Originally Posted - February 17, 2007

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Is disrespecting the judiciary a criminal act, more criminal than obstruction of justice and violating the public trust?

According to retired visiting judge Richard Markus it is.

Public corruption scored another win over free speech in northern Ohio this week in yet another courtroom manipulated by Markus.

Markus is one of the most controversial judicial figures in Ohio, frequently handpicked by Thomas Moyer, Chief Justice of the Supreme Court, to handle the high profile cases involving alleged public corruption in northern Ohio, even over the outcries of the public.

Markus apparently is more supportive of public corruption than he is of the First Amendment and free speech, granting early release for a corrupt sheriff who served five years for stealing from the public and tampering with evidence. Markus' early release of the ex-sheriff came just months after he secured an eight year prison term for former attorney Elsebeth Baumgartner for sending him emails criticizing his judicial performance and telling him that he's corrupt.

Over the objections of the People, Markus released the former Fairfield County sheriff nearly a year early from his prison sentence for convictions of violating the public trust.

Gary DeMastry and his wife, Penny, who was her husband's bookkeeper, had been sentenced to prison in 2002. His wife pleaded guilty to five felonies and although sentenced to 2 ½ years in prison, served only 39 days. The ex-sheriff was sentenced to six years but despite the objections of the prosecutor's office, Markus, the original sentencing judge, shaved nearly a year off DeMastry's sentence and last week released him 11 months early, telling him "You are going to go home tonight to your family".

Most other convicted felons don't get such preferential treatment.

DeMastry, a two-term Republican sheriff, had written a letter to Markus on Dec. 3 asking for an early release.

The ex-sheriff and his wife were arrested in January 2000 following two state audits of the sheriff's office conducted in 1999. An audit released in April 1999 covering the period of 1994 to 1997, indicated that nearly $290,000 was missing from the county. The second audit which was released in August 1999 which covered all of 1998 indicated an additional $42,243 was missing.

Markus ordered restitution of only $10,880 from the ex-sheriff and $6,500 from his wife.

The former public servant had been convicted of racketeering and using taxpayer money from the sheriff's department for his own personal use, often writing checks to himself from the county accounts for restaurant, travel and other personal expenses.

He was convicted in 2002 of 32 counts and although he paid restitution for his crimes, he still reportedly owes $231,000 in court costs.

DeMastry had originally been indicted on 323 counts and after being convicted of 32 of 50 of the charges, he pleaded guilty to five more charges in a deal which allowed him to avoid additional trials on the original indictment. The charges ranged from alleged theft in office, tampering with evidence, conspiracy to engage in a pattern of corrupt activity and engaging in a pattern of corrupt activity.

The DeMastry case was a political hot potato as Republican Party leaders demanded DeMastry's resignation when the audits were first released and refused to endorse him when he sought reelection in 2000. Moyer and the Supreme Court assigned Markus to handle the case.

Markus is continuing to adjudicate cases at age 76 although mandated by the state Constitution to leave judicial office at age 70, circumventing constitutional rule by Moyer's assignments and his own private rent-a-judge business.

In releasing DeMastry, Markus was in essence condoning the former sheriff's pattern of corrupt activity, saying that he'd served the full sentence for all but that charge. He placed DeMastry on five years of probation.

In sharp contrast, Markus had originally sentenced DeMastry to just six years in prison for stealing from taxpayers and obstruction of justice but yet is responsible for the eight year prison sentence of former Oak Harbor attorney Elsebeth Baumgartner in addition to a four month jail term on contempt charges after Markus complained that she had intimidated him by criticizing his judicial actions, calling him corrupt and in particular, challenging his preferential actions in public corruption cases.

Markus, who lives in Fairfield, Ohio, Cuyahoga County, arranged DeMastry's early release in Fairfield County Common Pleas Court. He said that DeMasty had been adequately punished because he had publicly apologized and had a good prison record. Markus said that he felt that DeMastry had been punished adequately.

