PORT CLINTON---Judicial whistleblower Elsebeth Baumgartner was released from the Ottawa County Jail Tuesday morning after serving 120 days for criticizing a judge, but not before a habeas corpus petition challenging the constitutionality of the judgment and sentence was filed on her behalf in U.S. District Court in Toledo.

The federal petition raises multiple constitutional grounds for reversal of the judgment including free speech issues, alleged gender bias and discrimination violative of the 14th Amendment and a denial of Dr. Baumgartner's Sixth Amendment right to counsel which mandates an automatic reversal of convictions. Habeas corpus, Latin for "you have the body", is a judicial mandate to a prison or jail official 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 or she should be released from custody.

In Baumgartner's case, although the writ was filed while she was still in custody, she has served the 120-day sentence. She is seeking a ruling on the constitutionality of the entire issue.

Dr. Baumgartner had been sentenced to jail Nov. 28 by visiting judge David Faulker and fined $2,700 on 27 counts of indirect criminal contempt for criticizing retiring visiting judge Richard Markus in court filings while she was acting as a pro se litigant in civil matter Markus was adjudicating in Cuyahoga County Court.

Although the trial had concluded in March, Faulkner took over seven months to render his guilty verdict, doing so in late October, just two weeks before Baumgartner was scheduled to begin trial in Cuyahoga County Common Pleas Court before Judge Shirley Strickland Saffold where she faced multiple counts of intimidation and retaliation brought on the complaint of Markus for allegedly sending intimidating e-mails to him.

She had initially been charged with 34 counts by Markus but seven of the counts were dismissed.

The contempt charges had been prosecuted by Ottawa County prosecutor Mark Mulligan.

In his decision, Faulkner said that Baumgartner had claimed that her language "was nothing more than advocacy when the court failed to protect her rights and that as a citizen, she has a right to criticize the government and the administration of justice". Faulkner said "the court finds nothing in the record to support such contentions".

However, those very assertions are the basis for her petition before the federal court.

Markus claimed that Dr. Baumgartner has "disrespected" the judiciary and says that it's not proper for Baumgartner to make comments in a matter to "try to demean and embarrass the judge and the court".

Baumgartner was found guilty of contempt for calling Markus "elderly", telling him he was biased and corrupt and calling him a "rent-a-judge".

Faulkner had refused to define whether the contempt charges were criminal or civil in nature. He denied Baumgartner a jury trial, decreed that she had to represent herself in the matter and said that the civil standard of proof would be applicable rather than the criminal standard of beyond a reasonable doubt.

Markus testified that the charges were criminal because Dr. Baumgartner purportedly criticized him and sent him emails he said were designed to distract him and others from handling her court cases. Baumgartner had leveled accusations against other attorneys and governmental officials including drug use, bias and alleged corruption, some of which has already been borne out in other cases.

At her sentencing, her attorney, Frank Gasper, told Faulkner that his client "was like anyone else" before she became involved in litigation beginning in 2001 when she was a practicing attorney. "She became an advocate for, she believes, people that were being deprived and that is continuing up until today" Gasper said.

Public officials retaliated against Baumgartner, a former patent and biotech attorney, obtaining her disbarment and later stripping her of her pharmacist license, claiming that her allegations of corruption and misconduct by officials were false, although no independent investigation has ever been conducted of her allegations.

In the petition filed in federal court, Sandra Finucane of Columbus, the attorney representing Baumgartner, argues that her convictions violated the Due Process Clause of 14th Amendment because the standards purporting to define what constitutes indirect criminal contempt are void for vagueness in that they do not give fair notice to citizens of what conduct is prohibited.

The standard for indirect criminal contempt under Ohio law is content based, overbroad and vague in a violation of First Amendment to the U.S. Constitution because it reaches a substantial amount of constitutionally protected conduct. It is unclear and it unlawfully targets a particular viewpoint facially and as applied, the petition argues.

"The petitioner was convicted of 27 counts of indirect criminal contempt solely because of language she used as a pro se litigant within legal documents filed in a court of law", Finucane argues. "The Ohio sui genesis in criminal contempt standard permits a private non-attorney citizens to be prosecuted and incarcerated for using language which tends to "embarrass" the court. A substantial amount of constitutionally permissible speech and advocacy outside the physical presence of the court may fall within their ambit. In addition it targets "distracting" speech outside the physical presence of the court which is critical of the Ohio judiciary but does not target distracting speech which is favorable to it, regardless of relevance or falsity. The purported purpose of criminal contempt which is to maintain public confidence in the judiciary is undermined by silencing criticism of the courts which only tends to increase suspicion and mistrust".

