North Country Gazette (New York State), February 25, 2006
EXCLUSIVE - Ohio Free Speech Case Directly Related To Noe, Pay To Play
OAK HARBOR, OHIO-- Bet you thought that Boss Hogg and Roscoe P. Coltrane were still in Hazzard County, Georgia.
Well, there appears to be a cloning of the Dukes of Hazzard television show, popular in the early 1980’s, re-emerging in northern Ohio in Lucas, Ottawa, Erie and Cuyahoga Counties.
Why, Ottawa County sheriff Robert Bratton even resembles Boss Hogg and for sure, as the world now knows with the indictment of Tom Noe, GOP fundraiser for President Bush and close personal friend of Ohio’s Gov. Bob Taft, there’s corruption in northern Ohio, there’s public corruption there with ties all the way to the White House.
Not only has the Governor himself been found guilty of misdemeanor ethics violations, so have several of his aides, most recently two this past week, one of whom admitted channeling campaign contributions from Noe to three Ohio Supreme Court justices.
It was also revealed this past week that federal prosecutors are looking into pay for play allegations made by two Akron-area lawyers who said that they were denied state contracts by Attorney General Jim Petro after they refused to donate to Petro’s 2002 election campaign.
Pay to play.
Former Oak Harbor attorney and pharmacist Elsebeth Baumgartner blew the whistle on a pay to play scheme back in 2001 and immediately, the attempts to discredit her, intimidate her and shut her up began. She was disbarred, albeit without legal foundation and then her pharmacy license was removed. And she was criminally charged, and charged, and charged. She’s served nearly a year in jail and is currently being threatened with over 66 years in jail----for exercising her First Amendment right to free speech.
Judges and prosecutors labeled her as a “threat to society”. It was more like she was a threat to their livelihoods with her allegations of public corruption which she could substantiate.
Journalists across the United States should be seriously concerned about the retaliatory actions of government officials against Baumgartner, not only the retaliatory arrests and threats of incarceration and attempts to label her incompetent in order to make her charges of corruption go away, but the exercise of a search warrant to seize her computers, records of her online publication, her work product and all documents and evidence which she had amassed against the public officials.
Retired visiting judge Richard Markus, 75, a judge who she has long tangled with and charged with improper activities, says she intimidated him by email----except it took him over a year to make a complaint and during the entire time, he continued to adjudicate cases against her, rendering monetary judgments against her, filing criminal contempt charges against both her and her husband. http://www.northcountrygazette.org/articles/100105JudicialTyranny.html
Baumgartner is currently simultaneously prosecuted in three counties (Ottawa, Erie and Cuyahoga) by the offices of prosecutors she has reported to federal agencies. She labels these as sham criminal proceedings intended to unconstitutionally criminalize speech or as a consequence of her speech critical of the government. Two of the three prosecutions arise from complaints by Visiting Judge Richard Markus that Baumgartner’s legal writings and email communications to him which criticize his conduct as a visiting retired judge and private judge in her civil cases constitutes criminal contempt of court, intimidation, retaliation, falsification and possession of criminal tools, namely her computer.
The former lawyer is currently under threat of nearly 67 years of incarceration for allegedly sending emails to Markus on which others were copied, complaining of what she says is Markus’ outrageous misconduct in civil cases in Ottawa County in a case somehow filed in Cuyahoga County. She points out that Markus waited over a year to have her criminally charged for sending the emails and yet, although a complainant and witness against her, continues to preside over her civil cases in Ottawa County.
Baumgartner asserts that Judge Markus was intentionally assigned to all of her cases by Chief Justice Thomas Moyer to award sham civil judgments against her in order to bankrupt her, to dismiss her family’s legitimate lawsuits filed against public officials as well as to declare her a vexatious litigator in retaliation for her complaints of judicial corruption to the USDOJ.
Moyer also has a rather obvious conflict of interest involving Baumgartner which ethically precludes him from being involved in any matter concerning her, including the assignment of judges to matters relating to her.
In November, 2002, Baumgartner attempted to have Moyer federally investigated for allegedly "manipulating the Ohio visiting judge system in order to affect political case outcomes". As a result of her charges of governmental and in particular judicial corruption and whistleblowing activities, Baumgartner was disbarred by the Ohio Supreme Court, described as a "threat to the public safety". She describes the onslaught of charges against her and her disbarment as "the most obvious attempt to silence a citizen that I've ever seen".
