Originally Posted - February 12, 2007

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PORT CLINTON, OHIO--- It's "open season" on disbarred Ohio attorney Elsebeth Baumgartner.

So admits Ottawa County probation officer Jody Royster.

Additionally, a counselor for an Ottawa County organization known as "The Giving Tree" which contracts with the Ottawa County Jail to provide inmate services, has allegedly indicated that Baumgartner's life is in danger if she continues "down the path" of exposing legal, judicial and governmental corruption in northern Ohio.

In a sworn deposition Feb. 1, under questioning by attorneys representing Baumgartner in several criminal matters, Royster said that pursuant to terms of probation set by Judge John Adkins in a 2002 case involving Erie County prosecutor Kevin Baxter, Baumgartner was not allowed to file any complaints about anything and if she did so, it would violate the conditions of her probation from a 2002 conviction for falsification for allegedly making false statements at a Port Clinton city council meeting about investors in a ferry boat company in which Erie County Baxter was allegedly part owner.

When one attorney asked Royster hypothetically if that would mean that if Baumgartner was raped and reported it to the police, he would revoke her probation, Royster said yes.

"Let me get this straight, what you are in effect saying is that it's open season on Elsebeth Baumgartner. That anyone can do anything to her and she has no recourse", the attorney asked Royster to which the probation officer responded in the affirmative, saying "it's not my call".

What's more, in a separate sworn deposition of Judge Adkins, taken on Jan. 31, Adkins reportedly admitted that in essence there is a "judicial hit" on Baumgartner saying that he was appointed by Chief Justice Thomas Moyer to handle the politically charged case of Baumgartner and in essence, allegedly ordered to stifle her and insure a conviction which ultimately led to her disbarment and later revocation of her pharmacy license.

Moyer had appointed retired visiting judge Richard Markus to handle a defamation action brought against Baumgartner in 2004 by an official of the Benton-Carroll-Salem school district of which her husband, Joseph, is a former board member.

Baumgartner has long tangled with Moyer, challenging his legislating from the bench with the creation of the retired visiting judge program which she says is unconstitutional and unlawful. She says that Moyer has a long standing friendship with Markus, a principal complainant against her and has charged that Moyer is allegedly involved in case fixing, particularly in politically charged cases such as hers.

Moyer has controlled the appointments of virtually every judge in matters concerning her. Moyer has his own prejudice and conflict of interest involving Baumgartner as in November, 2002, she attempted to have Moyer federally investigated for allegedly "manipulating the Ohio visiting judge system in order to affect political case outcomes". As a result of her charges of governmental, and in particular judicial, corruption and whistleblowing activities, Baumgartner was disbarred by the Ohio Supreme Court of which Moyer is Chief Justice, describing her as a "threat to the public safety".

Baumgartner is currently incarcerated in Ottawa County Jail where she's been since late November, serving a 120-day sentence for contempt, a sentence handed down by visiting judge David Faulkner seven months after a trial was held last April on charges filed against her by Markus for allegedly disrespecting him by calling him a rent-a-judge and criticizing his judicial performance.

Not only did Moyer appoint Markus to Baumgartner's cases but in his decision finding Baumgartner guilty of 27 counts of contempt, Faulkner wrote that one of the contempt charges was "simply outrageous" in which Baumgartner "….accuses both Judge Markus and Chief Justice Moyer of mob connections and perverted behavior". Faulner opined that "it is nothing more than an attempt to intimidate, demean and distract the court from its function".

In that Moyer was personally involved in the Baumgartner case, judicial canons would ethically preclude him from appointing the judges to hear cases against Baumgartner, especially in the contempt case, in essence doing exactly as Baumgartner has accused him, allegedly manipulating the system in order to assure the outcome of the case.

So far the appellate courts have stonewalled her attempts to appeal the contempt conviction and a writ of habeas corpus challenging the constitutionality of her incarceration.

The jail term was imposed as Baumgartner was preparing to go to trial two weeks later in Cuyahoga County on charges that she intimidated Markus and her former business partner and wife by emails and postings on her own web site.

