Originally Posted - November 30, 2005

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CUYAHOGA COUNTY, OHIO---Judge Shirley Strickland Safford isn't biased against Erie Voices blogger Elsebeth Baumgartner.

She said so.

And there isn't any prejudice or wrongdoing in the case on the part of the People and the court---according to them.

So what that the Cuyahoga County prosecutor's office represented Saffold and all the judges of Cuyahoga County in responding to Baumgartner's motion to disqualify them on grounds of bias and lack of impartiality.

So much for that supposed impartial third party in a matter---the judge.

The prosecutor's office is hardly a disinterested person in this matter and the representation of the judge by the People seems to blatantly demonstrate lack of impartiality, ex parte communications in the matter and an overwhelming appearance of impropriety.

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 be filed against both prosecuting attorney Daniel Kasaris for allegedly violating the Code of Professional Responsibility, as well as Saffold for alleged judicial misconduct.

Court records show the response to the Supreme Court on behalf of Saffold was filed by Cuyahoga County prosecuting attorney Linda Williamson.

Despite ruling that isn't biased in the matter and can conduct the trial, Ohio Supreme Court Judge Thomas Moyer says that Saffold has a obligation under Ohio's judicial canons to step aside if her impartiality might reasonably be questioned.

Even though Safford jailed Baumgartner without cause while a Supreme Court stay was in effect on the criminal case against her brought on complaint of retired judge Richard Markus and despite court filings showing interaction between Safford and Markus in a civil case involving Baumgartner, Thomas Moyer says "no reasonable and objective observer would harbor serious doubts about the judge's impartiality in this case given the total absence of any contacts between Judge Safford and Markus during the past three decades".

He's ordered that Saffold will conduct the trial in a case against 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.

Apparently Judge Moyer isn't impartial either. Even the court records show that not only is Saffold's claim that she hasn't had any contact with Markus untrue, but so is Moyer's statement.

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.

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 the bloggers 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 filed an motion with the Ohio Supreme Court for the disqualification of the trial judge, Saffold, as well as all the Cuyahoga County Commons Pleas court judges and all retired visiting judges, on the grounds that Saffold is biased and has had prohibited communications with Markus, the complaining witness.

Saffold clearly demonstrated her bias on Nov. 14 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.

After a motion for reconsideration and writ of habeas corpus was filed in the case, Saffold released Baumgartner from jail and reinstated her $25,000 bond.

In Moyer's decision, he says that Baumgartner contended that Markus will be one of the prosecution's witnesses against her and alleges that Markus' staus as a former Cuyahoga County judge and his close professional relationship with many judges and other officials in the county should compel the disqualification of Safford and all Cuyahoga County judges.

Moyer specifically notes in his decision the prosecuting attorney's office response to the motion on behalf of Safford and other county judges. "The response argues the Baumgartner affidavit should be stricken because it lists the name of Baumgartner's co-defendant as well as her own name in the case caption and the prosecuting attorney says it purports to represent the views of both of them even though Baumgartner is not a licensed attorney who can file pleadings on behalf of others in Ohio. The prosecuting attorney also contends the affidavit should be denied on the merits".

Moyer said that Saffold's response is that she does not maintain any personal or professional contacts with Markus and she believes the last time she spoke with him was over 30 years ago. She says his office is in a separate building from hers. She states she intends to treat him and his possible testimony at Baumgartner's criminal trial no different than other witnesses.

However, court records would seem to indicate that Saffold has filed a false affidavit with the Supreme Court.

Saffold had been the presiding judge in the appeal regarding the revocation of Baumgartner's pharmacy license but Saffold has vehemently denied it, in a unwarranted intemperate display from the bench and despite the existing court records.

Records show that the Ohio State Board Of Pharmacy made the decision to strip Baumgartner's license without any medical evidence that Baumgartner was an "impaired pharmacist". The board took the word of certain Ohio judges and lawyers, all of whom Baumgartner had accused of misconduct, that she might be "mentally ill." Baumgartner has been cleared of any mental defects by a Cuyahoga County Court psychiatrist.