Moyer himself allegedly lobbied the Ohio Legislature to pass an “anti-intimidation law” and according to an article appearing in the Akron Beacon Journal in August, 2001, state authorities knew they were on thin ice constitutionally when they enacted the 1996 law making it a third degree felony to file documents to intimidate public officials. http://12.100.23.254:8080/bj/news/2001/August/05/docs/014421.htm
In 2001, Ohio prosecutors imprisoned four people for “paper terrorism” for having dared to challenge the government and “intimidate” public officials by trying to assert their rights under the Constitution and statutes in court, and worse of all, they do it pro se, representing themselves, yet another constitutional right.
In June, 2001, Cuyahoga County prosecutors were successful in obtaining 10-year prison sentences against two defendants for supposedly intimidating Cuyahoga County officials.
The right to protest against the government, to seek redress of grievances, was among the primary concerns of the founding fathers when they ratified the U.S. Constitution over 200 years ago. Ohio’s statute is the only one of its kind in the United States and has never been constitutionally challenged----yet.
But while Ohio’s allegedly unconstitutional law targeted non-lawyer litigants, Baumgartner was an attorney, one who graduated at the top of her law class in 1994.
In one case prosecuted in Cuyahoga County in 2001, prosecutors originally charged Sandra and Ellis Lehman with 38 counts each of intimidation, retaliation and engaging in corrupt activity, an allegation usually associated with Mafia cases, because they filed criminal complaints against several public officials and made other court filings.
But while the government appeared to be after the Lehmans, it seemed they really wanted to shut down an Akron-area group with which the Lehmans were associated called Right Way L.A.W. (Learn and Win) which had allegedly helped Mrs. Lehman draft and file court documents. Cuyahoga County prosecutors cut a deal with Lehman, dropping some of the charges against her if she would provide government officials with information concerning Right Way and other groups, or in other words, become a government informant.
However, Richard Schramm, founder of Right Way, says the group never advocated intimidating public officials and thinks that Lehman implicated the group in order to avoid prison. She was sentenced to two years in prison, all of which was suspended except for 60 days.
The Baumgartner-DuBois case has serious constitutional issues and as Robert O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia says, “A citizen has a right to criticize a judge”.
And such criticism, absent a threat, constitutionally constitutes legitimate political protest which cannot be criminalized.
Ohio officials claim that they were justified in passing such unconstitutionally sound legislation because of the Oklahoma City and World Trade Center bombings. The Ohio legislature said they felt that intimidation of public officials, such as themselves, was a more serious crime than other forms of intimidation such as menacing or stalking against ordinary citizens.
Baumgartner points out that nobody has ever challenged the constitutionality of the “paper terrorism” statute because the people charged have ever been coerced into pleas or given harsh sentences and unable to file appeals. She says the statute has been used almost exclusively by prosecutors out of the economic crimes unit in Cuyahoga County.
She says the 1996 statute was intended to only apply to the filing of sham legal documents that are either false like a false bankruptcy lien or other lien filed in a legitimate court or a fake court itself such as a militia court In other words everything else would involve the "true threat" analysis of any written word. False statements only would be civil suits if they do not constitute a true threat.
“What Chief Justice Moyer has accomplished is the shutting down of the right of citizens to press criminal charges against public officials, especially judges”, Baumgartner says.
Baumgartner has been a long-time critic of Ohioan government, both local and state, alleging massive federal and state grant fraud as well as abuses of power by public officials, particularly Erie County district attorney Kevin Baxter and numerous judges in northern Ohio. In 2004, she teamed up with Bryan DuBois, 28, in the publication of Erie Voices, www.erievoices.com, a website that published articles and opinion alleging misconduct by public officials in several northern Ohio counties including Cuyahoga, Erie, Lucas and Ottawa.
Both she and DuBois were arrested last summer following a secret indictment which alleged that they had intimidated retired visiting judge Richard Markus by allegedly sending him emails expressing their opinions about various issues before him. They have been charged in both Cuyahoga County and Ottawa County.