Baumgartner is scheduled to go to trial Feb. 20 in Erie County Common Pleas Court before another retired visiting judge appointed by Moyer, Ronald Bowman, on charges of grand theft, felony fleeing and resisting arrest for an arrest occurring in Erie County on May 20, 2005.

According to Baumgartner's husband, although there are three court orders in place dictating that Baumgartner continue counseling and take medications prescribed for her, Bratton and the Ottawa County Jail are allegedly withholding her anti-anxiety medications as prescribed, no reason given. Her own doctor encountered difficulty and "a hard time" when trying to visit Baumgartner in jail.

When the former attorney was ordered to see a counselor sent into the jail from an organization known as the Giving Tree, the counselor reportedly told her that another evaluation would be done on her to which she responded that she had undergone seven such evaluations and found to be mentally sound with the exception of a stress disorder caused by legal abuse. The counselor, known only as "Mike", allegedly told her that if she continued to "go down that path" or in other words pursue allegations of governmental corruption, that she would be "dead".

Dr. Baumgartner of Oak Harbor, is a long-time critic of Ohioan government. A former patent and biotech attorney as well as the owner of a DNA lab, Baumgartner has alleged massive federal and state grant as well as abuses of power and position by public officials, particularly numerous judges in northern Ohio.

According to documents posted on the website of the Ottawa County Sheriff's Department, Bratton has contracted with the Giving Tree of Port Clinton to provide "inmate services".

The special prosecutor in the Erie County grand theft case, Daniel Kasaris, hand picked by Erie County prosecutor Baxter after Baxter disqualified himself due to his egregious conflict of interest due to the 2002 charge against Baumgartner, has already admitted that there is no complainant on the grand theft charge and that there is no legal basis for Baumgartner being charged with stealing her own corporate vehicle.

Ohio law requires that the court appoint special prosecutors following the disqualification of the county prosecutor, legally prohibiting the conflicted prosecutor from choosing who he wants to prosecute the matter.

Currently at issue is the felony fleeing charge for which Kasaris is trying to coerce a guilty plea and Bowman has reportedly offered a plea deal in which she would plead no contest to felony fleeing. In exchange for Baumgartner entering a no contest plea to felony fleeing, Bowman would then sentence Baumgartner to one year in state prison but grant her an appellate bond which would purportedly allow her to remain free while she appeals the "conviction". According to her husband, she is refusing any deal as she said it would not be voluntary plea but rather coerced.

Baumgartner says the state and Kasaris have no legal grounds to prosecute her as there was no legal warrant or probable cause to stop, seize and arrest her on May 20, 2005, after Ottawa County Sheriff Robert Bratton called the Erie County Sheriff's Department and told them that Baumgartner was having dinner at restaurant in Port Clinton.

Baumgartner's attorneys, Frank Gasper and Richard Drucker, have been conducting pre-trial depositions of the actors in Baumgartner's arrest, including Royster who had allegedly made an unsworn complaint to the court for Baumgartner's arrest. Others deposed were Judge John Atkins who had allegedly issued a warrant for her arrest, and Bratton.

Although Bratton has long claimed that a warrant existed for Baumgartner's arrest, he has now reportedly admitted under oath in a sworn deposition taken Feb. 1 that he entered Baumgartner's name into the National Crime Information Center database (NCIC), a computerized index of criminal justice information maintained by the Federal Bureau of Investigation, and found no active warrant existing for Baumgartner.

He has also reportedly admitted under oath that when he was requested to provide a copy of the arrest warrant, he refused to do so but now maintains that he doesn't need a warrant to effect an arrest. The Constitution and case law precedent contradicts him.

Nevertheless, according to the arrest report produced by Helen Prosowski, chief of the Bay View Police, and information provided to The North Country Gazette by Bratton himself, Bratton contacted the Erie County Sheriff's Department, advised he had received a "tip" from an informant about the location of Baumgartner and that there was purportedly a warrant for her arrest.

However, Bratton says the warrant was for a probation violation. Prosowski says it was failure to appear but neither can produce a copy of the warrant and Kasaris has thus far failed to produce the warrant although it is clearly exculpatory evidence as without a valid warrant, there was no probable cause to stop, pursue, search and seize Baumgartner.

