Originally Posted - January 19, 2007

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Embattled disbarred attorney and judicial whistleblower Elsebeth Baumgartner is scheduled to stand trial on Jan. 29 in Erie County on charges that she stole her own corporate vehicle, resisted arrest and engaged in felony fleeing.

Prior to that trial, retired visiting judge Ronald Bowman will conduct a suppression hearing and hear a motion to dismiss the charges.

The crux of the whole case rests on an arrest warrant which is said to exist but the only thing is, no law enforcement agency, including the arresting agency of Bay View Police under the direction of Police Chief Helen Prosowski, will produce a copy of the warrant.

Ottawa County Sheriff Robert Bratton who initiated the entire attack on Baumgartner based on a tip from an informant, now known to be the jealous wife of Baumgartner's former business partner, Bryan DuBois, says he had the purported arrest warrant entered into his database. However, so far, he hasn't produced a copy of the purported warrant either nor has he produced any arrest or incident reports to justify her jailing in the Ottawa County Jail for 13 days without a hearing.

There's also the conflicting statements about the underlying charge for the warrant. Prosowski says it's for failure to appear, Bratton says it's for a probation violation. Thing is, the case for which Bratton asserts that Baumgartner had been sentenced to probation had been dismissed. When a case is dismissed, any sentence which has been handed down is vacated.

Daniel Kasaris (left), assistant Cuyahoga County prosecutor who is acting as a special prosecuting attorney in Erie County on appointment of his former boss and long time nemesis of Baumgartner, Kevin Baxter (right), hasn't produced a copy of the warrant either under discovery. However, according to Ohio law, if a prosecutor disqualifies himself such as Baxter did due to conflicts of interest, it's the court, not Baxter, who appoints a special prosecutor.

In that the warrant is a crucial piece of evidence on which the whole case revolves, withholding of that exculpatory evidence is what is known as a Brady violation and automatic grounds for dismissal.

Kasaris has already reportedly admitted in several circles that he knows he has no legally prosecutable case against Baumgartner in Erie County, yet he's forging ahead, trying to force her to plead guilty.

Baumgartner was arrested in May, 2005 in Erie County and in June, 2005, the Sixth District Court of Appeals handed down a decision in State v. James Michael Young that dictates that the charges against Baumgartner must be dismissed. http://co.lucas.oh.us/Appeals/DecisionsPDF/2251.pdf

The Young decision also cites a 1974 Ohio Supreme Court decision in State v. Timpson (311 N.E. 2d 16) which held that even though police officers had been told that a warrant existed for the arrest of an individual, that no warrant was produced and therefore the warrantless traffic stop and arrest of the defendant was invalid. An arrest without a warrant is constitutionally invalid unless arresting officer, at the time of arrest, has probable cause to make it.

At the time that Prosowski and her Bay View Police approached Baumgartner sitting in her car and told her she was under arrest without showing a warrant or thereafter producing a warrant, there was no probable cause to stop, seize and search Baumgartner. There is no indication from the incident report produced by Prosowski of Baumgartner's arrest that Bratton ever faxed her agency a copy of the purported warrant or ever produced to anyone a copy of the warrant he claimed he had.
http://www.northcountrygazette.org/articles/121206HidingWarrant.html
http://www.northcountrygazette.org/articles/082306BiasPrevails.html
http://www.northcountrygazette.org/articles/2007/010607HeavyHands.html
http://www.northcountrygazette.org/articles/120106ErieToo.html

The U.S. Supreme Court has held that a warrant is constitutionally invalid unless the arresting officer had probable cause to make it at that time. To have probable cause, the arresting officer must have sufficient information derived from a reasonably trustworthy source to warrant a prudent man in believing that a felony has been committed and that it has been committed by the accused.

At best, even if a valid arrest warrant existed, it would have been for a misdemeanor, not a felony.

At the time of Baumgartner's warrantless arrest, Bay View Police nor Ohio Highway Patrol nor Erie County Sheriff's Department had no information that Baumgartner had committed a felony or that a felony had been committed. For those reasons it appears her arrest on May 20, 2005 in Erie County was and is constitutionally invalid and Daniel Kasaris is engaging in prosecutorial misconduct by not only refusing to produce the alleged warrant and for prosecuting a case he has allegedly acknowledged he knows has no legal basis.

Further, Kasaris is asserting that Baumgartner's plea deal in Cuyahoga County included an agreement that she would plead guilty to felony fleeing in Erie County. Baumgartner had entered a no contest plea in Cuyahoga County before Commons Pleas Court Judge Shirley Strickland Saffold to charges of intimidating Judge Markus with the stipulation that she would be granted an appellate bond granting her release while her appeal was perfected.