DuBois disavowed any relationship with Baumgartner in December and it was later learned he had become a government witness against her, apparently in exchange for a favorable plea deal and other possible considerations.
Baumgartner and DuBois are scheduled to be tried together on March 27, however it's likely that the actions will be severed, especially now since it’s been revealed that DuBois and his wife, Mandy, are listed as witnesses for the prosecution against Baumgartner. It also appears that DuBois and his wife were the informants used by the government to try to justify their raiding of Baumgartner’s house to seize her computers and all documents related to her publication and work at ErieVoices as well as all of her documents and materials that substantiate her allegations of public corruption. The seizure also impairs Baumgartner in preparing for her defense of the intimidation charges levied against her by Markus and other charges.
The charges against both Baumgartner and DuBois concerns the criminalizing of speech on the internet critical of government affairs. Witnesses say that Judge Markus told Kasaris that the duo were a problem that needed to go away.
Baumgartner has been charged with multiple felony counts of intimidation and retaliation on complaint of Markus who claimed that Baumgartner had intimidated him by sending him emails critical of his judicial performance.
Baumgartner has been charged with eight counts of intimidating a judge, four counts of falsification, two counts of retaliation and possession of criminal tools, a laptop computer.
DuBois has also been charged with possession of a criminal tool as well as extortion, retaliation and intimidation.
The secret indictment against the duo was obtained by prosecutor Daniel Kasaris whose boss. Cuyahoga County prosecutor Bill Mason, had been the target of the duo’s blog's allegations of wrongdoing.
Kasaris indicted Baumgartner and DuBois in July, one day after DuBois filed a grievance against Kasaris and retired visiting judge Markus with the Cuyahoga County Bar Association. At first, Kasaris stated the Erie Voices website was not a factor in the arrest of the pair. But he said if DuBois stopped writing for the site and stopped associating with Baumgartner, he'd reduce the felony charges he brought against him to a misdemeanor. And apparently DuBois has taken the deal.
It appears that Kasaris has achieved what was possibly the ultimate goal---to shut down Erie Voices. After DuBois disavowed all association with Baumgartner and denied her access from the business after she had reportedly financed his legal defense, he suddenly removed the website from the Internet. The domain registration for Erie Voices indicates that it’s owned by The Arbor Group LLC of which Baumgartner is a principal.
According to a search warrant which appears on the website for the Ottawa County Sheriff’s office, DuBois and his wife are witnesses for the state against Baumgartner and it appears that one of them may be the “confidential reliable informant” on which the state based its application for the warrant.
The warrant was executed on Feb. 1 by the Ottawa County Sheriff’s Department and an investigator from the Cuyahoga County prosecutor’s office. Baumgartner says that all of her computer-based legal materials covering investigations for over the past five years as well as evidence and documents relating to Erie Voices which exposed public corruption including serious judicial misconduct by Judge Markus was confiscated.
Nearly a month later, she says there is no indication that the Cuyahoga County prosecutor’s office has any intent of returning her legal files, corporate documents or computers. She says her fear is that her defense is now completely undermined and that evidence will be fabricated against her on her own computers and or that her investigative work will be corrupted.
The website was completely shut down two days after the raid on Feb. 3 by her co-defendant and business associate, DuBois. She says it’s likely that DuBois has entered into plea deal negotiations with Kasaris after becoming a witness against her which resulted in all of her business records being confiscated. DuBois later maintained that he owned the website but the domain registration indicates otherwise.
Baumgartner says that all web based evidence related to proving her allegations of public corruption and Judge Markus’s alleged involvement in fixing cases for profit is possibly lost. She charges that DuBois’ attorney Jay Milano, has $15,000 of her husband’s money in his escrow account which she says DuBois obtained from her husband via alleged false representations that Milano would not only defend DuBois but defend the First Amendment rights of Arbor Group LLC to publish.
“Instead, of protecting those rights, Mr. DuBois has allegedly destroyed them and also allegedly misappropriated all the assets of Arbor Group LLC while shutting down the website and destroying the intellectual property value of the site”, Baumgartner says.
She says that computers seized contained records dating back six years of the pay to play scheme and were “taken by government prosecutors implicated in pay to play and case fixing”.