"The prosecution of petitioner for statements she made within legal documents violated her right of access to the courts, due process and her right to petition for redress of grievances under the lst and 14th Amendments and Article 4 of the U.S. Constitution and to be free from retaliation for exercising her First Amendment rights", the petition states. "Petitioner was prosecuted and sentenced to incarceration for raising issues within the content of documents she filed in a pending civil case in which she was both a plaintiff and a counterclaim defendant. Petitioner was found guilty of contempt for assertions she made wherein she attempted inter alia to argue a lack of jurisdiction of the court, to assert her belief of judicial bias and to seek to have the court supervise various aspects of what she considered to be improper conduct by opposing counsel and by her own counsel whom she had discharged but who had failed to return her files per her contentions".

Dr. Baumgartner was prosecuted and sentenced to 120 days incarceration for statements she made within seven separate legal documents which was fractionalized into 27 counts upon which she was convicted, Finucane argues. "Male litigants and citizens who have made equally if not more offensive statements critical of the courts outside the physical presence of the court, have either not been prosecuted for contempt or were not punished as seriously as petitioner".

Baumgartner's petition contends that she was denied counsel to which she was entitled under the Sixth Amendment to the U.S. Constitution and that she was forced to represent herself during her criminal contempt trial without a constitutionally required waiver of counsel. For instance, Dr. Baumgartner attempted to assert her right to counsel by filing a motion prior to the final pretrial and by orally requesting counsel during the final pretrial as well as on the first day of trial. She had also filed bankruptcy petition by the time of trial and the court was aware of that fact. The court denied Dr. Baumgartner legal counsel and informed her that the final pretrial and the morning of trial were inappropriate times to assert her right to counsel.

Furthermore, the court did not make any of the constitutionally required warnings or inquiries prior to allowing Petitioner to proceed pro se.

It is also argue that Baumgartner's convictions and sentence on 27 counts of indirect criminal contempt violates the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution where many of the counts arose out of the same conduct or pattern of conduct with a single animus. Many of the counts consisted of differently numbered paragraphs of allegedly contemptuous language within a single legal document while other counts consisted of paragraphs containing almost verbatim language asserted within separately filed legal documents.

It is asserted that the judgment against Baumgartner is in violation of the Fourteenth Amendment to because the state failed to prove beyond a reasonable doubt that she was guilty of 27 counts of of indirect criminal contempt.

It is argued that the state failed to meet its burden because Baumgartner was not an "officer of the court," but a pro se non-attorney party litigant; the state did not prove beyond a reasonable doubt that she intended to impede the functioning of the court nor did her conduct impede or obstruct the ability of the court to function. Further, Baumgartner did not fail to obey any court order.

Finucane submits that Baumgartner's Sixth Amendment right to confront witnesses was violated by the court allowing the complaining witness to testify to extremely damaging impermissible hearsay statements made by declarants who never appeared in court and were thus not subject to being cross-examined. "The admission of these statements also violated Ms. Baumgartner's right to a fair trial under the Fourteenth Amendment to the U.S. Constitution", Finucane argues.

She points out that a judge, the complaining witness was permitted to testify to statements made by other judges, lawyers and other persons which tended to incriminate Baumgartner and/or constituted "bad" character evidence. These witnesses were never called to testify on behalf of the state.

For example, the complaining witness testified to the fact that Baumgartner's prior counsel beseeched him to let him withdraw as her counsel because she was so "difficult." The complaining witness also testified that another judge had informed him that Baumgartner had called (the other Judge) a "bitch."

It is also asserted that Dr. Baumgartner was denied her right to a speedy trial in violation of the Sixth Amendment to the Constitution as her trial did not begin until approximately one year and three months after she was cited for indirect criminal contempt, despite the fact that she had asserted her right to a speedy trial.

Finucane also argues that Dr. Baumgartner' sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment in that she was sentenced to 120 days of actual jail time for written statements she had made within seven separately filed legal documents which did not actually impede the functioning of the court.

It is unknown how long it will take the federal court to issue a ruling. Baumgartner is currently free on an appellate bond in Cuyahoga County following her no contest plea to charges of retaliation and intimidation brought against her by Markus. She is scheduled to be sentenced on April 27 to her no contest plea in Erie County on a charge of felony fleeing and eluding.
3-27-07

© 2007 North Country Gazette