Originally Posted - March 10, 2007

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SANDUSKY, OHIO---Elsebeth Baumgartner, the beleaguered, disbarred attorney who is paying a price for blowing the whistle on governmental corruption in northern Ohio, entered a no contest plea in Erie County Court this week to charges of felony fleeing and failure to comply with the order of a police officer for charges brought against her in May 2005 by Bay View Police.

Charges of resisting arrest and grand larceny against her were dismissed.

But the way in which the plea was obtained is certain to bring a constitutional challenge to unlawful bond conditions and coercion. There's already a Fourth Amendment challenge well established to the entire arrest due to the allegedly defective warrant used as the premise to effect the arrest and the fact that the alleged warrant had been issued in a case which had already been dismissed.

One of Baumgartner's attorneys, Richard Drucker, said the matter would be appealed because one of the elements of law needed to sustain a charge of felony fleeing is that there must be a substantial risk to public safety involved and in the Baumgartner case, there was none as evidenced by the fact that there were no traffic charges and a veteran officer with the Florida Highway Patrol testified it was the lowest speed chase he had ever participated in.

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.

The grand theft charges against Baumgartner for stealing her own corporate vehicle were finally withdrawn by special prosecutor Daniel Kasaris of the Cuyahoga County prosecutor's office several weeks ago and dismissed.

Following a suppression hearing and motions to dismiss, visiting judge Ronald Bowman of Lucas County had, as expected, denied all motions filed by Baumgartner. Baumgartner had been represented in the case by Cleveland attorneys Frank Gasper and Richard Drucker who had moved for dismissal and suppression of all charges because the prosecution couldn't produce the warrant they say was the probable cause to detain Baumgartner and ultimately arrest her.

She said that she told the police 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

She wasn't issued any traffic tickets and the Florida Highway Patrol said it had been a low speed, controlled chase. Perhaps the person putting the public at the greatest risk was the Bay View off-duty cop who engaged in the pursuit with his unmarked private vehicle.

According to her husband, Joseph, Baumgartner had been unaware that this week's proceeding had been scheduled and entered her objections on the record that her attorneys had not given her advance notice.

The transcript of the proceedings sets the stage for an appeal in that there is sufficient evidence that although Baumgartner pleaded no contest because she didn't believe that she could receive a fair trial in the matter. As she did in charges in Cuyahoga County Common Pleas court, brought against her by retired visiting judge Richard Markus who claimed he had been intimidated by Baumgartner's emails, Baumgartner entered a no contest plea with guarantee of appellate bond and the right to file additional documents with the court in order to advance the argument to a higher court.

She is scheduled to be sentenced on April 23 and could receive up to five years in prison but any sentence in Erie County Common Pleas Court would run concurrent with the sentence of eight years imposed by Cuyahoga County Common Pleas Court judge Shirley Strickland Safford for retaliation and intimidation counts on complaint of Markus.

That case is currently on appeal and although she is currently incarcerated in Ottawa County Jail on contempt of court convictions, an appellate bond is in place for her release in Cuyahoga County. She is expected to be released the end of March after serving 120 days on Markus complaint of contempt for statements she made in court pleadings.

Baumgartner was denied her right to appeal the contempt convictions by the Sixth District Court of Appeals and the matter will be moving into the federal court arena, focusing on First Amendment issues.

The Erie County plea was in essence coerced under threat by Kasaris of revoking her bond in Cuyahoga County if she didn't plead to the Erie County charges, claiming that taking the matter to trial would violate the conditions of her bond set by Saffold. Not only are the bond conditions allegedly unconstitutional and will likely be challenged on appeal but there's also a looming question if Saffold has jurisdiction as a Cuyahoga County judge to set conditions to force a plea in other courts outside the county.

Additionally, Safford, Kasaris and Bowman had forced Baumgartner to enter a plea in connection with drug charges which had been brought against her husband, a licensed pharmacist, for having outdated prescription drugs such as penicillin, diet drugs and a small amount of Vicodin, at the Baumgartner residence, some in unlabeled bottles.

Dr. Baumgartner had also been a pharmacist until her license was removed as a result of efforts spearheaded by Markus.

Most of the prescriptions were over 10 years old.

In other words, if Baumgartner didn't plead guilty to the Erie County charges, then she was threatened with her husband being fully and vigorously prosecuted on the drug charges, jeopardizing his livelihood. According to law, as a licensed pharmacist, he is immune from these type of charges.

