First Amendment under attack in Ohio.


PDA






Warren
July 31, 2005, 01:57 AM
Link (http://www.theempirejournal.com/072405_perspectives.html)



Friday, July 29, 2005

Ohio Prosecutor Extorting First Amendment
By June Maxam


...........................................................................................................................


Stop writing and we’ll reduce your charges, an Ohio prosecutor has told an editor, in essence now publicly admitting that the criminal charges lodged against the website writer are direct retaliation for his exercise of First Amendment rights.

That’s illegal.

Less than two weeks ago, Daniel Kasaris, special prosecutor against two critics of public officials in northern Ohio, stated publicly that the duo’s website which often levels caustic charges against public officials, especially judges, and focuses on alleged governmental wrongdoing, was not a factor in the arrests of the pair.

But now he says if the website editor stops writing for the site, he’ll reduce the felony charges he brought against him to a misdemeanor. Sounds like blackmail to us; also seems to establish that he made a false statement.

Not only is that a blatant violation of First Amendment rights by an agent of government but outright extortion. It would appear to us that Kasaris is the one who should be criminally charged, attempting to force a citizen to give up his constitutionally guaranteed rights in order to regain his freedom.

The constitutional violations keep mounting in this case. Now the government and the editor’s government lawyer, public defender Brad Greene, are allegedly holding hearings without informing the defendant or allowing the defendant to be present.

THAT is a blatant violation of rights. The Sixth Amendment and the Fourteenth Amendment guarantee a defendant an absolute right to be present at any and all material stages of a proceeding. Clearly, a pre-trial hearing is a material stage. Plenty of case law on that issue.

Should any conviction somehow evolve out of this case, there is already a well-established claim of ineffective assistance of counsel, a Sixth Amendment violation, by not upholding the defendant’s right to be present at the hearing.

Former Ohio attorney Elsebeth Baumgartner, 50, and the editor of a news blog, Bryan DuBois, 28, of Sandusky, Ohio, have been charged with intimidation and retaliation because a judge filed a complaint against them, claiming that he was intimidated by them and their charges of judicial corruption.

Dr. 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. Baumgartner teamed up with DuBois in the publication of Erie Voices, www.erievoices.com/blog, a website that publishes articles and opinion alleging misconduct by public officials in several northern Ohio counties including Cuyahoga, Erie, Lucas and Ottawa.

Baumgartner faces 10 counts of intimidation and three counts of retaliation, third-degree felonies, and one count of possession of criminal tools, a fifth-degree felony. She is being held in the Cuyahoga County Detention Facility on a $360,000 bond. DuBois faces one count of extortion, two counts of intimidation, one count of retaliation, all third-degree felonies, and one count of possession of criminal tools, a fifth-degree felony. The tool? A computer.

DuBois, a former Marine who has no previous convictions, is being held on bonds totaling $190,000 His charges purportedly relate to a note he allegedly handed former School Superintendent Charles Burns after Burns testified against Baumgartner during a libel trial last year in which Burns had sued Baumgartner. DuBois maintains he can prove that Burns allegedly committed perjury.

It is alleged that the pair used emails to intimidate and threaten visiting judge Richard Markus, a judge who had presided in cases involving Baumgartner. In fact, it is alleged that one “threatening email” to Markus was sent in November, 2004, prior to him presiding over that same libel trial. Kasaris said that some of the charges against DuBois stemmed from an email that he allegedly sent to Markus before the libel trial began against Baumgartner. Kasaris labeled the email threatening and said that while it didn’t threaten bodily harm, it threatened the judge’s reputation and on the basis of that, he lodged a charge of extortion against DuBois.

If Markus was that intimidated by that so-called threatening email and in fact used it as a basis to file a criminal complaint against Baumgartner, then it appears that Marcus should be brought up on judicial misconduct charges as ethically he could not have presided at that trial and certainly not ruled against Baumgartner. Court rules and case law would require that entire proceeding to be dismissed and any judgment set aside.

At the hearing for DuBois earlier this week, Kasaris reportedly said that he would be willing to drop the charges against the editor to misdemeanor level if DuBois would agree to three things.

Stop writing on www.Erievoices.com, because it “has obviously been taken over by Elsebeth Baumgartner”’;

Not associate with Elsebeth Baumgartner for the duration of his probation, which could be up to five years.

Make a statement regarding Elsebeth Baumgartner’s influence in his writing of the email to Judge Markus on 11/29/2004.

Kasaris needs to go to the public library and read the Bill of Rights---freedom of speech, freedom of press, freedom of expression, freedom of association.

Greene himself guaranteed an even stronger argument for DuBois for ineffective assistance of counsel when Greene reportedly told the family that he didn’t argue for reduction of bail even though he could have because he didn’t think the family could come up with $2,000 if the bond was reduced to $20,000. It doesn’t take a rocket scientist to figure that the family could come up with $2,000 a whole lot easier than they can the current $15,000 needed to post his bond. Maybe if Greene had told his client about the hearing and discussed the matter with him, he might have been able to make a more informed and beneficial decision for his client.

