Originally Posted - December 19, 2006

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CLEVELAND---Government critic and judicial whistleblower Elsebeth Baumgartner has been sentenced to eight years in prison for writing e-mails to a 76-year-old retired visiting judge who is still sitting on the bench adjudicating matters although the Ohio Constitution mandated his removal from the bench when he reached age 70.

In an apparent attempt to position herself and the Cuyahoga County prosecutor's office for Baumgartner's expected constitutional challenge to both the sufficiency and lawfulness of the charges levied against her as well as the procedures exercised in gaining the convictions, Cuyahoga Common Pleas Court Judge Shirley Strickland Saffold said that she wasn't sentencing Baumgartner for the content of her speech but rather for her act of exercising that speech.

Although Baumgartner was arrested and prosecuted for allegedly intimidating and retaliating against Markus because he refused to disqualify himself from adjudicating matters against her, retiring visiting judge Richard Markus, who has exhibited an extraordinary ego and conceit as well as overwhelming bias against Baumgartner, said last month that he hadn't been intimidated by her.

As part of the plea bargain agreement reached last month when Baumgartner entered a no contest plea to charges of intimidation and retaliation as a result of complaints filed by Markus and Baumgartner's former business partner, Bryan DuBois, Saffold agreed to release Baumgartner on a $50,000 appellate bond while she files her appeals.

However, she threatened to violate her in a heartbeat and "wipe that smile" off her face.

Baumgartner had pleaded no contest to 11 felony counts of intimidation and retaliation for the purpose of removing the action from Saffold's court where she felt that she could not receive a fair trial due to Saffold's prejudice and move the action to the appellate level where the argument will focus on the law rather than emotions and bias.

Saffold sentenced her to four years in prison on the Markus complaint and four years in prison on the DuBois complaint, to be served consecutively rather than concurrently. One of the pre-trial defense arguments had been that due to the highly prejudicial nature, the complaints should have been severed and not tried together.


She faced a maximum of 75 years in prison based on the charges prosecuted by assistant Cuyahoga County prosecutor Daniel Kasaris.

According to published reports, Kasaris has been quoted as saying "If we keep her away from the Internet and take her vehicle of intimidation away, maybe we can curtail some of this nonsense".

Kasaris and the government had focused on shutting down the blog operated by Baumgartner and DuBois, ErieVoices.com which focused on governmental corruption in northern Ohio. DuBois acquiesced to Kasaris demands and removed the blog from the Internet. However, parts of it can still be viewed at http://erievoicestoo.blogspot.com

Kasaris' statement amounts to unconstitutional prior restraint and seems to indicate that his intent has been to hold her incommunicado and to stifle her allegations of governmental wrongdoing and corruption in northern Ohio, a fundamental exercise of free speech. Although Kasaris and Ottawa County prosecutor Mark Mulligan and others have claimed that Baumgartner's allegations are false, so far there has been no independent investigation of her allegations of wrongdoing which includes drug use and sexual misconduct of public officials as well as illegal contracts and unethical behavior. Kasaris' "evidence" of falseness is simply because Markus has denied all allegations and says no wrongdoing occurred although there is documented evidence of double billings by Markus and of him billing governmental agencies for being in two places at the same time.

According to Baumgartner's husband, Joseph Baumgartner, Saffold has set some unreasonable and quite likely unconstitutional conditions on Baumgartner which include that she cannot file any legal actions in any court---local, state or federal--- without Saffold's approval which immediately raises the issue if Saffold has jurisdiction to attempt to control filings in federal court. This condition may set the stage for Baumgartner to raise a constitutional challenge in federal court to the state's vexatious litigator statute which has never been tested for constitutionality at the federal level.

Saffold also imposed a overbroad and vague condition as well as unconstitutional prior restraint that Baumgartner can't state or have published any defamatory comments. Baumgartner was ordered to continue psychological counseling and pay a $500 fine.

One of the underlying issues in the Baumgartner case and what seems to be a "hot button" topic for Markus is Baumgartner's assertion that the entire visiting judge system in Ohio is unlawful and unconstitutional, an opinion that Baumgartner expressed during a December 2004 civil proceeding at which she was a defendant. Her email to Markus expressing her views on the illegality of the visiting judge system is one which Markus claims intimidated him.

According to Joe Baumgartner, Markus was present in court and gave a "victim's impact statement". Her other accuser, DuBois, whom Baumgartner had financially supported for over a year, did not appear.

DuBois had also been charged criminally for sending emails to Markus but he turned government witness against Baumgartner last Dec. 12 and then, with the assistance and urging of assistant Cuyahoga County prosecutor Daniel Kasaris, filed a complaint against her, claiming that she had intimidated himself and his wife by posting comments on the blog that he and Baumgartner had jointly operated and she had financed.

According to the court docket, DuBois has completed his one year diversion program although the charges to which he pleaded guilty have never been revealed to the public. His case has been marked closed and the records sealed. With the record now acknowledging the year completion, it seemingly indicates that Kasaris and the government used DuBois in an entrapment scheme against Baumgartner.

Baumgartner, 51, is currently serving a 120-day sentence in Ottawa County Jail after being found guilty seven months after trial on 27 misdemeanor contempt charges also lodged by Markus for statements he disliked in motions and statements which she had filed with the court in December 2004, giving rise to question if Baumgartner has been prosecuted twice for the same conduct.

Baumgartner's attorney, Frank Gasper, former Cuyahoga County assistant prosecutor, has stated that he has never seen a case like Baumgartner's. While Baumgartner has been given an appellate bond in Cuyahoga County on felony convictions, to date the Sixth District Court of Appeals has refused to rule on his motion to stay the execution of the sentence in Ottawa County and release her on bond while an appeal is filed. Visiting judge David Faulkner had denied Baumgartner both her right to counsel and trial by jury in the Ottawa contempt charges.

Joe Baumgartner said that his wife and her attorney were not allowed to present any mitigation evidence as allowed by law although Baumgartner was allowed to make a statement during which she again restated that criticisms of public officials and in particular judges are constitutionally protected under the First Amendment. He said that Saffold told his wife that the First Amendment does not cover false speech, but so far, no one has proven that her allegations were false and Kasaris has never entered any evidence into the record, other than Markus' denials, that her speech was false.

According to Mr. Baumgartner, his wife was also found guilty of writing an email to DuBois about Markus which Markus presumably never saw which raises the question of if he had no direct knowledge of it, how he could be intimidated by it.

Joe Baumgartner said that his wife was forced to appear in court handcuffed (for misdemeanor contempt) in a jail uniform. She apologized to the court and to both Markus and DuBois but continued to maintain that the evidence presented against her was not credible or legally sufficient.

He said that after she told the court that she wanted to reestablish her life, Ottawa County prosecutor Mark Mulligan indicated that Sheriff Robert Bratton had tape recorded phone calls that Baumgartner had made to him and to the publisher of The North Country Gazette and said that Baumgartner's statement that she was going to change her behavior wasn't true and that she had asked her husband to engage a paralegal to help with her legal issues. 12-19-06

© 2006 North Country Gazette