Events in the Case Against Baumgartner
              From The Empire Journal and North Country Gazette

Baumgartner News & Views

Baumgartner Loses Bond Bid North Country Gazette July 20, 2008 CUYAHOGA COUNTY—Self-proclaimed judicial whistleblower Elsebeth Baumgartner of Oak Harbor has lost her bid for a second appeal bond in her free speech case. Baumgartner is currently incarcerated at the Ohio Reformatory for Women after Cuyahoga County Common Pleas County Judge Shirley Strickland Saffold revoked her bond on May 9 and ordered her to begin serving her eight year prison term for intimidating and retaliating against retired visiting judge Richard Markus and her former business partner, Bryan DuBois and his wife. Sandra Finucane of Gahanna, Ohio, Baumgartner’s attorney, had filed a motion for an appeal bond in the Eighth District Court of Appeals in Cuyahoga County on June 11. It was denied on July 16. Baumgartner had been free on a $50,000 bond pending the outcome of her appeal of the 2005. Saffold had imposed conditions on the bond that included that she could not file any legal actions in any court without Saffold’s approval. Cuyahoga County prosecutor Daniel Kasaris had moved to revoked Baumgartner’s because she had filed a federal lawsuit seeking injunctive and declaratory relief against the Ohio Pharmacy Board and several state public officials on April 7, although she had not attempted to serve any of the defendants. On May 8, the day prior to her hearing, she voluntarily dismissed the lawsuit. The following day, Saffold revoked her bond and sent her to prison. Finucane had argued that a bond condition that prohibits an appellant from exercising her First and Fourteenth Amendment right to petition for redress of grievance and to access the courts is unconstitutional and could never be voluntarily waived where the choice presented is either "no bond" or to "waive a constitutional right". Courts which have addressed the issue of "unconstitutional conditions" in the context of bail conditions have been careful to ensure that government does not use unconstitutional bail conditions to chill First Amendment rights, including speech, press, assembly and petitioning activities, Finucane argued. http://www.northcountrygazette.org/2008/06/29/files_for_bond/ Kasaris had filed his response on June 25 but Finucane said she was away on vacation and did not receive it until July 7. She replied to it on July 15, with a motion for leave to file late due to the circumstances. The following day, the court dismissed her motion. She said that Kasaris had essentially argued that the bond condition isn’t unconstitutional by comparing it to Ohio’s vexatious litigator statute and because Baumgartner has been declared a vexatious litigator in the U.S. District Court in Northern Ohio. However, she has not been declared a vexatious litigator in the Southern District which is where the federal lawsuit was filed. He also falsely argued that Baumgartner had never made the arguments in the lower court that she is making to the appeals court now. Finucane said that Baumgartner did argue generally that the bond condition was unconstitutional in her memo in opposition which she filed pro se in the trial court, even though she only had one day to do so, had not been properly served, and it isn’t even clear that it is necessary. She said that Baumgartner’s former attorney, Ken Myers, had also argued the issue orally back in 2007 when the state then attempted to revoke her bond Finucane said there are no standards for Judge Saffold to apply to deny or grant a request in her order or even a time within which Saffold must make a decision. Also, the vexatious litigator statutes don’t condition a constitutional right upon the loss of another right or privilege. She said the state vexatious litigator statute does not inhibit the filing of federal suits in any way, as does the bond condition. Because the 8th District makes its own independent judgment and is not required to correct the trial court’s error, Finucane said she had submitted a petition for a writ of habeas corpus to the Third District Court of Appeals concerning the unconstitutional revocation of bond in the trial court but she expected that the action will be prolonged. Baumgartner was indicted in 2005 on numerous felony counts of intimidation and retaliation as a result of sending non-threatening, but allegedly "materially false" e-mails to a judge and others and for filing civil suits containing allegedly "materially false" allegations. She was indicted on numerous felony counts of intimidation and retaliation in a second case for posting offensive web posts on a website about her co-defendant and his wife, Bryan and Mandy DuBois. One of the postings was allegedly materially false and the other was a parody of rap lyrics by a nationally known rap artist which, although not directed at any one in particular, was alleged to constitute a "threat of harm." After pleading no contest to 18 felony counts on the condition that she would be allowed to remain free on bond during her appeal, she was found guilty of 15 felony counts, including four felonies for the altered rap lyrics post alone. On Dec. 18, 2007, Ms. Baumgartner was sentenced to a total of eight years in the Ohio Reformatory for Women. She appealed. 