In his letter to NCG dated Nov. 26, 2006, responding to the newspaper's public records request for a copy of the warrant and arrest records, Bratton in essence admitted that no warrant for Baumgartner existed as he stated, "Ohio law does not dictate to me as Sheriff that I generate a nonexistent report for your satisfaction".

In his initial response to NCG's public records request, Bratton had stated that "On the evening in question, there was an active warrant issued by the Ottawa County Municipal Court. You may wish to check those files to obtain copies of the arrest warrant".

When pressed by the newspaper to produce a copy of the warrant pursuant to Ohio Law, Bratton refused to do so and said that all future requests should be sent to his legal counsel, Ottawa County prosecutor Mark Mulligan which indicates that Mulligan also knew that Baumgartner's arrest was a warrantless arrest and a unlawful arrest violative of her Fourth Amendment rights.

Baumgartner had unsuccessfully challenged Mulligan for the office of Ottawa County prosecutor in 1994.

Bratton had also stated in writing to the NCG on Nov. 2 that "In order to set the record straight, on May 20, 2005, when Mrs. Baumgartner was pursued, that action had nothing to do with the Ottawa County Sheriff's Office. Mrs. Baumgartner was pursued by another law enforcement agency for not stopping when requested to do so by several emergency vehicles. The grand theft auto likewise has nothing to do with Ottawa County, and resisting arrest likewise has nothing to do with Ottawa County. There actions were by the Erie County Sheriff's Office".

However, the entire situation of May 20, 2005 which resulted in Baumgartner's arrest was precipitated by Bratton on the basis of a "tip" he received regarding Baumgartner's location. But there was no warrant and no legal cause for Bratton to call the Erie County Sheriff's Department to cause Baumgartner's arrest.

Bratton had replied to NCG that "You stated that you question who tipped off law enforcement regarding Mrs. Baumgartner. I received the phone call in that regard, and at this time I cannot recall who that individual was who contacted me. However, I requested that Erie County Sheriff's deputies check the location where she was said to be".

Bratton in essence admits that he set the wheels in motion to cause an unlawful arrest of Baumgartner, without warrant, merely on a phone call from an "individual" who was later learned to be Mandy DuBois, the jealous wife of Bryan DuBois, Baumgartner's business partner. In January, 2005, five months previous to causing Baumgartner's arrest, Mandy DuBois had filed a complaint of domestic abuse against her husband and had filed for divorce.

DuBois and his wife later reconciled and teamed up to file a complaint against Baumgartner, causing a search of her house and alleging that Baumgartner had intimidated them by posting comments on the blog operated by her and DuBois, ErieVoices.com.

A month after Baumgartner was arrested, in June 2005, the Sixth District Court of Appeals handed down a decision in State v. James Michael Young , a case prosecuted by Baxter, that dictates that the charges against Baumgartner must be dismissed http://co.lucas.oh.us/Appeals/DecisionsPDF/2251.pdf

In the case of Young whose car was pulled over and he was arrested for drug possession, contrary to the state's suggestion, the purpose for pulling over Young's Cadillac was not to conduct a brief investigatory stop. Rather, the police stopped the Cadillac for the sole and immediate purpose of arresting appellant. Consequently, the applicable standard to the vehicle stop and appellant's subsequent arrest is that of "probable cause," not the less stringent Terry stop standard, a "reasonable, articulable suspicion", the court wrote.

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 defendant as relayed by a DEA agent. Although that information may have alerted the 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 appellant was about to commit any criminal acts".

In the Young case, the appellate court ruled that despite the "tip" information, without something more to indicate criminal activity, as in the Baumgartner situation, Young's actions were insufficient to establish probable cause to justify the stop and arrest. Although Young may, indeed, have been on his way to complete the deal to purchase cocaine, in this case, the police acted prematurely and in violation of the United States and Ohio Constitutions. As a result, the stop was illegal, appellant's arrest was illegal, and any evidence obtained subsequent to the arrest is tainted. "Therefore, the trial court erred in denying Young's motion to suppress all evidence obtained as a result of the arrest and search, and his convictions must be vacated" in Erie County Court, the appellate court had decided.