The indictment against DuBois was obtained by Ottawa County prosecutor Mark Mulligan, a target of one of DuBois’ investigative reports. Mulligan has reportedly removed a sworn affidavit from the court file which detailed the alleged misconduct of Mulligan. Retired Hardin County visiting judge David Calvin Faulkner said on the record that the existing conflict of interest between Mulligan and DuBois “didn’t matter” because Mulligan is an advocate for the state and that he didn’t have to be impartial. The judge said he was the only person who needed to be fair minded in the case.

Confused yet? Both Baumgartner and DuBois have been charged in two counties, Ottawa and Cuyahoga and have court proceedings in both before different judges with different prosecutors. Kasaris is prosecuting the duo in Cuyahoga County while Mulligan is the persecutor in Ottawa County. DuBois is being represented in Ottawa County by attorney Robert Lynch and although Faulker claimed that he was “fair minded”, after DuBois’ wife and father testified in favor of reducing DuBois’ bond, Faulker denied Lynch’s motion in Cuyahoga County, stating that he saw absolutely no reason to lower it.

Both Baumgartner and DuBois have been unlawfully held in isolation, denied access to mail, phone and visitors. Kasaris has admitted that he ordered that Baumgartner be held in segregation but it is unknown what judge, if any, signed such an order and on whose authority jail officials acted. Kasaris allegedly said he was taking orders from Ottawa County officials who said Elsebeth is a “bad girl” and needs to be put in isolation.

Baumgartner represented herself at her pre-trial Wednesday in Cuyahoga County. She questioned the validity of the indictment, claiming it had no prosecutor’s signature and it wasn’t notarized.

The judge, in that case, Shirley Saffold, has questioned why the bonds against Baumgartner and DuBois have been set so high. No bond hearing has been held as required by law. She also questioned the isolation order and heard Baumgartner’s husband, Joseph tell the court that he was still not permitted to visit his wife.

The wrongdoings in this case are compounding---not by the defendants---by the public officials.

It is absolutely mind-boggling that Kasaris who claims to be representing the People of the State of Ohio thinks that he can control the content of the press, restrict individual associations. Mr. Karasis would do well in some Third World countries where constitutional freedoms haven’t yet been established.

Freedom of the press is the guarantee----yes, guarantee----by a government of free public speech for its citizens and their associations, extended to members of news gathering organizations and their published reporting. It extends to news gathering and processes involved in obtaining information for public distribution.

And then there’s the issue of prior restraint, Mr. Kasaris. You can’t intimidate the press, you can’t tell the press what they can and can’t write. You need to go back to school and take American History 101, learn about the U.S. Constitution and in particular, the Bill of Rights. Freedom of association is the right enjoyed by free adults to mutually choose their associates for whatever purposes they see fit. Neither you individually and certainly not in your role of governmental agent can infringe upon these rights.

Extortion is a criminal offense which occurs when a person obtains money, behavior or other goods and/or services from another by wrongfully threatening or inflicting harm to his person, reputation of property.

Isn’t that what Kasaris, special prosecutor, is doing to Erie Voices editor Bryan DuBois, telling him that unless he stops exercising his First Amendment right to free speech, free press and freedom of association that he’ll charge him with legally insufficient felonies and keep him locked up for lack of $190,000 bond?

Section 2905 of the Ohio Criminal Code states that no person, with purpose to obtain any valuable thing or valuable benefit or to induce another to do an unlawful act, shall expose or threaten to expose any matter tending to subject any person to hatred, contempt or ridicule or to damage any person’s personal or business repute or to impair any person’s credit and whoever does so is guilty of extortion, a felony of the third degree.

…….subject any person to hatred, contempt or ridicule or to damage any person’s personal or business repute. Isn’t that exactly what Kasaris, his cohort Erie County DA Kevin Baxter and Mark Mulligan have done to Baumgartner and DuBois?

Not only has their been a blatant and egregious violation of the human and constitutional rights of Baumgartner and DuBois but in our view the agents of government are themselves engaging in extortion and intimidation in trying to wield the threat of prison as a way to silence their critics. They must be held accountable. 7-29-05

If you enjoyed reading about "First Amendment under attack in Ohio." here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
Javelin Man
July 31, 2005, 09:03 AM
Find out the rest of the story on Else and you'll learn that the prosecutors are being very, very nice to her and her new playtoy. She's been charged with many crimes and brought back from Florida where she was hiding from the law. She's been guilty of libel, slander, extortion so many times she was disbarred from the legal profession.

As many people have said in the past, criminals have NO rights. She is among them.

I don't believe this is an issue of 1st amendment rights, it is an issue of trying to get someone to stop harassing public officials, and the public in general as well as wasting taxpayers' money in fradulent lawsuits she keeps bringing into the system.

Hopefully her young accomplice can see the light and perhaps being changed to a misdemeaner will help him in the future.