7-20-08 Baumgartner Files For Bond Citing Unconstitutionality Posted on Sunday, 29 of June , 2008 at 9:30 pm CUYAHOGA COUNTY—Apparently retired visiting judge Richard Markus doesn’t embrace the U.S. Constitution or subscribe to the constitutional guarantees provided by the First Amendment. A bond condition that prohibits an appellant from exercising her First and Fourteenth Amendment right to petition for redress of grievance and to access the courts is unconstitutional and could never be voluntarily waived where the choice presented is either “no bond” or to “waive a constitutional right”. Sandra Finucane of Gahanna, Ohio, attorney for disbarred attorney and judicial whistleblower Elsebeth Baumgartner has filed a motion for an appeal bond in the Eighth District Court of Appeals in Cuyahoga County. Baumgartner is currently incarcerated at the Ohio Reformatory for Women after Cuyahoga County Common Pleas County Judge Shirley Strickland Saffold revoked her bond on May 9 and ordered her to begin serving her eight year prison term for intimidating a judge.   Baumgartner had been free on a $50,000 bond pending the outcome of her appeal of the 2005 conviction for allegedly intimidating and retaliating against retired visiting judge Richard Markus as well as her former business partner, Bryan DuBois.   Saffold had imposed conditions on the bond that included that she could not file any legal actions in any court without Saffold’s approval.   Courts which have addressed the issue of “unconstitutional conditions” in the context of bail conditions have been careful to ensure that government does not use unconstitutional bail conditions to chill First Amendment rights, including speech, press, assembly and petitioning activities.   The motion seeking her release on bond was filed June 11.   Baumgartner was indicted on numerous felony counts of intimidation and retaliation as a result of sending non-threatening, but allegedly “materially false” e-mails to a judge and others and for filing civil suits containing allegedly “materially false” allegations.   She was indicted on numerous felony counts of intimidation and retaliation in a second case for posting offensive web posts on a website about her co-defendant and his wife, Bryan and Mandy DuBois.  One of the postings was allegedly materially false and the other was a parody of rap lyrics by a nationally known rap artist which, although not directed at any one in particular, was alleged to constitute a “threat of harm.”    fter pleading no contest to 18 felony counts she was found guilty of 15 felony counts, including four felonies for the altered rap lyrics post alone.  On  Dec. 18, 2007, Ms. Baumgartner was sentenced to a total of eight years in the Ohio Reformatory for Women. She appealed.   On Jan. 29, after briefing had been completed by both sides, the Court Of Appeals determined that it lacked jurisdiction to proceed because Saffold had failed to sentence Baumgartner on six counts of which it had entered findings of guilt in its journal entries.   The appeals court therefore remanded the case back to the trial court but did not dismiss the appeal.     On remand, Saffold, without Mrs. Baumgartner being present, sentenced her to additional time and sentenced her on two counts of which she had specifically been found “not guilty” during the change of plea proceedings.    As a part of Baumgartner’s negotiated plea, she was to be granted an appeal bond in the amount of between $25,000 and $50,000.  No special bail conditions were part of the negotiated plea agreement and she did not agree to certain conditions of the bond which the court subsequently imposed on her.  Specifically, the record reflects that no bond condition prohibiting Baumgartner from exercising her First Amendment right to petition for redress of grievance was incorporated within the bond agreement which the court executed on Dec. 22, 2006, and which Mrs. Baumgartner signed on Dec. 26, 2006.    Finucane writes that what occurred is that one of the alleged victims in the case, Retired Visiting Judge Markus, suggested at the sentencing hearing, that the trial court impose bond conditions restricting Mrs. Baumgartner’s speech and petitioning activities.  Saffold then issued an order entered Dec. 21, 2006,  setting appeal bond conditions that Baumgartner “shall file no lawsuit in any court against any public official without the express written permission of Judge Shirley Strickland Saffold;” and, that Mrs. Baumgartner “shall make no public, derogatory, factual statement about any public official without reasonable cause to believe it is true.”    Saffold’s order further defined a “public statement” as “any statement intended for publication on an internet website, an oral or written statement to any governmental entity, or any other publication for the general public.”   The order defined a “factual statement” as one which ”asserts specific provable conduct and is not a mere expression of personal opinion.”   During the course of the pending appeal, prosecutor Daniel Kasaris and the Cuyahoga County prosecutor’s office moved for Saffold to revoke  Baumgartner’s bond on three separate occasions.   The first such instance was on Jan. 24, 2007.   The hearing on that motion was held on April 30, 2007.    Saffold,  being in the middle of an unrelated trial, stopped the trial to hear the state’s argument that Baumgartner had written an inmate grievance at the Ottawa County jail in which she complained that she had received a death threat from an employee of a contractor with the facility.   Since this grievance violated none of the conditions of her bond, the trial court overruled the motion in an entry journalized on May 4, 2007.    Then on the afternoon of April 30, 2008, Kasaris filed another such motion which lacked a certificate of service, and the court set a revocation hearing for the morning of the May 5.  Baumgartner was never served with this motion.  The basis for the motion to revoke on this occasion was that  Baumgartner had applied with Judge Markus, as she was required to do as a vexatious litigator, to file a legal malpractice suit against two of her former attorneys.    