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ERIE COUNTY, OHIO----Judicial whistleblower and former attorney Elsebeth Baumgartner of Oak Harbor heads to trial this week in Erie County Common Pleas Court on charges of grand theft auto, felony fleeing and resisting arrest.
But the People, represented by special prosecutor Daniel Kasaris of the Cuyahoga County prosecutor's office, have some major problems with the prosecution of the case from May 2005 according to known facts and discovery in the matter, starting with the alleged probable cause that Bay View Police under the direction of Chief Helen Prosowski claimed she had in trying to detain and arrest Baumgartner initially.
While the matter is scheduled for trial on Tuesday, Feb. 20, visiting judge Ronald Bowman of Lucas County has still not conducted hearings on suppression motions and motions to dismiss submitted by Baumgartner and her attorneys, Frank Gasper and Richard Drucker.
Since the last court appearance on Jan. 29, principals in the case such as probation officer Jody Royster and Judge John Adkins have been deposed under oath with startling admissions in favor of Baumgartner. http://www.northcountrygazette.org/articles/2007/021207OpenSeason.html
http://www.northcountrygazette.org/articles/2007/011907WarrantlessArrest.html
Although the claimed probable cause for the "stop" of Baumgartner as she sat in a vehicle in which she had a financial interest, was an arrest warrant, to date no one has been able to produce a copy of the claimed warrant.
 The entire situation was precipitated by Ottawa County Sheriff Robert Bratton who says he got a "tip" telephonically from someone who claimed there was a warrant for Baumgartner's arrest and that she was at Terry's Tavern in Bay View, Erie County.
However, although Bratton has long claimed that he had a warrant "in his system" for Baumgartner's arrest on a probation violation, he has recently admitted in a sworn deposition that there was no active warrant on file for Baumgartner through NCIC, the FBI's National Crime Information Center.
Prosowski claims that the warrant was for failure to appear but like Bratton and Kasaris, so far she has failed to produce a copy of the purported warrant.
Without a warrant, Prosowski had no probable cause to approach the vehicle, tell Baumgartner she was under arrest and threaten to break into the car if Baumgartner didn't exit.
Without probable cause, all charges against Baumgartner must be suppressed and are mandated to be dropped.
 No complaint was ever filed with police by anyone claiming that Baumgartner had stolen the vehicle which she was driving, a 2005 Kia Sportage and in fact, the registered owner of the vehicle, Baumgartner's business partner, Bryan DuBois, had specifically told Kasaris in an interview before a stenographer on Dec. 12, 2005, with his attorney Jay Milano present, an attorney also financed by Baumgartner and her husband, that she had a financial interest in the vehicle. http://www.northcountrygazette.org/documents/duboisinterview.pdf
KASARIS: Okay, who, the Kia comes back to you?
BRYAN: On paper.
KASARIS: Who paid for the Kia?
BRYAN: She put the down payment.
KASARIS: And who made the payments for the Kia?
BRYAN: She made some of them, I made some of them.
KASARIS: But the car, is it currently titled to you? Do you still own it?
BRYAN: Yes, it's titled to me.
KASARIS: And that night, who drove the car?
BRYAN: I drove it over there. She drove it out.
 According to Baumgartner on or about April 4, 2005, she advanced a $2,000 down payment on the purchase of a 2005 Kia Sportage titled in Bryan DuBois' name with the understanding that the vehicle was part of his compensation in the operation of a website called ErieVoices.com which was owned by the Arbor Group of which she was general manager, and available for company business. Baumgartner or businesses she controlled made or reimbursed Bryan DuBois for all monthly loan payments on the vehicle up through February 2006.
On May 20, 2005 at approximately 8 p.m. Baumgartner said she was eating dinner with DuBois at Terry's Tavern when DuBois received a call from his estranged wife Mandy who had filed a complaint against him for domestic battery and later filed for divorce. He invited her to join in dinner.
She declined and apparently instead called Sheriff Bratton although Bratton won't confirm if she called him at home or through the office dispatch but it is known that Mandy DuBois was the "tipster" to Bratton.
A short time later, Baumgartner says she observed part time police Chief Prosowski enter a building down the street accompanied by a number of Bay View police officers and thought it strange that such a small village would have so many officers on duty. About 15 minutes later, just as defendant had finished eating, she observed Prosowski, and several police officers approaching the restaurant. DuBois gave her the keys to the Kia, which was parked in front of the restaurant on private property and advised her to "get in, lock the doors, I'll pay and need to use the bathroom". Baumgartner said she unlocked the Kia, entered the passenger side and locked the doors behind her.