Baumgartner says she never agreed to plead guilty to the Erie County charges which she has long contested due to the invalidity of the alleged warrant. Additionally, Saffold would have no jurisdiction in accepting a plea in an Erie County case.

In the Young case, as in the Baumgartner case, the purpose for pulling over the vehicle was not to conduct a brief investigatory stop. (Baumgartner's car was parked in a parking lot when police rushed it and told her she was under arrest and to get out of the car or they would break in the windows) Rather the police stopped Young's vehicle for the sole and immediate purpose of arresting Young. Consequently, the applicable standard to the vehicle stop and subsequent arrest is that of probable cause, not the less stringent Terry stop standard, a "reasonable articulable suspicion".

The record in the Young case revealed that the only facts and circumstances known to police regarding a belief that "criminal conduct was afoot" was the "tip" from a federally indicted individual as relayed by a DEA agent. Although that information may have alerted police to the potential for criminal activity, justifying the surveillance of Young, there was no actual evidence of any criminal activity at the time of his arrest which reasonably indicated that Yong was about to commit any criminal acts.

These circumstances nearly mirror the Baumgartner case.

While incarcerated at the Ottawa County Jail, serving a 120-day sentence for contempt for expressing her opinion about Judge Markus, she has penned a letter to retiring visiting judge Ronald Bowman who has been assigned, at age 76, to hear the Erie County charges after the previous judge in the case, Richard Knepper, recused himself.

Baumgartner had been scheduled to go to trial on the Erie County charges in early September 2006 but the trial was never formally canceled and Kasaris failed to show, in essence failing to prosecute which would require immediate dismissal of the charges. Additionally, although the trial was never held, at no time since that date has Kasaris announced trial readiness, thus the issue of violation of speedy trial rights in the May, 2005 arrest is also a factor in the Baumgartner case.

Baumgartner's letter to Judge Bowman filed this past week follows:

Judge Ronald Bowman
Erie County Common Pleas Court
323 Columbus Ave.
Sandusky, Ohio 44870

Dear Judge Bowman:

I write to memorialize my concerns with actions that I believe have irreparably impaired my ability to obtain a fair trial.

This case has pended since May 20, 2005 (my 1st arrest) and I have spent 104 days in jail in this case, 67 days in Cuyahoga County on a related case also prosecuted by Mr. Kasaris, and 51 days in Ottawa County on yet another related case for Contempt of Court. All the cases arise from my criticism of Erie, Cuyahoga and Ottawa County Prosecutor's offices and the alleged use of the retired visiting judge system to obtain pre-determined outcomes.

The Ohio Supreme Court has held that a delay of over a year is presumptive of violation of the right to a speedy trial.

This case was supposed to be tried on 6-1-06. On that date I insisted on a hearing on my pending motion to dismiss which was denied by Judge (Richard) Knepper in a CLOSED HEARING from which the media and my witnesses were barred. When I said let's go to trial, then I was found in direct Contempt of Court and held for 45 days. In order to toll speedy trials, Judge Knepper referred me for a third competency evaluation without any prima facie showing. (Two prior evaluations were obtained by Mr. Kasaris in Cuyahoga County)

On July 17, 2006, the evaluation was made part of the public record in violation of HIPAA law and the police incident reports which I have been denied for 20 months were revealed to have been provided to the doctor but not the defense. At this hearing I raised the issue of speedy trial violation, signed a waiver until the 9-5-06 trial date, reserving all prior rights to assert speedy trial violations.

On about 8-17-06 I hired attorney Loretta Riddle of the Donald Harris law firm as trial counsel and gave her a $12,000 retainer. That evening I received in the mail an entry from the Court setting a hearing on a motion to revoke my bond because I appeared at a bankruptcy hearing involving my former business partner, Bryan DuBois to protect my interests, and I allegedly engaged in the unauthorized practice of law in the Elizabeth Ohlemacher case according to Prosecutor Baxter.

The documents revealed that Mr. Kasaris had obtained the hearing data via an ex parte request to Judge Tone.

I immediately prepared a Notice to the Court of alleged bankruptcy fraud and other misconduct. This noticed was faxed to Judge Knepper's home office and provided to the Sandusky Police Chief.