"The court finds that the defendant's most offensive conduct was a misguided attempt to conceal his failure to account for very substantial discretionary funds, but that he misused a relatively small part of those funds for his personal purposes," the ruling said.

DeMastry isn't the first public official caught up in charges of public corruption that have gotten sweetheart deals courtesy of Markus.

The mandatory retirement age for judges in Ohio is 70, as required by the state Constitution. Retired visiting judge Markus is 76 and is skirting the law through his rent-a-judge service being operated in Fairview, Cuyahoga County. Additionally, Chief Justice Moyer "recalled" Markus to service in 1989 and according to his website, he serves as visiting judge in 26 Ohio counties although each of those counties have their own elected judges. Although elected and appointed judges and justices are required by the Ohio Constitution and state law to take and file their oaths of office and bonds, according to Keith M. Hurley, chief deputy, Cuyahoga County Clerk of Courts, Markus hasn't done either.

The law is explicit---no oath, no office---whether you're recalled, appointed or elected.

So far though, Markus is being shielded by Moyer---apparently in more ways than one.

Markus is not without public criticism and due to his substantial background, including having been an attorney with the U.S. Department of Justice and a former president of the Ohio Bar Association, he seems to be able to command others in the system to bow to his demands, kind of like the Fear Factor.

Markus is highly controversial with his lenient treatment of public figures criminally charged and particularly the use of his position to file complaints against Baumgartner whom he apparently he has targeted as his personal nemesis Markus has been the personal judge of Elsebeth Baumgartner since about 2001 and has intertwined his black robe with his personal animus towards the now disbarred attorney and anyone else who dares to criticize the judiciary. Markus has apparently adopted the phrase "don't get mad, get even".

In filing his complaints against Baumgartner, Markus said it's not proper for Baumgartner to make comments in a matter to "try to demean and embarrass the judge and the court".

It appears that Markus has a rather thin skin underneath that black robe and that he brought charges against Baumgartner simply because he obviously doesn't agree with her opinion of him and his dispensation of the law and apparently doesn't think she should have the right to publicly express her opinion of him. He wanted her criminally punished, jailed and fined, because he considers her statements "to be contemptuous seeking to degrade the court---not only me, but the citizens".

But apparently Markus is more incensed about someone exercising one's freedom of speech as guaranteed by the U.S. Constitution than he is about public corruption, public officials sexually abusing children, grant and public contract fraud, evidence tampering and stealing from taxpayers.

Markus has come under heavy fire for his handling of several high profile cases involving public figures and in one case, even took the virtually unprecedented and highly unethical step of appearing on WNYC, a New York City radio show after he had asked four Ohio newspapers and jurors for advice on the sentencing of the mayor of suburban Cleveland who had been convicted on corruption charges. http://www.onthemedia.org/yore/transcripts/transcripts_030301_sentenced.html

The newspapers were smarter and more ethical than Markus, declining to make any recommendation to him. And Chief Justice Thomas Moyer and the Ohio judicial conduct commission failed to take any action against him although his antics clearly violated the Code of Judicial Conduct.

Vincent Urbin, mayor of Avon Lake, had been convicted in 2001 of four felonies---for having an unlawful interest in a public contract, tampering with evidence and being complicit in evidence tampering.

Although he could have received up to 13 years in state prison for hiding evidence in a police investigation and for steering a city functions to an food establishment managed by his brother, Markus sentenced Urbin to 90 days in the county jail, a fine and court costs. Urbin had been convicted of knowingly approving city contracts to cater events with a food service establishing managed by his brother. In imposing sentence, Markus said, "there's conduct that is offensive here" referring specifically to using a public facility and city employees for his election campaign. "It's a form of theft, I have to sent that message somehow".

In early 2000, Moyer appointed Markus to preside over the Edward Flask criminal corruption case in Youngstown involving his conduct as director of the Mahoning Valley Sanitary District. Flask eventually pleaded guilty to two felonies and seven misdemeanors and admitted to accepting consulting fees in excess of $1.7 from Blue Cross/Blue Shield from May 1993 through Aug. 1997 in return for steering contracts to it.