Part-time Chief Prosowski, who is also a detective with the Sandusky Police Department. approached the vehicle and asked her who she was and Baumgartner says she declined to answer. Prosowski advised she had a warrant for the arrest of Baumgartner who challenged Prosowski to produce it. Prosowski responded she could not produce it but it was a bench warrant from Ottawa County Municipal court. Baumgartner says she informed Prosowski, that Bratton knew that warrant" is no good and you know, you can't seek somebody out, stop them and arrest them for an alleged non-violent misdemeanor violation unless the crime was committed in your presence".
Thereafter, Baumgartner says Prosowski was joined by three other police officers who surrounded the Kia and started loudly threatening her with arrest. Baumgartner said she knew, as did the police officers, if she was arrested in Ottawa County, she would once again be held without bond or hearing for an indefinite time in maximum felony isolation has happened to her previously for an alleged probation violation for an underlying non-violent misdemeanor for which she had already served 231 days.
Despite Kasaris being fully aware that there is no basis for a grand larceny charge against Baumgartner, he has continued for more than a year to prosecute her on the felony charge. Kasaris also acknowledges that he is aware that one of the police officers involved may have acted improperly by chasing Baumgartner in his private vehicle and that the warrant may have been defective, or as Baumgartner characterizes it, a sham warrant. However, Kasaris continues to press to try and coerce Baumgartner into pleading to felony fleeing.
According to the state statues, at best the most Baumgartner could be charged with is a misdemeanor for operating a motor vehicle to willfully elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person's motor vehicle to a stop.
Baumgartner drove towards the Huron County line. Well prior to the county line, Erie County deputies dropped out of the pursuit. Baumgartner was not cited for speeding, running red lights or reckless operation by any jurisdiction. Bay View police did issue a stop sign citation, but this citation was later dropped. In fact, Ohio patrol officers gave interviews to the media that Baumgartner drove cautiously, with speeds never exceeding 70 miles an hour on highways and slowing down at intersections on Rt. 4 so as not to endanger anybody.
Lt Gregilla of the Ohio Highway patrol later advised that the pursuit had been called off because a pursuit was not justified but because the patrol had stop sticks already in place at St Rt. 20 and St Rt. 4. When she was stopped, her vehicle was surrounded by at least four patrol cars, four patrol officers with their guns drawn and ordered to get out of the vehicle with her arms up. Baumgartner complied and was placed under arrest without being advised of a charge or her rights until she instructed the patrol officer to read her rights to her. The vehicle was towed and impounded upon order of Prosowski. She says she was never advised of the nature of the charge for which she was stopped and arrested by Ohio Highway Patrol.
Baumgartner compares her arrest with that of Justice Alice Robie Resnick of the Ohio Supreme Court who left office on Jan. 1 after not seeking reelection. Unlike Resnick, Baumgartner was not under the influence of alcohol and was charged with felony fleeing and eluding, grand theft auto, resisting arrest and failure to obey. However, no charges were filed against Justice Resnick who the Ohio Highway Patrol sought to detain at a gas station in Bowling Green, Ohio after many motorists reported she was driving erratically on I-75 and endangering the lives of others just a few months prior to Baumgartner's arrest.
Resnick did not obey the request of the officer to be detained but took off and was pursued by the Ohio Highway Patrol on I-75 driving a state owned vehicle while under the influence of a blood alcohol level of 0.22. Justice Resnick was not charged with failure to obey a lawful order of a police officer, resisting arrest, felony fleeing and eluding though the video clearly shows she was all over the road and endangering many lives on 1-75. Baumgartner says State employees do not have permission of the State of Ohio to drive state vehicles drunk yet Justice Resnick was not charged with grand theft auto. Justice Resnick openly tried to use her position to avoid being criminally charged, going so far as to suggest she rules in the highway patrol's favor in cases and should be favored by the patrol due her position.
Justice Resnick pleaded guilty to a first degree misdemeanor charge for driving under the influence and instead of 231 days in jail for a first time non -violent misdemeanor and five years of probation like Baumgartner, Justice Resnick received three days of counseling, had her drivers license suspended for six months. She received no probation despite the fact that she endangered the lives of others.
