Originally Posted - February 24, 2007

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ERIE COUNTY, OHIO---Although visiting judge J. Ronald Bowman of Lucas County has denied motions to dismiss in the grand theft and felony fleeing case against former attorney Elsebeth Baumgartner in Erie County Common Pleas Court, the stage is now set for the reversal of any conviction should the matter go to trial or even in a no contest plea deal in exchange for appellate bond.

More importantly, with the admission of special prosecutor Daniel Kasaris that the prosecution has lost the hard drive of one of the computers seized last year from Baumgartner after the execution of a search warrant, the entire case against her in Cuyahoga County may be compromised and required to be reversed due to the disappearance of evidence in the case.

Bowman denied the suppression motion brought by Baumgartner and her attorneys, Frank Gasper and Richard Drucker in the grand theft case pending against her in Erie County. The defense had moved for dismissal and suppression of all charges because so far, the prosecution hasn't been able to produce the warrant that they say was the probable cause to detain Baumgartner, threaten to break the windows out of her car and arrest her on May 20, 2005.

At hearings held this week, Baumgartner's attorneys challenged on the record the validity of the warrant.

Baumgartner was arrested on charges of grand theft, felony fleeing and resisting arrest after Bay View Police Chief Helen Prosowski and several officers approached Baumgartner as she sat in a vehicle in the parking lot of Terry's Tavern. Prosowski claimed she had a warrant for Baumgartner's arrest but could not produce it. Brandy Adkins, an officer with Bay View, threatened to break in the windows of the vehicle if Baumgartner did not get out.

Saying that she was driving to the next county to turn herself in because she didn't feel that she would be treated fairly in Erie County, Baumgartner drove the vehicle out of the parking lot and was eventually pursued in a low speed chase by three police agencies and stopped at the Huron County line. http://www.northcountrygazette.org/articles/2007/021807TrialToOpen.html

Prosowski and other officers had responded to Terry's Tavern after they had been notified by the Erie County Sheriff's office that Baumgartner was present there with her business partner, Bryan DuBois (left). Ottawa County Sheriff Robert Bratton (right) had contacted the Erie County Sheriff's Department after receiving a "tip" from an anonymous person, later learned to be Mandy DuBois, wife of Bryan DuBois. While Prosowski says the warrant was for failure to appear, Bratton says it's for a probation violation. http://erievoicestoo.blogspot.com/   But never can produce a copy of the warrant and Bratton has since testified in a sworn deposition that when he checked the National Crime Information Center (NCIC) there was no outstanding warrant for Baumgartner's arrest.

It was later learned that Bratton had without legal authority extended the radius for the alleged Ottawa County warrant to be executed. Prosowski and other officers including an off-duty officer using his private vehicle, chased Baumgartner after she refused to exit her vehicle and left the parking lot.

No traffic citations were issued as a result of the chase and Baumgartner's vehicle was eventually halted by using stop sticks. The Ohio Highway Patrol referred to the chase as "low speed" and a veteran officer of the agency testified at the hearings last week it was the first and only low speed chase he had ever experienced.

Although Baumgartner's attorneys tried to suppress all evidence regarding the chase and eventual arrest, saying that it was the result of a Fourth Amendment violation and the "fruit of a poison tree" in that the police had no legal right to "stop" Baumgartner originally, Bowman ruled that the information including video from the patrol cars showing the chase and testimony of officers, Prosowski and the Ohio Highway Patrol would be allowed at Baumgartner's trial on the fleeing charge, if there's a trial.

No trial date has been set.

Special prosecutor Daniel Kasaris has finally withdrawn the grand theft charge against Baumgartner. No one had ever filed a complaint that she had stolen the vehicle in which she had a financial interest, a fact Kasaris has known since at least December 2005 when he was so advised by Baumgartner's former business partner, Bryan DuBois.

DuBois also testified at the hearings this past week before Bowman.

Last February, Kasaris and Robert Matuszny, an investigator employed by the Cuyahoga Count prosecutor's office, drew an application and affidavit for a warrant to search Dr. Baumgartner's residence, seeking to locate and seize Dr. Baumgartner's computers.

The warrant was issued, signed by Judge Frederick Hany of the Ottawa County Municipal Court, commanding Kasaris's agents that "as it relates to any computer" they were to "turn on, open, examine, review, take it apart, remove the hard drive if necessary, copy the hard drive or any drive relating to any computer or look at or into any computer hardware, software, or disc." They raided her house and seized four computers, a zip drive, documents and papers.

After initially indicating it would return the computer hard drive reasonably before Baumgartner's scheduled trial in Cuyahoga, the state said it has no intention of giving it back, and could hold them for a year or more.

Now, a year later, Kasaris says the reason it won't give the hard drive back is because it's been lost. Without the hard drive, the prosecution cannot prove that Baumgartner sent any emails to retired visiting judge Richard Markus as had been charged in Cuyahoga County, the basis for the multiple counts of retaliation and intimidation against her.

