Originally Posted - November 24, 2006

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Although public officials in four counties in northern Ohio----Franklin, Cuyahoga, Ottawa and Erie---have consistently claimed that allegations made against them by Elsebeth Baumgartner were false, to date there has been no independent investigation. Her allegations against them have been deemed false because they of their own self-serving denials and they then used their positions to bring and prosecute malicious and convoluted criminal charges against her.

On Tuesday, Nov. 28, Baumgartner, a disbarred attorney and former pharmacist who has had her professional licenses removed from her because she tried to hold public officials accountable, will appear in Ottawa County Court in Port Clinton before visiting judge David Faulkner.

She will be sentenced on 27 counts of contempt levied by retired visiting judge Richard Markus who has used his black robe for years to get even with Baumgartner for having expressed her opinions and directed allegations of wrongdoing against him, allegations of double billing and fleecing the taxpayers which seems to be borne out by a review of his invoices submitted to the state as a visiting judge appointed by Chief Justice of the Ohio Supreme Court, Thomas Moyer.

Although Markus claims that her accusations against him are false, so far no agency has undertaken an independent audit and review of his billing practices.
http://www.northcountrygazette.org/articles/110406YouPay.html

Markus had originally charged Baumgartner with 34 counts of contempt but following a trial in March and April, Faulkner dismissed six of the counts and a seventh was dismissed when it couldn't be determined if Baumgartner had ever been notified of the charge.

Normally verdicts are rendered in a relatively prompt fashion following the conclusion of a trial but in Baumgartner's case, Faulkner failed to do so for nearly seven months and ironically, and perhaps not so coincidentally, ruled late last month, just prior to Baumgartner being scheduled to stand trial in Cuyahoga County on intimidation charges filed against her by Markus, charges which had a direct correlation to the contempt charges.

Baumgartner could be sentenced a maximum of 30 days in jail and fined $250 for each count of contempt, facing a potential of more than two years in jail and $7,500 in fines.

In his decision, Faulkner wrote that Baumgartner had made "outrageous statements" during judicial proceedings before Markus back in 2004 when Markus was adjudicating a civil case against her. Although Markus claimed that he was intimidated by her, filing both a criminal complaint against her and levying 34 counts of contempt against her, he continued to maintain that he wasn't biased and could be impartial-----and then he ruled against her and slapped a $175,000 judgment against her.

In New York State, statements made during judicial proceedings are protected by immunity and individuals who file complaints against public officials for which they have documentation or a sincere belief that a wrongdoing has occurred are protected by minimally a qualified immunity if not absolute immunity and cannot be held liable if an investigation is conducted and the claim found to be unfounded.

But in Baumgartner's case in Ohio, no investigation was ever held.

In his decision, Faulkner said that one of the contempt charges was based on a "simply outrageous" claim by Baumgartner. He said that claim "…..accuses both Judge Markus and Chief Justice (Thomas) Moyer of mob connections and perverted behavior". Although the standard of proof for a conviction in a criminal contempt charge is beyond a reasonable doubt, in the Baumgartner case, Faulkner has made his ruling based solely on Markus' denial and a subjective statement without outside inquiry, saying that Baumgartner's accusation was "nothing more than an attempt to intimidate, demean and distract the court from its function".

While the burden of proof is on the prosecution to prove that Baumgartner's accusation is false, no such proof was submitted at trial.

The public's perception that Baumgartner was afforded a fair trial by an impartial judge has been seriously compromised and both the court and prosecutor's office of Mark Mulligan have imperiled any thought that justice prevailed in the Baumgartner case. In fact, it's exactly the contrary and was obviously done to try to discourage any other critics of government from speaking out.

Throughout the trial, Faulkner refused to define whether the charges were criminal or civil in nature. He denied Baumgartner a jury trial, decreed that she had to represent herself in the matter and said the civil standard of proof, a preponderance of the evidence, would be applicable rather than the criminal standard of beyond a reasonable doubt.

Markus testified that the charges are criminal because she purportedly criticized him and sent him emails to distract him and others from handling her court cases.