She indicated in her proposed complaint that she had a residence in Florida when her bond conditions did not permit her to leave the State of Ohio.  In fact, she resides in Ohio and although she also has some property in Florida, she had never left the State without permission of the trial court, nor did the State allege that she had.  Thus, this motion to revoke was also denied in an entry dated May 12.   Finally, just two days after Saffold denied the second motion to revoke Baumgartner’s bond,  Kasaris filed a third motion to revoke her bond on May 7.  The State’s motion contained a certificate of service; however there was no date or method of service specified in the certificate.  Saffold set the hearing a mere two days after that motion was filed, Baumgartner not having been yet been served with a copy of it, on May 9.   The basis for the third motion was that Baumgartner had filed a federal lawsuit seeking injunctive and declaratory relief against the Ohio Pharmacy Board and several state public officials on April 7, although she had not attempted to serve any of the defendants.   On May 8, the day prior to her hearing, she voluntarily dismissed the lawsuit.   Kasaris alleged that because she had not first sought the trial court’s approval to file the suit, she had violated her bond conditions.   No evidentiary hearing was held in order to determine the truth or falsity of any of the allegations contained within the suit.  Based solely upon Baumgartner’s act of filing a lawsuit in a federal court which was voluntarily dismissed before it had been served on anyone, Saffold granted Kasaris’ motion to revoke on the same day of the hearing, May 9, and Baumgartner remains incarcerated.   Finucane argues that in general, cases throughout the federal courts hold that once a state has made provision for bond pending appeal, the arbitrary denial of such bond violates the Fourteenth Amendment of the United States Constitution.    The courts have held that  “[t]he right to petition one’s government for the redress of grievances is enshrined within the First Amendment to the United States Constitution,” and that “ability to seek redress in the courts is a fundamental right, guaranteed by the due process provision of the Fourteenth Amendment to the United States Constitution.   The doctrine of unconstitutional conditions prohibits a governmental entity from forcing a person to exchange a constitutional right for another right or privilege, holding that if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.   “The doctrine of unconstitutional conditions prohibits terminating benefits, though not classified as entitlements, if the termination is based on motivations that other constitutional provisions proscribe”, the federal court held in  Bourgeois v. Peters (2004).   Courts which have addressed the issue of “unconstitutional conditions” in the context of bail conditions have been careful to ensure that government does not use unconstitutional bail conditions to chill First Amendment rights, including speech, press, assembly and petitioning activities.  In. Leary v. United States, the federal court held that “If the appellant’s eligibility to be enlarged on bail under the Eighth Amendment may be lost because he exercises his First Amendment right to freedom of speech and to freedom of the press, then [the law at issue] imposes an unconstitutional condition.   Federal case law cited by Ms. Finucane points out the First Amendment, to the fullest extent, protects all citizens and that numerous cases have firmly established “that the Constitution, and notably the First Amendment, reaches inside prison walls.”   Because the condition of Baumgartner’s bond at issue, which impinges upon her First Amendment right to petition for redress or grievances, could not have been curtailed as extensively as it was in her bond condition, had she been incarcerated, it is unconstitutional to institute it as a condition for remaining at large.   It’s unknown when the court will rule on the motion.  6-29-08     Baumgartner Appeals Court Okays Criminalizing Free Speech   North Country Gazette 03-08-08 -- In a chilling, but not unexpected decision, the Sixth District Court of Appeals has upheld the 2006 criminal contempt conviction of former Oak Harbor attorney Elsebeth Baumgartner, lending troubling implications for the public’s right to criticize public officials, especially the judiciary. . . . The Sixth District essentially insulated thin-skinned and egotistical judges such as retired visiting judge Richard Markus of northern Ohio, placing Markus in a cocoon and ignoring well-established case law, especially federal case law, concerning contempt cases and the First Amendment to the U.S. Constitution, in essence criminalizing the exercise of free speech. . . . The Sixth District failed to address any controlling U.S. Supreme Court precedent which prohibits the punishment of political speech or restricts comments on public affairs. . . Does a citizen have the constitutional right to criticize a judge or other public official without fear of retaliation by arrest and jail?  No, according to Markus’ brethren in the unanimous 3-0 decision released Friday. . . .  The case is likely on a track direct to the U.S. Supreme Court as Baumgartner says she will take the matter to federal court. . . . Last year, Ottawa County probation officer Jody Royster had admitted that it was “open season” in Ohio on Baumgartner.  