Records show that Markus, who had previously entered two libel judgments against Baumgartner, declared her a vexatious litigator, filed 34 counts of criminal contempt in Ottawa County against her and then became the complaining witness against her on a 22 felony counts indictment in Cuyahoga County, had injected himself into the appeal of Baumgartner's pharmacy case in Cuyahoga County by filing a judicial notice with the presiding judge, Shirley Strickland Saffold.

But Saffold is now denying in sworn documents with the Supreme Court that she has had any personal or professional contact with Markus in over 30 years.

In his communication to Safford concerning Baumgartner's appeal regarding the revocation of her pharmacy license, Markus directs Saffold that "If Elsebeth Baumgartner attempts to proceed in (her pharmacy case) without legal counsel…R.C. 2323.52 directs the Cuyahoga County Common Pleas Court to dismiss that case."

Records show that Baumgartner was represented by Attorney Robert Lynch, a licensed attorney, for the duration of her pharmacy appeal and therefore, Markus' interaction with Saffold was wholly inappropriate.

Baumgartner claims that Markus injected himself into the case in order to taint the record against her. "This man is following me around and doing anything he can to prevent me from earning a living…I can't move on with my life if this man doesn't leave me alone." she said.

Moyer declined to strike Baumgartner's affidavit in the bias motion despite the prosecutor's efforts to do so, saying that he didn't "read it as a document that purports to speak for the co-defendant".

"The affidavit does list the name in the case caption but I see no indication in the body of the document that it is intended to reflect the views of that other person", Moyer held. "Because the trials are to be held before the same judge on the same day, read the affidavit to say the criminal cases involving these two persons have been consolidated but affidavit does not state that co-defendant seeks to disqualify Judge Safford", Moyer ruled. "Also, the signature line on the document simply notes it is filed on her own behalf. The request to strike the affidavit is denied".

"On the merits, I find no basis for ordering the disqualification of Safford", Moyer says. "Canon 3(E)(1)(d) of the Ohio Code of Judicial Conduct would compel the judge's disqualification if a person within the third degree of relationship to her were "likely to be a material witness" in the case. The judge has an obligation to step aside if impartiality might reasonably be questioned. She denies holding any bias or prejudice as a result of Judge Markus' possible appearance as a witness in her courtroom and her lack of personal and professional connections of the judge support her stated intention to preside impartially at the Baumgartner trial".

"Generally, the more intimate the relationship between a judge and a person who is involved in a pending proceeding, the more acute is the concern the judge may be tempted to depart from the expected judicial detachment or to reasonably appear to have done so", Moyer wrote.

"In light of the absence of proof of personal connections between [Judges Safford and Markus] and in light of Saffold's assurances she can decide the case impartially, I conclude disqualification is not warranted. A judge is presumed to follow the law and not to be biased and the appearance of bias or prejudice must be compelling to overcome that presumption. Those presumption are not overcome in this case", Moyer held.

Anyone who wishes to express their opinion to Judge Moyer or other justices of the Supreme Court in regard to the Baumgartner case, particularly in light of the fact that the prosecutor's office is acting as the personal attorney for the judge, may send faxes to the following:
Direct fax numbers for the Justices are:

     614-387-9010      Chief Justice Moyer
     614-387-9049      Justice Resnick
     614-387-9029      Justice Pfeiffer
     614-387-9059      Justice Stratton
     614-387-9069      Justice O'Connor
     614-387-9039      Justice ODonnell
     614-387-9099      Justice Lanzinger

It appears that the Ohio cases Moyer cites in his decision are not backed by any statute under federal appellate or US Supreme Court law that would in the least bring a neutral judge by process to the process of this case.

Baumgartner's motion said 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.

Moyer's decision and order was signed Nov. 27 but Saffold failed to follow through with her statement that she was proceeding to trial within 30 minutes of the decision.

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 on 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 prosecutor Dan 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 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. 11-30-05

© 2005 North Country Gazette