Baumgartner has long had a suppression motion before the court on these very grounds in addition to a motion for dismissal but so far, no suppression hearing has been held and the Young case along with a 1974 case dictate that the Erie County charges against Baumgartner be dismissed as the stop and arrest were illegal and in violation of her rights.

The 1974 Ohio Supreme Court decision in State v. Timson (311 N.E. 2d 16) 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. The Supreme Court held that an arrest without a warrant is constitutionally invalid unless arresting officer, at the time of arrest, has probable cause to make it.

Even though the trial judge has allegedly acknowledged the cases of Young and Timson, he is reportedly still trying to force the plea deal rather than dismiss the case as is mandated in order to achieve a wrongful conviction, knowing that any conviction is likely to be overturned if Baumgartner is allowed to file an appeal.

While Bowman and Kasaris are trying to force a no contest plea to the felony fleeing charge, Kasaris has filed a motion in Cuyahoga County Court before Judge Shirley Strickland Saffold to revoke Baumgartner's appellate bond there.

Baumgartner had entered a no contest plea in Cuyahoga County in December to the multiple counts of intimidation and retaliation brought against her by retired visiting judge Markus and the DuBoises. Baumgartner was sentenced to eight years in state prison but was supposed to be allowed to remain free on appellate bond while she perfected her appeal.

But Kasaris and Mulligan ensured that wouldn't happen as two weeks before the Cuyahoga County case, Baumgartner was sentenced to 120 days in jail for disrespecting Markus by telling him he was corrupt and a rent-a-judge.

It appears as though the game plan is to block all attempts of appeal and release of Baumgartner in the contempt case and as soon as she completes that sentence, insure that she remain incarcerated by trying to force a plea in the felony fleeing case. Thus Baumgartner would remain incarcerated and not be able to assist with the appeal of the Cuyahoga County free speech case.

Although Saffold had the authority to sentence Baumgartner in Cuyahoga County, she lacked the jurisdiction to grant an appellate bond or to set conditions on that bond as only the appellate court can do so. Although Kasaris has now filed a motion before Saffold seeking to revoke Baumgartner's bond in that case because he claims that she violated the conditions by trying to act pro se in the ongoing criminal matters against her, Saffold has no authority to revoke her bond as she had no authority initially to impose any conditions.

She would only retain jurisdiction in the Baumgartner case if she had been placed on probation which she was not but rather sentenced to eight years in prison for in essence criticizing a judge and exercising her free speech rights.

The prosecutorial misconduct in the Baumgartner case abounds.

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 under the Fifth Amendment, a denial of due process, and automatic grounds for dismissal. In the Baumgartner case, it appears that Kasaris knows that there's no warrant and is continuing to move forward in prosecuting Baumgartner in total bad faith. He has already 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.

Mulligan too allegedly knows that Baumgartner's May, 2005 arrest and subsequent was illegal and unconstitutional.

After The North Country Gazette's original public records request in November for the warrant Bratton had claimed was the basis for Baumgartner's arrest, when an additional public records request was submitted in December for a copy of the phone log and dispatch tape of the call purportedly received by Bratton, a copy of the Ottawa County Sheriff's policy for warrant arrests and pursuits and a copy of all incident reports regarding the arrest and jailing of Baumgartner in Ottawa County Jail for 13 days during May and June 2005, Bratton responded that he was refusing to respond to the request, although Ohio law requires him to do so, and advised he would not respond to any future public records requests concerning Elsebeth Baumgartner, in essence engaging in unconstitutional prior restraint and in violation of Ohio's Public Records Law.

Bratton wrote that "Your attorney should contact our attorney, the Honorable Mark Mulligan regarding your most recent public records request. Mr. Mulligan's office is located at 315 Madison Street, Room 205, Port Clinton, Ohio 43452 and his telephone number is (419) 734-6845", indicating that Mulligan is fully knowledgeable that no arrest warrant exists and that although Bratton incarcerated Baumgartner for 13 days, there are no incident reports, arrest reports or commitment giving cause for her incarceration in the Ottawa County Jail. This article is owned by The North Country Gazette and may not be republished. 2-12-07

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