Baumgartner said she later learned from an article published May 21, 2005, that Sheriff Bratton, despite his previously stated personal knowledge that the bench warrant had been issued without probable cause, had unlawfully expanded the radius for the pursuit and had inflamed the situation by falsely suggesting she was dangerous and mentally unbalanced. She said she was placed in the patrol car of Sgt. Tony Myers and advised him that she should be taken to Huron County jail because she was arrested in Huron County which is not contiguous to Ottawa County. Sgt. Myers allegedly replied that he was taking her back to Bay View police because they would be charging her with crimes in Erie County.
Upon arrival at Bay View, she said she was not formally advised of any charges against her or her rights but told to sit and wait for Ottawa County deputies. She said she observed an officer fumbling through her purse. Bay View police then used information obtained from her Florida driver's license to press four charges against her while she was in custody but failed to advise her of the charges. These charges included a third degree felony fleeing and eluding charge committed within the jurisdiction of the Village of Bay View where speeds didn't exceed 35 miles an hour, a misdemeanor charge of failure to obey the lawful signal of a police officer, a misdemeanor charge for resisting arrest and a traffic citation for a stop sign violation. Bay View authorities did not charge her with grand theft auto because the titled owner of the vehicle Bryan DuBois refused to press charges and criticized the pursuit as "Nazi -like" in comments published by the Port Clinton News Herald. Instead of advising, arresting and transporting her to the Erie County jail, she was turned over to Ottawa County deputies and transported to the Ottawa County detention facility under the control of Bratton.
Once in Ottawa County, she said she was held without bond or hearing until May 25. At the hearing, Visiting Judge John Adkins admitted on the record that there was no charging document and when she refused to admit to an uncharged probation violation, Judge Adkins claimed he was the complaining witness and ordered her to be held without bond or formal charge. Ottawa County Municipal Court bailiff/probation officer Jody Roster served her with notice of charged probation violation on May 27. On June 1, she admitted she violated her probation as charged on May 27 by leaving the state of Ohio without permission and not advising her probation officer of her new address.
She was released on probation which was extended to five years despite the fact that she had already served 244 days for the underlying first time non-violent misdemeanor conviction of falsification for criticizing Erie County prosecutor Kevin Baxter at a public meeting.
Upon her restoration to probation, Prosowski appeared at the Ottawa County detention facility and placed defendant under arrest for the charges filed May 20 that were never served upon her. Prosowski detained Baumgartner in her patrol car for a significant amount of time with her hands cuffed behind her back parked outside the Ottawa County jail without serving Baumgartner with charges or advising her of her rights. She was eventually transported to the Erie County jail where she posted $15,800 bond and was released.
On June 2, Baumgartner filed a motion to dismiss the charges in Sandusky Municipal Court prior to arraignment before Judge Erich O'Brien. She moved the court release the Kia impounded since May 20 at the request of her business associate DuBois present in the court room with her. Judge O'Brien said he would have a decision by the next day.
On the afternoon of June 2, Cuyahoga County assistant prosecutor Kasaris obtained an indictment for the same three charges as she had posted bond for in Sandusky Municipal Court plus an additional count of grand theft auto without complaint of DuBois. DuBois had widely published at www.erievoices.com that Baumgartner had authority to use the vehicle because it was a company vehicle. DuBois also published statements from the Ohio Highway Patrol that defendant had not driven recklessly and that there was no basis to charge her with any crimes related to their pursuit as well as exposed several alleged false and or misleading statements made by Bratton as published by the Port Clinton News Herald and Toledo Blade.
After obtaining the indictment, Kasaris requested that an arrest warrant be issued and $150,000 bond set even though he knew she was already on bond from Ottawa County and Sandusky County Municipal Courts respectively. Judge Tygh Tone reduced the bond request to $35,000 but did not give credit for the $15,800 already posted for three of the four counts.
After Baumgartner had been held at Bratton's Ottawa County Jail for 72 hours without hearing and without commitment, Ottawa Judge Frederick Hany denied her due process rights on May 23, 2005, refusing to conduct a hearing.
Franklin County Attorney John Vogel, speaking on Baumgartner's behalf, stated that he was "really dismayed. I don't understand why Ms. Baumgartner has been held for 72 hours without a hearing. She has the same rights as everyone else".
Records then showed that the charges used to issue the alleged bench warrant for Baumgartner's arrest in May 2005 were dismissed in November 2004. 2-18-07
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