Originally Posted - December 16, 2006

return home

Can a person be charged and tried twice for the same alleged criminal act?

Not under multiplicity.

Multiplicity is the charging of a single offense in several counts of a complaint of information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.

It would also be barred by the Ohio State Constitution.

It appears that's exactly what the state of Ohio may have done to disbarred biotech and patent attorney Elsebeth Baumgartner, charged and tried her twice---in different jurisdictions, in separate complaints thereby subjecting her to dual punishments, for the same single alleged offense---that of sending e-mails to retiring visiting judge Richard Markus.

Baumgartner is scheduled to appear in Cuyahoga Common Pleas Court on Monday, Dec. 18 at 10 a.m. before Judge Shirley Strickland Safford, to be sentenced for her no contest plea last month to multiple counts of intimidation and retaliation stemming from the sending of e-mails to Markus. The case contrived against Dr. Baumgartner is beset with constitutional issues, particularly First Amendment rights to criticize public officials without fear of reprisal.

She will also be sentenced by Saffold for posting comments on a blog which she financed and was part owner, with Cuyahoga County assistant prosecutor Daniel Kasaris claiming that such postings intimidated her former business partner, Bryan DuBois and his wife, Mandy.

In order to insure that the U.S. Constitution and the rule of law prevails on Monday in Courtroom 21-B in the Justice Center, 1200 Ontario St., Cleveland, supporters should pack the courtroom to cast a watchful eye on the proceedings, to ensure that Saffold complies with the plea bargain agreement, that Baumgartner's rights are upheld and that she's released on appellate bond as agreed while her appeal is pending.

Baumgartner has already been tried and convicted in Ottawa County Court for sending those same e-mails and is currently serving six consecutive sentences of 20 days each and a monetary fine of $100 per count by visiting judge David Faulkner for 27 counts of indirect criminal contempt. Although the three-day trial was concluded on April 3, it took Faulkner seven months to render his decision, doing so on Oct. 30, less than two weeks before the trial against Baumgartner was to begin in Cuyahoga County for the same emails and court documents.

Baumgartner has been charged not only for the same alleged criminal act twice but in separate jurisdictions, Ottawa and Cuyahoga Counties, raising the question how a criminal act can be conducted in two separate places at the same time.

After Markus cited Dr. Baumgartner for 34 counts of contempt as a result of her allegedly calling him corrupt, a rent-a-judge and accusing him of failing to properly perform his judicial duties, Markus then also filed a criminal complaint against her with the Cuyahoga County prosecutor's office, claiming that she had intimidated him and threatened him before a December 2004 libel trial by sending him emails. However, although he claimed he felt threatened and intimidated, he failed to disqualify himself for the trial and lodged a $175,000 judgment against her.

For purposes of lodging the contempt charges against her, Markus claimed he had received the emails in Ottawa County. For the purposes of bringing felony criminal charges against her, he and prosecutor Daniel Kasaris claimed he had received them at his rent-a-judge office in Cuyahoga County or in other words, in two places at the same time.

The Supreme Court has held in analyzing a double jeopardy issue, the overarching inquiry is whether the convictions are for the same offense and in the case of the Ottawa County contempt case and the Cuyahoga County intimidation case, the answer appears to be yes in that the same criminal conduct and indeed the same e-mails are the alleged criminal act. There are two components for a double jeopardy violation, both of which must be met. One, do the convictions arise from the same conduct and two, by statutory definition are there two offenses or only one.

Under the first component, if the charges brought in separate counties and prosecuted by separate prosecutors arise from the same act or transaction, the conduct is unitary and the second component must be analyzed to see if the convictions arise from the same offense.

The concept of multiplicity derives from the Double Jeopardy Clause of the Constitution, prevent defendants from being twice punished for a single offense. The leading Supreme Court case on multiplicity is Blockburger v. United States. In that case, the defendant was convicted of two offenses-selling narcotics not from its original stamped package and not in pursuance of a written order, both arising from the same sale. The Court ruled that a single act may be punished under two different statutes without violating the Double Jeopardy Clause when each of the statutory offenses requires proof of a different element.