Flask could have received up to six years in prison and a $17,000 fine. County prosecutors recommended that he be sentenced to at least three years in prison.

The citizens of Mahoning County were outraged and expressed that outrage to Moyer, demanding that Markus be removed from the then pending civil trial brought against Flask and a co-conspirator for the recovery of the public funds taken. Markus claimed that there was no "victim seeking restitution" of the nearly $2 million that Flask had pocketed. The state of Ohio had sued Flask, seeking $2.4 million from him and Frank DeJute, both former directors of the Mahoning Valley Sanitary District.

Although she vocally disagreed with Markus' 90-day sentence of Flask, then attorney general Betty Montgomery refused to file an affidavit of disqualification to remove Markus from the case although she said there clearly were victims in the case, namely the 300,000 residents who received their drinking water from the Mahoning Valley Sanitary District.

And then there's the case regarding Ohio's government accountability laws. In early 2004, Moyer assigned Markus to preside over litigation filed by John Schuette against Liberty Township for violating the state's Sunshine Law dealing with open meetings. In a remarkable display of unconstitutionality, Markus dismissed the case before either side developed any evidence and before the town even filed an answer to the complaint. So much for the Markus form of open government.

In August 2004, the Ohio Court of Appeals unanimously reversed Markus.

And Markus' protection list goes on.

An in-depth review of Markus and his actions against Dr. Baumgartner can be found in an article written by another judicial whistleblower in northern Ohio. This article deals with an ongoing scheme by elected officials in Ohio to silence those who have the courage to act as whistleblowers in exposing corruption involving public officials.

"The recent evidence of Ohio's pay-to-play schemes involving Tom Noe, et al. is somewhat synonymous with what is going on with Ms. Baumgartner and other whistleblowers", the author says. He calls it "you play (expose us); you pay." The author, who has moved from Ohio, has personally experienced this alleged "play and pay" scheme. http://www.northcountrygazette.org/articles/110406YouPay.html

"If you blow the whistle on public corruption in Ohio, you're going to become a victim of those you've had the audacity to expose", watchdog Dave Palmer says. "These corrupt officials are absolutely devoid of any ethics, morality and treat their oaths of office with total contempt. In their world, whistleblowers are the real criminals". http://noethics.net/Ohio_Reporter/Markus/ohio.htm

Baumgartner says she obtained from the Supreme Court of Ohio the record of judicial assignments for Judge Markus dating back to 1998. "Those documents reveal a disturbing pattern of being hand-picked by sitting judges who recused themselves due to some unstated conflicts on cases involving members of organized crime, corrupt public officials and or critics of the judicial system", Dr. Baumgartner says. "Invariably Judge Markus is very soft on organized crime figures and corrupt public officials but throws the book at critics questioning judicial practices", she charges.

Markus' handling of the DeMastry case is a prime example and his own actions vindicate Baumgartner one more time in her criticism of him. He claimed her statements were falsified, however, the record supports Baumgartner, not Markus.

"What is particularly disturbing to me is how obviously the visiting judge system is being used to promote judge shopping by those with the connections to do so", Baumngartner said. "There is simply no attempt whatsoever to ensure that a neutral and detached jurist is assigned the case, rather judges with an express interest in the case are chosen".

"Moreover, Judge Markus, despite being the recipient of public money as a visiting judge and having his private company's overhead paid for by taxpayers while claiming for profit status and taking advantage of tax deductions (his office is run from his home and his car bears the name of Private Judicial Services, Inc) absolutely refuses to comply with ethics disclosures concerning clients of his private judicial services company", Dr. Baumgartner continues. "Thus there is no way for a party to a case to which he is assigned as a visiting judge to learn whether Judge Markus has had prior dealings with parties or lawyers to the case wherein he was paid for services". June Maxam 2-17-07

© 2007 North Country Gazette