Originally Posted - February 25, 2007

return home

The pressing question in northern Ohio continues to be if the U.S. Constitution and Ohio Constitution have been suspended in the case of disbarred attorney Elsebeth Baumgartner, deemed in some circles a political prisoner, being punished by the government for having dared to speak out about governmental corruption----in particular, judicial and prosecutorial corruption.

The latest violation of the whistleblower's constitutional rights appears to be the suspension of habeas corpus.

As of this week, Baumgartner will have served three quarters of her 120-day sentence for criminal contempt in Ottawa County Jail but has still been unable to have her petition for habeas corpus heard.

With about 30 days remaining on her sentence, it appears likely that she will have served the entire sentence before the matter can be appealed and even if the conviction is overturned and found to be unconstitutional, there is no way she can ever regain the 120 days of liberty taken from her---and perhaps that is exactly the government's plan.

Although the Constitution and prevailing case law precedent dictate that a petition for habeas corpus must be heard forthwith, Baumgartner's petition has now been pending for over 45 days, first snubbed by Ohio's Sixth District Court of Appeals and now pending before Ohio's Supreme Court where Thomas Moyer is chief justice.

Retired visiting judge Richard Markus, at age 76, is six years past the mandatory retirement age in the state of Ohio but has managed to circumvent the constitution and law with the assistance of Moyer who routinely assigns Markus to handle cases of political significance. http://www.northcountrygazette.org/articles/2007/021707FavorsCorruption.html

Markus, who has an overwhelming ego as evidenced by his testimony before a Cuyahoga County Grand Jury against Baumgartner, operates a private judicial firm and rents himself out as a judge in mediation disputes.

Although public records indicate that Markus has allegedly overbilled the state, he and the state of Ohio in the persona of assistant Cuyahoga County prosecutor Daniel Kasaris and Ottawa County prosecutor Mark Mulligan, say that Baumgartner's allegations are false but they have never been proven false in a court of law with evidence. http://www.northcountrygazette.org/articles/110406YouPay.html

They've been ruled false because Markus says so, because he claims her accusations of being a rent-a-judge, case fixing and overbilling taxpayers are false. Markus feels insulted because he's been called incompetent and his rulings challenged, that he's been called a rent-a-judge, called corrupt. His feelings were hurt and he was mad because his wife had been duped and talked unwittingly and openly with a blogger, according to what he told the Grand Jury.

But none of those acts are criminal, there are all protected expression of free speech under the First Amendment. The Grand Jury testimony by Markus given to secure an indictment against Baumgartner and her ex-business partner Bryan DuBois for allegedly intimidating and retaliating against Markus provides a bizarre inside look into the ongoing character assassination of Baumgartner and the inordinate efforts undertaken to silence the judicial whistleblower and former attorney. The Ohio judiciary and prosecutors have abused the system and their powers to stop her from writing, unlawfully charging her criminally for using a criminal tool, a computer, claiming she intimidated Markus by sending him e-mails critical of him and his performance as a judge. GRAND JURY MINUTES

Kasaris and Markus performed before the Grand Jury, taking Baumgartner to task for her "goofiness", for having dared exercised her constitutional right to seek redress of grievances in the court, for exercising her freedom of press, speech and association, for being outspoken and a governmental critic. According to Kasaris and Markus and Mulligan, she can only challenge their abuse of power and position, and that of other public officials, with their permission.

To ensure that their court rulings would stand without challenge, Markus declared Baumgartner a vexatious litigator, prohibiting her from filing appeals to his rulings or initiating any legal action with his permission. Even if she retains an attorney, her efforts at appeals and other legal actions are routinely shot down and she has been persistently denied her constitutionally guaranteed access to the courts.

Baumgartner is currently serving a 120-day sentence for contempt of court, again on complaint of Markus but once again, has been stonewalled in her efforts to have a higher court review the ruling.

Markus had been assigned to the civil matter of Baumgartner v. Kellen Smith, a former member of the Benton-Carroll-Salem Board of Education, and the counterclaim of defamation brought by Smith against Baumgartner and her firm, Cleveland Genomics Inc.