Conventional wisdom indicated that there was virtually no way that Baumgartner could have expected to win her appeal at the state court level. Ohio Official Admits It's "Open Season" On Baumgartner. In a sworn affidavit given by the late Judge John Adkins last January, Adkins reportedly admitted that in essence there is a “judicial hit” on Baumgartner, admitting that he had been appointed by Chief Justice Thomas Moyer to handle the initial politically charged case against brought against Baumgartner in 2002 on complaint of Erie County prosecutor Kevin Baxter and in essence, Adkins admitted that he had allegedly been ordered to stifle her and insure a conviction which ultimately led to her disbarment and later revocation of her pharmacy license. Conviction upheld for ex-attorney By Kristina Smith Horn, Staff writer 03-08-08 -- An appeals court upheld Elsebeth Baumgartner's 2006 criminal contempt conviction for accusing a judge of persecuting her and committing crimes. . . . The disbarred Oak Harbor attorney gave no evidence to back up any of her dozens of allegations against Visiting Judge Richard Markus of Cuyahoga County while he presided over a civil libel trial against her in 2004, the Sixth District Court of Appeals ruled Friday. . . . Baumgartner, 52, served 120 days in the Ottawa County Detention Facility after another visiting judge found her guilty of 27 counts of contempt in Ottawa County Common Pleas Court. . . . "We recognize that judges can be subjected to rude and insolent comments and behavior," the justices wrote. "We also recognize that judges must necessarily withstand this rudeness and insolence on occasion. A judge's life is not for the meek. . . . "Having said that, we finally recognize that there is behavior so outrageous that it constitutes an attack on the legal system and is, therefore, contemptuous." Click to Search the North Country Gazette for its extensive reporting on Elsebeth Baugartner Ohio Attorney Baumgartner Jailed Again By Greg Szymanski 02-29-08 -- An Ohio attorney facing 66 years and six months in jail for speaking out a city council meeting was jailed last Thursday after making a routine court appearance in preparation for her upcoming trial. . . . Information still remains sketchy as to the exact reason why attorney Elsebeth Baumgartner was hauled away to the Erie County jail, but sources close to the case say it's nothing but 'political pay back' for uncovering serious corruption in Cuyahoga County leading all the way to the doorstep of the White House. . . . As outrageous as it sounds, Baumgartner faces a total of more than 109 years in jail on other felony charges stemming from city council incident, including emailing a high ranking Ohio judge and running a controversial web site accusing high ranking Ohio officials with serious crimes.. . . 'They have twisted the law and essentially taken away my freedom of speech rights,' said Baumgartner two weeks ago after appearing on Greg Szymanski's radio show, The Investigative Journal. . . . After Baumgartner was jailed Thursday, she was unavailable for comment, as all phone and email contacts have gone unanswered. . . . However, close friend and associate, Angela Caputo, provided the following update on her case, saying as of Sunday evening Baumgartner was still being held in the Erie Country essentially as a modern day 'political prisoner.' . . . 'Elsebeth is in the Erie County jail. Thursday was supposed to be the start of her trial on felony fleeing and eluding in front of Visiting Judge David Knepper,: said Caputo. 'I do not have any details yet - just a message from her husband Joe Baumgartner. Selective Prosecution—A Sign Of Tyranny North Country Gazette Commentary 02-13-08 -- Suppose you’re traveling on a city street and come to an intersection where there’s a stop sign. You look to your right and see an occupied patrol car sitting in an adjacent parking lot.  All the cars ahead of you roll on through the stop sign and the cop makes no move whatsoever to cite them.  You do the same thing when it’s your turn at the stop sign and wham—here comes the cop after you, red lights flashing and siren wailing. . . . Selective enforcement, you cry!  How come you’re stopping me when everyone else was doing the same thing and you didn’t bother them?  Of course, maybe they weren’t at the city council meeting last night like you, speaking out against the proposed increase in police salaries.  Could it be retaliation? . . . How about if you’re an owner of a business that’s surrounded by other mercantile shops?  The other business owners put up new signs without having to obtain a permit but when you do put up the same type of sign, you get served with a notice of zoning violation, summoning you to court. . . . Selective enforcement you cry!  How come you’re citing me but not the other business owners?  Could it be because they paid the zoning officer $50 to look the other way and I refused to do so? Could it be intimidation? . . . Selective enforcement is a violation of the constitutional guarantee of equal protection for all persons under the law.  On the federal level, the Due Process Clause of the Fifth Amendment to the U.S. Constitution requires equal treatment.  The Equal Protection Clause of the Fourteenth Amendment extends the prohibition on selective prosecution to the states.  The equal protection doctrine requires that persons receive similar treatment under the law. . . . The U.S. Supreme Court has held that selective prosecution exists where the enforcement or prosecution of a criminal law is “directed so exclusively against a particular class of persons…..with a mind so unequal and oppressive” that the administration of the criminal law amounts to a practical denial of equal protection of the law. Judicial Coercion © 2007 North Country Gazette 3-10-07 -- 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.

