CLEVELAND---Double standards are at work again in northern Ohio.

When disbarred Oak Harbor attorney Elsebeth Baumgartner told retired visiting judge Richard Markus that he was corrupt, alleging that he was part of a case fixing scheme in northern Ohio, Markus filed a criminal complaint against her which resulted in her being charged with and convicted of retaliation and intimidation.

When she criticized his judicial performance and asked him to uphold the law, he charged her with 34 counts of contempt of court, leading many to question if Markus wasn't improperly using his judicial office to retaliate against a critic for exercising First Amendment free speech rights, suggesting that Markus should have been the one charged for retaliation as well as judicial misconduct.

The contempt charges were brought by Markus who claimed that Baumgartner had insulted him during a defamation trial that he was adjudicating against her in December 2004. Baumgartner was ultimately found guilty of 24 counts of contempt and sentenced to 120 days in jail.

Markus claimed that he was intimidated during the trial by Baumgartner because she told him that he fixes cases, is corrupt and is a rent-a-judge. Markus claimed that Baumgartner "disrespected" the judiciary.

In a decision rendered last week by the Ohio Supreme Court, in circumstances almost identical to the Baumgartner case, it was the judge who was found to be retaliating against a person exercising First Amendment rights to criticize him.

The now ex-judge has been indefinitely suspended from the practice of law for retaliating against a defendant who told a court cashier that the judge was corrupt and for lying about the incident in a disciplinary proceeding.

Disciplinary action was taken against Marion Neal Cox, 58, of East Cleveland for multiple acts of misconduct, many committed while he was acting judge in the East Cleveland Municipal Court, and one committed during an argument with opposing counsel.

In June 2004, James Portis had accompanied his nephew to court for a hearing before Cox. After the hearing when Cox and his nephew went to pay a fine before the court cashier, Portis learned of new charges which had been levied and allegedly told the cashier that "Judges can be crooks too".

The cashier reported Portis' comments to Cox and within 15 minutes, Cox had ordered the arrest of Portis for indirect contempt of court. Cox then left the man in police lock up for three hours before bringing him back to the courtroom.

During the exchange in the courtroom, Cox told the man that he could have an attorney and witnesses and the opportunity to prove his innocence. Meanwhile, Portis told Cox that he didn't understand what was going on and that he didn't mean any harm. Cox told the man that his remark was "disrespectful to the judicial process." The judge then accused Portis of defamation and being "too dense to understand."

"That's defamation," Cox told Portis. "You shouldn't go around calling people something that they're not unless you can prove it. You can't defame my character in front of other people and say I'm a crook unless you can prove it."

In the Baumgartner case, Markus and prosecutor Daniel Kasaris alleged that Baumgartner had made false charges against Markus and other public officials but no independent investigation was ever conducted, Baumgartner's allegations were deemed false because the officials said so.

Portis pleaded no contest and was fined $500 plus $69 court costs. He later filed a grievance against Cox. In his response to the grievance, Cox twice falsely represented that he had actually heard the man utter the offending corruption remark, and the judge said it was because of this direct contempt that the man was immediately placed in custody. Also contrary to actual events, Cox reported that the man had pleaded no contest to contempt but was not fined and was released on time served. Cox concedes without explanation that he wrongly advised the man that he had the burden of proving his innocence to the contempt charge. Finally, Cox acknowledged that he had insulted the man by suggesting that he was "too dense to understand" the charge against him.

The Board of Commissioners on Grievances & Discipline found that Cox had violated the Code of Judicial Conduct, including Canon 2, (a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary), Canon 3 (B)(4), (a judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity), and Canon 4 (a judge shall avoid impropriety or the appearance of impropriety in all the judge's activities, as well as the disciplinary rule that prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice.

In addition, Cox was indicted around Dec. 7, 1999, for a felony offense of possession of drugs for possessing five grams or less of cocaine on April 18, 1999. Cox pleaded guilty to attempted possession of drugs, a first-degree misdemeanor and was sentenced to three months incarceration, all suspended, placed on six months' probation, and ordered to submit to regular drug testing. The board found that Cox's illegal conduct violated several judicial canons.

Moreover, while acting as plaintiff's counsel on Feb. 25, 2005, Cox attended a pretrial hearing and on multiple occasions accused the defense counsel of being "a pathological liar." Following the hearing, Cox accosted another defense counsel in the courtroom and in the hallway outside, loudly and repeatedly taunting the counsel with invectives including profanities and racial slurs. For these actions, the board found Cox again in violation of the disciplinary rule that prohibits a lawyer from engaging in conduct that adversely reflects on the lawyer's fitness to practice law.

In recommending a sanction, the board considered as aggravating factors that Cox had misrepresented events in the contempt citation and submitted false statements during the disciplinary process. The board found as a mitigating factor that Cox had no prior disciplinary history. Cox's failure to appear at the hearing constituted another aggravating factor.

In its decision, the Supreme Court adopted the board's findings of misconduct, but found that the board's recommended sanction of a one-year suspension was too lenient. The Court found that Cox gravely abused his contempt power to intimidate and demean. The Court also found Cox's false accounts of the events underlying the contempt citation intolerable.

"That a lawyer who once served as a member of the judiciary in this state would submit dishonest or misleading information during a disciplinary investigation to cover up his misuse of judicial authority is an affront to our entire legal and disciplinary system," the Court wrote. "When such conduct is considered in addition to respondent's drug use, berating of counsel, and use of profanities and racial slurs, a one-year suspension is simply insufficient for misconduct of this magnitude." http://www.supremecourtofohio.gov/rod/newpdf/0/2007/2007-Ohio-979.pdf

Cox had served as judge from March 1999 until January 2006. 3-24-07

© 2007 North Country Gazette