Even after he had filed his contempt charges against Baumgartner and then his criminal complaint against her, Markus continued to handle matters relating to the Smith libel case. Although Dr. Baumgartner did not testify in her own behalf at the civil trial and there was no credible proof submitted, Markus found Baumgartner guilty in what many said was a pre-determined decision, and assessed a $175,000 judgment against her. http://www.northcountrygazette.org/documents/BaumgartnerChronology.pdf

After Markus ruled in Smith's favor in December 2004, Markus filed a complaint against Baumgartner, charging her with 34 counts of criminal contempt. It took more than a year to bring the matter to trial in March, 2006 before visiting judge David Faulkner of Harden County who refused to define if the charges were criminal or civil in nature, denied Baumgartner a jury trial and dictated that she had to represent herself in the matter, saying that the civil standard of proof, preponderance of the evidence would be applicable rather than the criminal standard of beyond a reasonable doubt.

After Markus testified against Baumgartner on March 22, Faulkner had abruptly adjourned the trial to April 3 when the trial concluded with Faulkner saying he wouldn't begin his deliberations for over a month, after both Baumgartner and Mulligan had filed briefs in the case.

Although Mulligan had been previously disqualified by another retired visiting judge from prosecuting Baumgartner in other cases due to conflicts of interest, he refused to disqualify himself in this matter and Faulkner refused to remove him.

Baumgartner maintains that she, as well as others, has the constitutional right to criticize a judge or other public official. The U.S. Supreme Court held over 60 years ago that a judge may not hold in contempt one who ventures to publish anything that tends to make him unpopular or to belittle him or punish speech critical of their actions.

But Faulkner didn't issue a decision in a month, or two months or even three months. He waited until Oct. 30, 2006, seven months after the trial had concluded to render a verdict of guilty against Baumgartner on 27 counts of contempt.

On Nov. 28, two weeks before she was to begin trial in Cuyahoga County Common Pleas Court on Markus' complaint that she had intimidated him by sending e-mail messages, Faulkner sentenced to Ottawa County Jail for 120 days and fined $2,700, effectively stifling her from preparing for trial in Cuyahoga County and in preparing for trial in the still pending charges against her in Erie County for felony fleeing and a charge of grand theft of her own corporate vehicle. The theft charge was finally dropped this week.

On Dec. 11, Baumgartner's attorney, Sandra Finucane of Columbus, filed for Baumgartner's release on bail pending appeal and a stay of sentence. Mulligan opposed it. When the Sixth District Court of Appeals sat on the motion and failed to render a decision, on Jan. 12, Attorney Finucane filed a writ of mandamus/procedendo or in the alternative, habeas corpus, in Ohio's Supreme Court in an attempt to force the appellate court to act. http://www.sconet.state.oh.us/temp/587264.pdf

On Jan. 18, the Sixth District denied Baumgartner's request for bail and suspension of sentence.

However, they failed to address the petition for habeas corpus.

A writ of habeas corpus is a judicial mandate to a prison official, in this case Ottawa County Sheriff Robert Bratton, ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.

A habeas corpus petition is a petition filed with a court by a person who objects to her own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. A party may also file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.

In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has "recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969). " Therefore, the writ must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291.

The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights. The writ is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."

In the Baumgartner case, if the state courts continue to disregard the habeas corpus petition, once she exhausts all efforts in the state courts, she may move the matter into federal court.

On Feb. 7, after the Sixth District had denied her request for bail, Mulligan, representing Bratton, filed his response with the Ohio Supreme Court claiming that Baumgartner's petitions were moot and moved for dismissal, saying that a 34-day delay in ruling by the court was not excessive.

Last week, Finucane fired back, arguing that "justice delayed is justice denied", and continued to argue for a writ of habeas corpus for Baumgartner's release. http://www.sconet.state.oh.us/temp/590269.pdf

She agreed with Mulligan that the petitions for procedendo and mandamus were moot as of Jan. 18, but argued that "for the sake of judicial economy and the fact that justice delayed is justice denied, the possibility or probability of this occurring caused petitioner (Baumgartner) to move, in the alternative, for this court to issue a writ of habeas corpus. Contrary to Respondent's (Bratton's) assertions, habeas corpus, as discussed on page 5 of Petitioner's Memorandum in Support filed on Jan. 12, 2007, is the appropriate remedy when post conviction bonds are excessive or refused…..Respondent has attached the Sixth District decision showing that Dr. Baumgartner's bond has been refused by that court, thus, making habeas the appropriate remedy in this court".