I appeared on 8-18-06 with a large number of supporters. I informed the Court that the State was clearly engaged in ex parte communications with the Court. (8-11-06, not mailed until 8-16-06) and that Mr. Kasaris appeared to be aiding and abetting a significant fraud on the U.S. Bankruptcy Court as well theft of over $85,000 in assets from my family's business. Mr. Kasaris falsely claimed that I stalked Mr. DuBois by following him to the Court hearing. This is a logistical impossibility because I live 30 miles west of Sandusky and the hearing was in Toledo. When that argument failed, Mr. Kasaris attempted to argue the unauthorized practice of law claim by using documents filed by (Kevin) Baxter in the Ohlemacher case. I informed the Court that I had just been served a subpoena in that matter, that I had retained counsel in this case and that I expected the Court's protection as a witness in a court proceeding. Judge Knepper told Mr. Kasaris "don't even go there". He then recused himself from this case claiming his schedule was too busy. At no time did the State or Court agree to continue the 9-5-06 trial date.

On 8-21-06 I appeared pursuant to subpoena in the Ohlemacher Case and Judge Knepper had me removed from the court room while Beth's mother testified. The next thing I knew I was arrested because Judge Knepper revoked my bond in this case without a charge being filed and without jurisdiction as he had recused himself three days earlier.

I was held 46 days without any judicial officer setting the required hearings, this despite the fact the Court has three judges and numerous magistrates, all of whom are authorized to hear bond motions. My trial date passed on 9-5-06 and 30 days later I was placed on bond by you.

As of 10-5-06 giving all benefits of doubt to the State 315 days had passed under the statutory provisions. Under Barker v Wingo factors, my constitutional right to a speedy trial has been presumptively violated.

The most outrageous abuse in this scenario is the fact that per O.R.C. 2317.29 I had absolute immunity from arrest and I had informed the Court. My lawyer who I paid $12,000to defend me was frightened and I retained Derek Farmer to reinstate my bond and try this case.

Mr. Farmer informed me that an Erie County Judge had approached him after our hearing and told him that Mr. Kasaris had no case and to expect a misdemeanor deal soon. Mr. Farmer was then suspended from the Bar and I was again without counsel in early November 2006 just prior to trial in Cuyahoga County and sentencing on contempt in Ottawa County.

Under duress, I hired Richard Drucker, Frank Gasper and Mike Peterson in Cuyahoga County at $25,000. This money was in addition to $25,000 that I had spent on attorney Jeff Kelleher who filed some motions but made no effort to prepare for trial.

It became evident that I would not receive a fair trial in Cuyahoga County and I reluctantly agreed to a plea deal in which I was promised would include probation in Cuyahoga County and appellate bonds in Cuyahoga and Erie County. Those representations/promises were breached and I found myself incarcerated in Ottawa County for Contempt of Court while I had an appellate bond for felonies in Cuyahoga County. My jailing obstructed all efforts to present evidence and to assist in my defense in Erie County as well as in my appeals.

My pending motions to suppress and to dismiss for selective prosecution need to be supplemented. Many other motions such as speedy trials and to compel for with- holding exculpatory evidence also need to be filed to protect my rights.

Ms. Riddle has refused to provide an accounting of funds and I have found that as long as I am incarcerated it is impossible for counsel to defend me, as I cannot assist in my defense.

Lastly, I assert that this entire prosecution was maliciously instituted against me to retaliate for exposing some officers of the court involvement in crimes involving the sexual exploitation of women and children, drug abuse and/or theft in office.

The Harold Butcher, James Hofmann, James Fitzpatrick, and Donald Binette cases coupled with published reports of failure to execute warrants for rape and Elizabeth Ohlemacher's allegations prove there is a double standard and that the courts and law enforcement are not seriously protecting the rights of women and children.

Mr. Kasaris gave 30 days house arrest to an Erie County Commissioner who terrorized a 14 year old black girl for sex yet he continues to prosecute me for grand theft auto despite knowing since June 2005 that I had authority to drive the company vehicle. He also insists that I plead to a felony despite the fact that Ohio State Highway Patrol Officers issued a press release stating there was no cause to arrest me.

I am a 51 year old married mother of two adult daughters. My husband and my father before him set high standards for honorable masculine conduct.

Honorable men do not harass and intimidate women to prove their manhood. On May 20, 2005 I drove away from an unlawful arrest after the police could not produce a warrant and threatened to hurt me. Just as Davan Hahn implored you to protect her from predator James Fitzpatrick, I ask you to order an inquiry into my allegations in this case and that there has been a cover up by law enforcement of the manner of death of Darlene Matthes in order to protect Erie and Ottawa County law enforcement misconduct, including the sexual exploitation of children. I was sincerely in fear for my safety on May 20, 2005 and remain so to this day.

© 2007 North Country Gazette