-I-S
Former attorney and pharmacist Elsebeth Baumgartner of Oak Harbor, Ohio and Bryan DuBois of Sandusky are publishers of Erie Voices, www.erievoices.com , a blog which focuses on judicial and political corruption in northern Ohio.
They are co-defendants in a case concerning the criminalizing of speech on the internet critical of government affairs on the complaint of a judge who claims he was intimidated. Witnesses say the judge told the prosecutor that the duo were a problem that needed to go away.
The complainant in the case against the writers is retired visiting judge Richard Markus, 74, now handling cases as a private judge and who wields powerful influence with other judges in Cuyahoga County which is currently claiming jurisdiction of the multiple felonies against the duo for allegedly intimidating and retaliating against Markus.
But the conflicts and outright blatant bias and prejudice already demonstrated in the case are overwhelming and raise serious questions if they can receive any semblance of a fair trial anywhere in northern Ohio.
The duo was charged this summer in a secret indictment obtained by assistant Cuyahoga County prosecutor Daniel Kasaris whose boss, William Mason, has been the target of the blog's allegations of wrongdoing.
On Nov. 7, Baumgartner and DuBois filed an motion with the Ohio Supreme Court for the disqualification of the trial judge, Cuyahoga County Common Pleas Court Judge Shirley Strickland-Saffold as well as all the Cuyahoga County Commons Pleas court judges and all retired visiting judges, on the grounds that Saffold is biased against them and has had prohibited communications with Markus, the complaining witness. A decision on that motion is expected this week by the Supreme Court, perhaps as early as Tuesday, Nov. 22.
Saffold clearly demonstrated her bias last week by revoking Baumgartner's bond and sending her to jail for three days without stating on the record the cause for the arrest and detention and while a stay of the proceedings imposed by the Ohio Supreme Court was in effect. The stay legally precluded Saffold, whose alleged bias was the subject of the pending motion, from taking any action in the case until the Supreme Court rules on the defendant's motion to remove Saffold from the case.
Saffold released Baumgartner from jail Thursday after a hearing was held.
But during the hearing, a starling revelation and admission was made, appearing to solidify allegations of wrongdoing and improper relationships between the court and the prosecutor when Kasaris revealed that his office was preparing Judge Saffold's response to Baumgartner's motion for her disqualification. In essence, the prosecutor is serving as the personal attorney for the judge in the case which is strictly prohibited by court rules and rules governing judicial conduct. It would also seem to serve as grounds for a complaint to filed against both Kasaris for allegedly violated the Code of Professional Responsibility, as well as Saffold for alleged judicial misconduct.
In Ohio, judges may be removed from the bench following the investigation of complaints filed with the disciplinary counsel or with a certified grievance committee of the board of commissioners on grievances and discipline. If two thirds of the members of the board believe there is substantial credible evidence to support the complaint, the supreme court appoints a commission of five judges to determine whether retirement, removal or suspension is warranted. The commission's decision may be appealed to the supreme court.
Judges may also be removed by a concurrent resolution of two thirds of the members of both houses of the general assembly. http://www.sconet.state.oh.us/Rules/government/default.asp
Baumgartner's motion says that the first indictment brought against her and DuBois in July was dismissed nine days after the state missed the set trial date of Sept. 13. Baumgartner's request before the 8th Appellate Division to decide if the dismissal of the indictment was with or without prejudice is still pending.
Baumgartner says that Markus, retired Cuyahoga County Court Common Pleas judge and 8th Appellate Division judge, now a private judge, currently presides over at least two criminal cases involving the same prosecutors prosecuting the charges against her and DuBois and that as the "victim" in the case, Markus has enormous influence over cases involving Cuyahoga County prosecutors and has long standing and significant professional and personal connections with the bench both in the county and statewide.
The matter had been set for trial Nov. 14 after the state obtained an ex parte continuance of the trial on Oct. 26 without informing the defendants or their counsel. Baumgartner says that the state had again failed to appear for trial as scheduled on Oct. 26. No effort was made to ensure that the defendants' counsel and any witnesses would be available for the new trial date, Baumgartner says.
She says that Chief Justice Thomas Moyer has a longstanding friendship with Markus and requests a disinterested judge be appointed to hear the case who doesn't have ties to Cuyahoga County.
Under the Ohio Revised Code, a judge must disqualify himself on the basis of interest, bias or prejudice or where disqualification is otherwise appropriate. The Ohio Code of Judicial Conduct says a judge "shall disqualify himself in a proceeding in which a judge's impartiality might reasonably be questioned".
Despite Saffold's alleged intemperate behavior from the bench towards Baumgartner and taking action in a case which had been stayed by the Supreme Court, Saffold still refuses to voluntarily remove herself from the case, saying that she plans on proceeding with the trial within 30 minutes of receiving the Supreme Court's decision on her disqualification, seeming to indicate that she has advance notice of how the court will be deciding the issue.