Finucane told the Supreme Court that Mulligan and Bratton were misplaced in their contention that Dr. Baumgartner is required to submit an affidavit concerning her litigation history. "Such affidavits are only required when the inmate litigant is acting pro se, not when she is represented by counsel. Id. Respondent also argues that the pleading is deficient with regard to a habeas action. Yet, Respondent has failed to request a more definite statement consistent with Rule 12(E) of the Rules of Civil Procedure. Respondent was served with Petitioner's Memorandum in Support, which was attached to the Petition for Habeas Corpus, along with an affidavit of counsel that spelled out in detail the claim for habeas release. Moreover, Rule 8 (A) of the Rules of Civil Procedure only requires a "short and plain statement."

"Respondent also alleges that Dr. Baumgartner's is a flight risk due to her convictions. This Court, the Sixth District Court of Appeals, along with the Ottawa, Erie, and Cuyahoga County Courts of Common Pleas are all aware of Dr. Baumgartner's well-publicized history and background. Dr. Baumgartner was on probation in Ottawa County. Thus, the Respondent was aware of the fact that she has been a long-term resident of Ottawa County. The Sixth District knew or should have known that she was employed in Ottawa County, and that her husband, Joe Baumgartner, owns a drug store in the area. The lower courts knew or should have known that Dr. Baumgartner was out on bond pending criminal charges in Erie County, and she was permitted to remain on bond after recently being convicted and sentenced to an eight-year sentence in Cuyahoga County. She did not flee.

"Respondent's counsel is aware of the above circumstances, yet Respondent argues that Ms. Baumgartner poses a flight risk "pending appeal," of what amounts to 'unclassified fourth degree misdemeanor contempt convictions. Respondent does not argue or dispute that Dr. Baumgartner's punishment for making statements critical of judges within legal documents, is violative of her First and Fourteenth Amendment rights. In fact, Respondent "admits" that Ms. Baumgartner was punished because of statements she made in legal documents filed in the cases of Elsebeth Baumgartner, Plaintiff, v. Kellen R. Smith, Defendant and counterclaim Plaintiff v. Elsebeth Baumgartner and Cleveland Geonomics, Inc., counterclaim Defendants.

"It is understood why judges may be angered by Dr. Baumgartner's allegations of perceived impropriety by Chief Justice Moyer, Judge Richard M. Markus and/or other judicial officers. However, evidence of criticism of judges within legal filings does not support Dr. Baumgartner's criminal contempt convictions or her sentence of 120 days incarceration. In fact, this Court may take judicial notice of the campaign for "Judge Moyer" against "Chief Justice" Celebreeze. There were numerous untrue and disparaging allegations made during the course of that campaign against Justice Moyer, and yet no one was ever convicted of contempt or sentenced to a term of incarceration. The danger to the orderly administration of justice "must not be remote or even probable; it must immediately imperil .... The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate." Craig v. Hamev, 331 U.S. 367, 376 (1947). Clearly, Justice Moyer has thrived in hardier climates, and there is no reason why all judges cannot so thrive. Courts "must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice." Brown v. United States, 356 U.S. 148, 153 (1958).

The point is that the Constitution protects the very statements that Dr. Baumgartner made in her legal documents as cited to on page 2 of her Memorandum in Support filed on Jan. 12, 2007. The arguments concerning Dr. Baumgartner's unlawful incarceration in the preceding Memorandum are incorporated by reference fully herein. In addition to the state cases and Sixth Circuit cases, which indicate that Dr. Baumgartner' incarceration is unlawful, United States Supreme Court precedent supports her position. For example, in In re Little (1972),.404 U.S. 553, a litigant, acting pro se, accused a judge who was presiding over his criminal trial, of bias, and of prejudging him. He made these statements in open court and further alleged in open court that he was a "political prisoner." The United States Supreme Court reversed the contemnor's contempt conviction, stating that the "law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion." Id. at 555. See also Pennekamp v. Florida, 328 U.S. 331 (1946) (contempt conviction resulting from newspaper editor and publisher's criticism of state circuit court and judges' handling of pending cases, violated appellants' First Amendment rights).

"In conclusion, this Court should not permit minor pleading technicalities, especially when a more definite statement was not requested, to prohibit it from doing justice. The pleadings, motions and attachments thereto, state a claim for relief on Relator's petition for writ of habeas corpus".

Although the court should in principle act on the matter "forthwith", Finucane says she's not optimistic they will do so. 2-25-07

© 2007 North Country Gazette