In her final argument, Dr. Baumgartner, a former patent and biotech attorney, argued that the court was compelled by the principles of stare decisis and controlling precedent to dismiss the case. She argues that the case was undertaken in bad faith for purposes of harassment because she says the allegations of wrongdoing by Markus are unsupported by any law or authority.

In essence, Ottawa County prosecutor Mark Mulligan, Baumgartner's former election opponent, teamed up with Markus to unconstituonally criminalize free speech and rule Baumgartner's allegations of governmental wrongdoing false simply because the officials involved denied them. Mulligan and Markus sought to criminalize what should have been brought as a civil defamation case, if anything. (The Baumgartner Chronology which was previously published at Erie Voices, a blog formerly operated by Baumgartner and her former business partner Bryan DuBois, outlines the allegations made by Baumgartner and appears here) Baumgartner Chronology

The U.S. Supreme Court has held that a person is entitled to a jury trial and counsel anytime their liberty interests are at stake which in this case, they are as Baumgartner is being threatened with more than two years in jail.

Baumgartner's husband, Joseph, had been scheduled to testify as a defense witness but Baumgartner withdrew him after prosecutor Mark Mulligan's intimidation of the witness, saying that if Joseph Baumgartner testified, he would be waiving spousal immunity and could be subject to be questioned about any matter, whether or not it was relevant to the charges at issue.

Called as a surprise defense witness was Kellen Smith. The contempt charges levied by Markus against Baumgartner had emanated from a libel trial in December, 2004 brought against Dr. Baumgartner by Smith, a former member of the Benton-Carroll-Salem Board of Education, the same school board of which Dr. Baumgartner's husband had been a member for 12 years.

Even after he had filed his contempt charges against Baumgartner and then his criminal complaint against her, Markus continued to handle matters relating to the Smith libel case. Although Dr. Baumgartner did not testify in her own behalf at the civil trial and there was no credible proof submitted, Markus found Baumgartner guilty in what many said was a pre-determined decision, and assessed a $175,000 judgment against her.

Although Mulligan has been previously disqualified by another retired visiting judge from prosecuting Baumgartner in other cases due to conflicts of interest, he refused to disqualify himself in the contempt charges and Faulkner refused to remove him.

Mulligan took it a step further and more than eight months after the Baumgartner house was raided by with a questionably legal search warrant, three weeks before the Cuyahoga County trial and in an obvious intimidation attempt directed at the Baumgartners, Mulligan then levied drug charges against both Dr. Baumgartner and her husband, claiming that they had prescription drugs in the house without prescriptions.

The drug charges against Dr. Baumgartner have now been dismissed with prejudice meaning they can't be brought again. Joe Baumgartner has pleaded not guilty.

Regardless of the sentencing results on Tuesday, Baumgartner intends to appeal the guilty verdict, maintaining that she, as well as others, has the constitutional right to criticize a judge or other public official. The U.S. Supreme Court held over 60 years ago that a judge may not hold in contempt one who ventures to publish anything that tends to make him unpopular or to belittle him or punish speech critical of their actions.

The alleged misconduct of Common Pleas Court judge Judge Paul Moon in making highly prejudicial and prohibited public and published comments about Dr. Baumgartner just prior to the commencement of the trial, appeared to deny her right to presumption of innocence and fair trial rights by intentionally, recklessly and willfully engaging in a character assassination of her in the press. Moon, pandering to the obviously biased Port Clinton News Herald, claimed in an article published March 30 that Baumgartner had breached security at the courthouse because she allegedly entered the office of court attorney Charles Munoz which is adjacent to Moon's office. Moon readily admits that he has no idea why she went to the office, if she did, or what was discussed which establishes a reckless disregard for the truth and an obvious malicious intent to discredit Baumgartner. His published comments would be one of the issues to be raised on appeal.

Individuals who wish to express their opinions about the Baumgartner case to Faulkner prior to sentencing may write to him at his home court in Hardin County at The Hon. David Faulkner, Court of Common Pleas, One Courthouse Square, Suite 370, Kenton, OH 43326, tel 419-674-2278, Fax: 419-674-2273; or at the Ottawa County Court of Common Pleas, 315 Madison St., Room 301, Port Clinton, OH 43452, Tel: (419) 734-6790 Fax: (419) 734-6852.

11-24-06

© 2006 North Country Gazette