Baumgartner says the search warrant was facially defective and was approved by Judge Frederick Hany, a judge who has recused himself from all matters involving her for the past six years until now. She believes that part of the reason her computers were seized is that articles had appeared on the internet reporting that other attorneys had come forward to report linking campaign contributions to receipt of Ohio patent work and that Attorney Seminatore had called for a widespread investigation of Ohio pay to profit schemes led by the Public Integrity section of USDOJ.
She said she had sent emails to reporters confirming that she had direct evidence of obstruction of investigations into pay to play dating back to June 2001 and that much of Tom Noe's activity runs to Ottawa County where many prominent officials have vacation homes.
In June 2001, Baumgartner first approached the U.S. Department of Justice Office of Inspector General Glen Fine with an outline of a protection scheme operating at the highest levels of Ohio Government, including Chief Justice Thomas Moyer, AG Jim Petro and Auditor Betty Montgomery, which she charged was operating in conjunction with several law firm donors, prosecutor’s offices, and judges as well as key people in the U.S. Attorney’s Office and the FBI. Baumgartner said this alleged scheme was systematically allowing organized crime to flourish at unprecedented levels in Ohio. In effect, Baumgartner’s complaint claimed the machinery of state government had been converted to a racketeering enterprise which had successfully privatized the courts and ensured its members would never be prosecuted or successfully sued. She alleged that the system was then used to attack and retaliate against threats to the enterprise. She says the revelations surrounding the Thomas Noe case now validate her 2001 complaint.
Baumgartner charges that the reason Petro and Montgomery had failed to act sooner against Noe and Taft aides is that both were involved themselves in a pay to profit system involving attorneys of both parties.
“This system was first reported in December 2000 by me after Attorney William Connelly of Toledo (major donor and attorney to many Noe conduits) in cooperation with Assistant United States Attorney David Bauer undermined a public corruption complaint filed by me in Ottawa County Municipal Court (Judge Frederick Hany) and later in Common Pleas Court (Judge Paul Moon)”, Baumgartner says.
“My initial complaint disclosed efforts to obstruct inquiry into misappropriation of over $1.4 million from the Benton-Carroll-Salem Local Schools through sham contracts, fraud etc and theft of federal funds from the Put in Bay Police Department by its then Chief of Police James Lang. Attorney Connelly appeared on behalf of Chief Lang and arranged to have his own client, Defiance County prosecutor Jeff Strausbaugh, appointed as special prosecutor in under to undermine the case”, she continued.
“FBI agents Chuck Holloway and Thomas Greenawalt confirmed to me that Chief Lang did in fact misappropriate resources related to a federal COPS grant to Put in Bay but that AUSA David Bauer did not want to prosecute the case because it would result in the debarment of Put in Bay from future grants. AUSA Bauer actually gave Attorney Connelly an affidavit in direct violation of USDOJ regulations in order to assist him in undermining the criminal case I filed”. Baumgartner asserts.
“This then is the essence of pay to profit in Ohio: the ability of attorneys in conjunction with prosecutors and judges to undermine criminal prosecutions if it jeopardizes their associates’ ability to abuse their public offices.
“In June 2001, I filed a complaint with the Inspector General of USDOJ and the Public Integrity Section for a wide probe of top Ohio officials including Betty Montgomery, Jim Petro and Chief Justice Moyer and several prosecutors including Kevin Baxter, Mark Mulligan, and Jeff Strausbaugh for their alleged participation in a widespread pay to play scheme whereby contracts are allegedly steered and the investigations allegedly undermined upon complaint”, she said.
In November 2001, Baumgartner filed a petition for the establishment of a special grand jury to probe Ohio corruption.
Baumgartner says that although state auditor Montgomery allegedly became aware of Tom Noe’s alleged illegal activities in April 2005, “it didn't stop her from accepting nor for William Connelly to donate to her campaign for attorney general. Not surprisingly William Connelly represented many conduits before David Bauer and they avoided federal charges while Betty Montgomery and Jim Petro avoided investigating anything”.
“Meanwhile everybody seems to have forgotten the very suspect deal involving public officials Tom Noe, James Tuschman and Pete Silverman's ground floor investments in Hi Genomics”, Baumgartner says. 2-25-06