Baumgartner points to case law which says that "although none of the judge's actions or words suggested bias or prejudice, removal was necessary. The court held that participation by any Cuyahoga County judge might reasonably cause the parties and public to question the fairness of the proceedings".
In another case, the entire bench was disqualified due to concerns that the public could reasonably question whether any judge serving on the court of Common Pleas in Cuyahoga County would be able to render a decision based solely n the relevant facts and the law applicable to facts.
She says both are applicable to her case.
Baumgartner says that witnesses indicate it was via Markus' relationship with Kasaris that the case was presented to a Cuyahoga County grand jury instead of an Ottawa County grand jury.
In the case of the bloggers, the judge's actions and words overwhelmingly scream bias and prejudice, especially jailing a defendant when the Supreme Court had imposed a stay. With the trio of Markus-Kasaris and Saffold, its more than an appearance of impropriety, it's virtually certain that Baumgartner and DuBois will not be afforded a fair trial if the case remains in Cuyahoga County before any Cuyahoga County judge.
Baumgartner says that Markus is regularly assigned to the Cuyahoga County Common Pleas bench as a visiting judge and is well-known to all Cuyahoga judges. While presiding over Baumgartner cases in Ottawa County, Baumgartner says he availed himself of connections in Cuyahoga County to inject himself into a case involving the appeal of Baumgartner's license to practice pharmacy pending before Safford, the same judge presently presiding over the criminal case based on Markus' complaints.
Baumgartner maintains that the state has failed to prosecute the charges on two occasions, failed to obtain a journalized and recorded continuance, requiring that the charges must be dismissed with prejudice. She maintains that discovery in the case is not complete and that the defendants were informed of the Nov. 14 trial date on Oct. 31 but that the court and bailiff still have not mailed entry to their counsel as required by law. Baumgartner and DuBois have concerns that the pre-existing professional relationship between Kasaris and Markus compromises their right to a fair trial before any Cuyahoga County judge and that the court has a duty to protect their Fifth and Sixth Amendment rights.
Judge Saffold's personal lawyer, Lawrence Zukeman, met with Baumgartner on Oct. 17 after reviewing the case and offered to represent Baumgartner for $50,000, opining that Cuyahoga County did not have jurisdiction in the case and even if it did, the entire bench should be disqualified due to Markus being the alleged victim. That by itself is grounds for removal of Saffold from the case.
Baumgartner says that on June 28, DuBois was approached by two witnesses who said that Kasaris had allegedly been approached by Markus and asked to obtain an indictment against DuBois and Baumgartner, describing them as a problem that needed to be handled. DuBois was told by Bar officials it is illegal for judge or prosecutor to retaliate against a person for exercising their First Amendment rights.
On June 29, DuBois sent an email to Cuyahoga County commissioners reporting on the alleged relationship between Cuyahoga County prosecutor William Mason and Erie County prosecutor Kevin Baxter and trading of prosecution of politically sensitive natures via special prosecutors without contract or resolution or compensation to the respective counties. The email included an article from Erie Voices which demonstrated the shifting nature of Mason's special counsel appointments. That same night, June 29, Kasaris opened a Case Information Form.
On June 30, Kasaris obtained a 21-count indictment though it was not on the Cuyahoga County of Common Pleas form. The document claimed that Baumgartner and DuBois had intimidated, extorted and retaliated against Judge Markus through a series of emails dating back to June 16, 2004. At the time of the indictment and as of this date, Markus continues to preside over cases involving Baumgartner and her husband, Joseph in Ottawa County.
Challenges have also been made to the first indictment, alleging that it was defective. Among other issues, it did not contain the words "true bill" as required by the Ohio Revised Code. Instead of returning the document to the court as required by law, Kasaris retained it. On July 1, Kasaris moved Chief Judge Richard McMongle to set pre-arraignment bonds of $360,000 cash/property only on Baumgartner and $150,000 cash/property only on DuBois despite that the indictment had not been returned to court as required.
On July 1, McMongle set the requested bonds without comment even though the indictment had yet to be returned to the court. On July 11, DuBois served Gov. Bob Taft, Attorney General James Petro, Chief Justice Thomas Moyer among others a lawsuit alleging that Ohio officials were involved in a "pay to play" scheme involving the courts and awarding of judgments and contracts.
Shortly after Moyer had been served, McMongle issued the indictment without request from the prosecution and the clerk of the Cuyahoga County Common Pleas Court stamped and entered the indictment as secret.
On July 12, Baumgartner and DuBois were arrested within five minutes of each other at separate locations. http://www.erievoices.com/blog/static.php?page=static051108-151318 and http://www.erievoices.com/blog/static.php?page=static051108-203229
11-21-05
© 2005 North
Country Gazette
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