She pleaded no contest in a plea bargain deal in exchange for an appellate bond which would have presumably guaranteed her freedom to help prepare her appeal in the matter.

But two weeks before the December trial was scheduled in Cuyahoga County before Judge Shirley Strickland Saffold, visiting judge David Faulkner suddenly rendered a decision in a contempt trial held seven months earlier in Ottawa County, also based on complaints made by Judge Markus whose feathers were ruffled due to criticisms of his judicial performance. Baumgartner was sentenced to serve 120 days in Ottawa County Jail after Faulkner found her guilty of 27 counts of contempt.

In Cuyahoga County, Baumgartner has been sentenced to eight years in prison for allegedly sending emails to Markus.

But with the evidence in the case missing and perhaps a situation of tampering with evidence, case law precedent mandates that the Cuyahoga convictions be set aside and case dismissed as the prosecution have no direct proof it was Baumgartner who sent emails to Markus.

Jeff Kelleher, Baumgartner's attorney at the time the search warrant was executed, said that "the State now possesses a treasure trove of Dr. Baumgartner's private, personal and sometimes intimate correspondence and other writings, much of which is directly related to her defense of this case and other charges in other courts".

"The computers contain virtually all of Dr. Baumgartner's work generated over several years; her files began as she was practicing law up until 2003, and were generated through almost the hour of the search", Kelleher told the court. As a former practicing attorney, "she was deeply engaged in all facets of preparing her defense to the indictment. Most significantly for the purposes of this motion, she was performing legal research to supplement her counsel's work, much of it in the highly germane area of the First Amendment; she was gathering email correspondence between herself and others, including but not limited to her attorneys, Judge Markus, Bryan Dubois and Mandy Dubois, a good deal of which will prove to be exculpatory of her culpability; she was gathering postings on various "blogspots" and Internet sites by herself, the Dubois and others; and she was writing her thoughts and recollections needed to assist her counsel in anticipation of trial".

Kelleher had said that In addition to the rather large number of preserved emails by and between Dr. Baumgartner, Judge Markus and Bryan and Mandy Dubois, the State had possession of emails by and between Dr. Baumgartner and legal counsel representing and potentially representing her in this and other cases, work she did preparing motions in the Cuyahoga County case, work she did preparing for trial, communications with other persons on legal and factual issues in the case, considerable legal research, and her personal thoughts and views on the several cases to which she is a party.

"This is beyond the pale", Kelleher had said. "Aside from the sheer illegality and unfairness of it, the actions of Prosecutor Kasaris and his agents in literally wresting her trial preparation materials away from her have significantly impaired her defense, not just in this case, but in the Ottawa and Erie County proceedings. Her private musings, her privileged communications with counsel, potential trial exhibits, evidence impeaching State witnesses, evidence negating her guilt, all have been taken and are now being torn apart and rummaged through by Kasaris and the agents".

Kelleher says that because she was licensed to practice law in Ohio until 2003, and the seized computers contain documents and writings made in connection with her representation of former clients, that those materials are protected by attorney-client privilege and that neither Dr. Baumgartner or the clients have waived the privilege.

"The State is violating the privacy and confidences of persons utterly uninvolved in the instant case by keeping and examining the computers. Because they also contain communications between Dr. Baumgartner and counsel respecting her own legal issues, and she, too, has not waived, her own attorney-client privilege has been violated by Kasaris", Kelleher says, and is unreasonable under the Fourth Amendment.

"The State of Ohio obviously wants this defendant to go to trial with not one, but both hands tied behind her back. This Court should not tolerate such heavy-handed tactics", Kelleher had said.

Now that Kasaris has made the admission that evidence is missing, claiming that Matuszny lost it, it is anticipated that will be a major portion of the appeal of Baumgartner's conviction in Cuyahoga County and will be used as the basis of the appeal of any conviction which may result in Erie County.

In regard to her contempt conviction for which she is serving the 120-day sentence in Ottawa County, the Sixth District Court of Appeals refused to grant her an appeal bond or to stay the sentence.

That matter has now moved to the Ohio Supreme Court where a writ of habeas corpus is pending and depending on the action of that court, the entire matter could move to the federal courts.

She is being represented in that matter by attorney Sandra Finucane of Cincinnati.

In addressing the appellate court's refusal to grant her an appellate bond for unclassified misdemeanor contempt, Finucane says that is absurd in that she was released on bond following conviction and sentence of eight years in Cuyahoga County on felony charges and received a bond on pending courts in Erie County where she also had felony charges.

Although released on bond on felony charges in the other two jurisdictions, the Sixth Circuit has said they consider her a flight risk on a 120-day sentence for misdemeanor contempt.

This article may not be reprinted or republished without the express written permission of The North Country Gazette.   June Maxam   2-24-07

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