There is also a legal challenge to the search warrant that was executed by the Ottawa County Sheriff's office at Baumgartner's Ottawa County residence last February, obtained by an affidavit submitted by Robert Matuszny, an investigator with the Cuyahoga County prosecutor's office, signed by Ottawa County Municipal Court Judge Frederick Hany, based on information provided to Kasaris by Baumgartner's former business partner and his wife, Bryan DuBois and his wife, Mandy. The affidavit was given based on the DuBoises claimed personal knowledge of the Baumgartner residence, having allegedly been at the residence. With this admission established and the fact that Kasaris has now admitted that he has lost one of the hard drives to the computers seized during the execution of the search warrant, there is no proof that Baumgartner sent the emails as alleged to Markus. With several people having access to the computers in the Baumgartner house, including the DuBoises, there is no proof beyond a reasonable doubt that Baumgartner sent the emails to Markus, the basis for Baumgartner's conviction and eight year sentence in Cuyahoga County. With the chain of evidence having been broken, leading to allegations of tampering with evidence, it could constitute grounds for the Cuyahoga case to fall apart which would have a domino effect on both the Erie County and Ottawa County cases.

She too had been charged in Ottawa County with 16 misdemeanor drug charges, one for each outdated prescription, but her charges in Ottawa County had been dropped by Cuyahoga County Judge Saffold in exchange for her no contest plea to the Markus intimidation and retaliation charges. The condition imposed by Saffold was that with Elsebeth Baumgartner entering a plea deal, the charges against her husband would be amended. If she didn't agree to the deal and forced the matter to trial, then the government threatened to vigorously prosecute her husband.

Saffold in essence acted outside of her jurisdiction in Ottawa and Erie Counties.

Another condition forced upon Baumgartner in Cuyahoga County in order to get her appellate bond was that she was to plead no contest in Erie County if Bowman denied her motions to suppress and dismiss the case in Erie County. It was virtually assured that Bowman would deny all motions. Such establishes what appears to have been a denial of her Fifth Amendment right to due process as there was no semblance that she would be afforded a fair hearing by Bowman on the suppression motion in that her husband's case and her freedom was predicated---unconstitutionally---on a no contest plea. The suppression hearing and motion in essence were only for show.

While it has been reported that Baumgartner pleaded guilty, she did not, entering a no contest plea in both Cuyahoga and Erie Counties. A no contest plea is a plea where the defendant does not admit that he/she committed the crime, but does concede that the government has evidence against her that could result in a guilty verdict.

In case of Baumgartner, despite the Fourth Amendment violation regarding the warrant and illegal stop, Bowman had ruled that the videotape of the pursuit would be admissible at trial and Baumgartner said that no matter what evidence she presented or what defense, she didn't expect she would have received a fair trial. The court treats a no contest plea identically to a guilty plea in terms of finding the defendant guilty of the crime.

The trial transcript and published report of the proceeding by the Sandusky Register clearly exhibits the bias and prejudice of Bowman against Baumgartner.

Baumgartner stated on the record that she had not been informed that a plea deal was going down until she was taken to the court Wednesday afternoon. Only after Bowman agreed to allow her to supplement the record to include legal research regarding warrant arrests and in particular case law which rules such detainment and arrests as in her case illegal, did she enter the no contest plea.

Bowman visibly demonstrated his prejudice and perhaps his marching orders to get a conviction in the case, saying that "she can recite the Magna Carta, whatever she wants to do".

However, its unlikely any conviction will be upheld on appeal and the conviction is not final until sentencing.

One of the best discussions about coerced plea deals and the denial of due process can be found in "Due Process Denied: Judicial Coercion In the Plea Bargaining Process" by Richard Klein, professor of law at Touro Law School which was published in the Hofstra Law Review. http://www.hofstra.edu/PDF/law_lawrev_klein_vol32no4.pdf

The Supreme Court, the supreme law of the land, has held that due process is violated if the plea does not represent the "considered choice of the accused".

In any plea bargain deal, the court must ask the defendant if he/she is entering into the agreement and is pleading guilty freely and voluntarily….without threats, force, intimidation or coercion of any kind".

That's hardly the situation in the Baumgartner case.

To be "voluntary" within the meaning of the Fifth Amendment, a plea by a criminal defendant must be a product of free will, unencumbered by threats or promises. Coercion of any kind, whether physical or psychological, is prohibited, and a statement found to be involuntary will (theoretically, at least) be suppressed.

Many defendants decide to enter into plea agreements out of frustration, delays, pressure and a lack of faith in the judicial system. In Baumgartner's case, she said that being incarcerated on the contempt charges hampered her in participating in the defense for the Erie County charges, as seems to have been evidenced by her not even being informed of the hearing set for Wednesday.

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, DuBois. Ottawa County Sheriff Robert Bratton had contacted the Erie County Sheriff's Department after receiving a "tip" from an anonymous person, later learned to be Mandy 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.
June Maxam. 3-10-07

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