Ohio Whistleblower Gets 8 Years For Criticizing Judge

CLEVELAND---Government critic and judicial whistleblower Elsebeth Baumgartner has been sentenced to eight years in prison for writing e-mails to a 76-year-old retired visiting judge who is still sitting on the bench adjudicating matters although the Ohio Constitution mandated his removal from the bench when he reached age 70. http://www.northcountrygazette.org/articles/121906EightYears.html

November 29, 2006

Baumgartner Jailed 120 Days For Criticizing Rent-A-Judge

© 2006 North Country Gazette

Seven months after former Oak Harbor attorney Elsebeth Baumgartner was tried in Ottawa County on 34 contempt charges lodged against her by retiring visiting judge Richard Markus, visiting judge David Faulkner rendered his verdict, finding her guilty of 27 counts of contempt. . . . On Tuesday, Faulkner sentenced Baumgartner to 120 days in the Ottawa County Jail, denying a stay and appellate bond while she appeals his rulings
 

March 25, 2006

October, 2005

OAK HARBOR, OHIO--Charges of prosecutorial misconduct including use of the office for political retribution have once again been brought before the Ohio Common Pleas Court by judicial whistleblower Dr. Elsebeth Baumgartner and Bryan DuBois, editor of a blog which focuses on judicial and governmental corruption in northern Ohio.

http://www.northcountrygazette.org/articles/101605OhioBloggers.html

September 9, 2005

http://www.theempirejournal.com/090805_Bloggers_in_
Ohio_Free_Speech_Case_Claim_Indictment_Forged.html

Complainant Judge in Ohio Case Denies
Baumgartner Sixth Amendment Rights

Whistleblower Attorney
Baumgartner Released From Jail

Baumgartner, arrested and indicated on intimidation and retaliation harges for the exercise of free speech rights in challenging the alleged corruption of public officials was released Thursday from the Cuyahoga County Jail in northern Ohio after posting a reduced $25,000 bond.

August 10, 2005

“If a 50 year mother of two can be tortured for 10 days as a result of an indictment that is a forgery on its face and her business partner arrested and abused for reporting her story, then obviously this country is lost”, former attorney Elsebeth Baumgartner told The Empire Journal after being released from an Ohio county jail where she was held for 24 days, 10 days in isolation with no outside contact, for having dared to criticize Ohio public officers. To read further click below:

August 4, 2005

First the Ottawa County Clerk’s office refused to allow former attorney Elsebeth Baumgartner the right to file an appeal in a criminal case---a right guaranteed by the Bill of Rights.

   Now they’re denying her the right to defend herself in felony charges against her brought by the judge in her case.

    Officials in Ottawa County are claiming that although she is currently under indictment in both Ottawa County and Cuyahoga County on complaint on retired visiting judge Richard Markus, 74, that she cannot file motions in her own defense unless she has prior approval from the complainant in the case------Ohio visiting judge Richard Markus.
 

http://www.theempirejournal.com/071905_intimidating_a_judge.html