Baumgartner was blindsided with the 120-day sentence imposed by Faulkner less than two weeks before her trial in Cuyahoga County was to start on charges which included intimidation, retaliation and falsification charges concerning the same e-mails which were the basis for the contempt charges with Markus being the complainant in both.

The basis for both the Ottawa and Cuyahoga actions evolves from a civil action before Markus in December 2004 in which Baumgartner and her firm, Cleveland Genomics, had been sued by Kellen R. Smith. Markus charged Baumgartner with the multiple contempt counts.

Markus, 75, who was forced to retire from the bench by Constitutional mandate at age 70, continues to adjudicate criminal matters while operating a private judicial services operation although state statute says visiting judges can act only in civil matters. Markus presided over a libel trial in Ottawa County in December 2004 brought against Dr. Baumgartner by Smith, a former member of the Benton-Carroll-Salem Board of Education, the same school lboard of which Dr. Baumgartner's husband, Joseph, had been a member for 12 years.

In rendering his decision, Faulkner indicated that the "evidence" against Baumgartner consisted primarily of the extensive testimony of Markus and exhibits or, in other words, Markus' word against hers. In regard to the emails in which Baumgartner accuses Markus of unprofessional conduct and violations of the Canons of Judicial Ethics by acting ex parte and without authority, Faulkner ruled that the emails are contemptuous and false based on the sole evidence at trial being Markus' explanation that Baumgartner's allegations against him were false. Faulkner's decision indicates that he found Baumgartner guilty of several counts of contempt for making the same statement.

To date, although prosecutors in both Ottawa County and Cuyahoga County claim that Baumgartner's allegations against Markus are false, there has been no independent investigation and no proof of falsity by the prosecution. Baumgartner's statements have been deemed false solely by Markus' denial of any wrongdoing or unethical behavior.

Faulkner caused a delay, perhaps intentional, in Baumgartner seeking a stay in the execution of the sentence and her release on an appellate bond while perfecting her appeal by failing to state in his decision and entering it on the record that he had denied her release on bond.

Although the motion for Baumgartner's release was filed with the Sixth District Court of Appeals on Dec. 11 by her attorney, Frank Gasper, former Cuyahoga County assistant prosecutor, so far the court has stonewalled any decision, much the same as it did when Baumgartner was found in contempt in June by retiring visiting judge Richard Knepper sitting in Erie County Common Pleas Court. Although Knepper had already disqualified himself from the case and had no jurisdiction, he sentenced Baumgartner to 45 days in jail. The Appellate Court refused to hear Baumgartner's writ of habeas corpus, claiming that she has been designated a vexatious litigator. However, that statue pertains only to civil matters and cannot supercede Baumgartner's right to appeal guaranteed to her by the U.S. Constitution, particularly when she is represented by legal counsel.

As expected, Ottawa County prosecutor Mark Mulligan, former political opponent of Baumgartner for the office of prosecutor, is opposing her motion for release on bail. Mulligan argues that she is a flight risk and will be sentenced Monday in Cuyahoga court for allegedly intimidating Markus, the same set of allegations that are the foundation for the contempt convictions which sets the stage for Baumgartner to be charged and punished twice, in violation of the Double Jeopardy Clause, for the same conduct, the sending of emails to Markus.

Gasper has indicated that the probable issues for review on appeal will be violations of Baumgartner's First Amendment rights and improper penalties imposed for indirect contempt as a continuous course of conduct.

Mulligan whines that Baumgartner "remains unrepetent" and he claims "if she is released, the public, judiciary and our court system will continue to suffer (her) unrelenting attacks". In other words, Mulligan and his cronies apparently feel that the only way to avoid being held accountable is to incarcerate Elsebeth Baumgartner.

Mulligan's opposition holds little merit in that Baumgartner is currently on a surety bond in Erie County and a personal recognizance Bond in Cuyahoga County and obviously has made no attempt to avoid the charges since first charged in 2005. She has not missed any of the multiple court dates in the three counties claiming to have jurisdiction in the criminal matters being pressed against her.

It's unknown when the Sixth District Court will rule but it's likely a double jeopardy challenge will be raised in the Cuyahoga County appeal along with multiple other constitutional issues and procedural violations. 12-16-06

© 2006 North Country Gazette