Ryder
July 31, 2005, 09:58 AM
Can't recall hearing of a prosecutor being arrested. That means they do what they want. So what's your point? Business as usual here. Don't tell me you've never experienced extortion from a prosecutor that was against rights? Boy are you in for a treat one of these days! :D

Users of the 1'st don't go out of their way to aid 2'nd amendment practitioners. As far as I am concerned let them see how it feels to be raped by government. Can't help but wonder how they intend to defend their rights however. A rolled up newspaper? Hahah riiiiight.

The principle behind your claim does pique my altruistic sensibilities and I do care about my own personal right to free speech to the point I would defend it but no I am not always willing to sacrifice for others. Going out of my way to care about someone who I know for sure in advance does not care about me is not even a remote possibility.

JohnBT
July 31, 2005, 12:02 PM
Googled her name - I'm glad she's not stalking me. John

www.courtwatchers.org/ELSEBETHREGISTER1.htm

2004 - ...the Ohio Supreme Court Disciplinary Council permanently disbarred Baumgartner for violating the Supreme Court’s Code of Professional Conduct.

She engaged in conduct involving dishonesty, fraud, deceit or misrepresntationm taking legal action on behalf of a client to merely harass or maliciously injure another, knowlingly advancing a claim of defense that is unwarranted under existing law, among violating ot statutes in the conduct Code, according to the Council’s decision.

Baumgartner was released from jail in September after serving time for violating a three year probation and escape charges.

Flyboy
July 31, 2005, 03:54 PM
As many people have said in the past, criminals have NO rights.
Bull????.

They may have some rights restricted, but criminals are most certainly NOT without rights. Matter of fact, if you'll have a quick look at the Bill of Rights, you'll see just how many of the amendments deal with the rights of the accused and the convicted. Last I heard, even if convicted of a felony, you're still allowed to speak out against the government.

And that's probably a good thing, if you think about it.

javafiend
August 2, 2005, 12:09 AM
Users of the 1'st don't go out of their way to aid 2'nd amendment practitioners.

The category "users of the 1'st" includes all who post on THR.

people kill guns don't
August 2, 2005, 04:48 AM
Bryan served in the U.S. Marines for four years and saw action with the 26th MEU. He believes in both the first and second Amendments. And so do I. He is an independent thinker and realized that he needed to look beyond (and through) publicized statements from the people trying to silence this woman who has a doctorate in Pharmacy and graduated at the top of her law class. It has become apparant to me that she is speaking the truth. Why on earth would they be going to such lengths to shut her up? Fools usually talk enough to discredit themselves, so why are they trying to silence her? GKPD

Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action. George Washington

CAS700850
August 2, 2005, 09:09 AM
Ryder,

Can't recall of a prosecutor being arrested? A now-former co-worker was arrested for D.U.I., Leaving the Scene of a Crash, and Obstruction fo Justice. That's why she's not a co-worker any longer.

And, what do you refer to as "extortion by a prosecutor"? A plea bargain offer? A request to cease and desist or face charges? That's not extortion, that's the business of the criminal justice system. Real extortion by a prosecutor can (and should) be reported to the state Bar, and the prosecutor should be investigated.

Remember, not all prosecutor's are evil. Some of them even believe in the 2A, and belong to a chat board regarding that right. :D

As for teh rights of the defendant to be at all hearings, that is true with regards to formal hearings. However, in Ohio, pretrial conferences are informal hearings, usually conducted in chambers, during which the judge only discusses procedural matters, such as length of trial, what motions may be coming, logistical issues such as the need for translators. Unlike Law and Order, something like a motion to suppress is not resolved in a five minute argument while the attorneys chase a judge down a hallway.

beerslurpy
August 2, 2005, 09:16 AM
Law and Order isnt real? *withdraws law school application* Dammit!

Henry Bowman
August 2, 2005, 09:23 AM
Next you're probably going to say CSI isn't accurate either. :rolleyes:

CAS700850
August 2, 2005, 09:37 AM
Still haven't been assigned a string of attractive female assistant prosecutor's to assist me with cases. Last time I was assigned an assistant on a case, it was a guy my age who cuolnd't stop complaining about the easy access to firearms in this country. So, I'm guessing Law and Order must be fiction. Although, it's pretty good.

AS for CSI, I've had a little thing for the Caleigh character on CSI: Miami. Good looking and into firearms. As for the rest... :barf:

Flyboy
August 2, 2005, 11:55 AM
A request to cease and desist or face charges?
Almost: a request to cease and desist exercising her right to free speech or face (stiffer) charges. That is extortion, and has no place in any justice system.

buzz_knox
August 2, 2005, 12:16 PM
Looks bad all around. Prosecutors shouldn't make staying quiet part of a plea deal, and judges shouldn't hear cases and claim to have been threatened

But, you also don't send e-mails to judges you have a problem with and you don't talk to witnesses in a case against a friend. You think a judge is corrupt, call the judicial review board and file a complaint, or a motion for recusal. You think someone committed perjury, call the state attorney general if the DA won't do anything.

CAS700850
August 2, 2005, 01:18 PM
Flyboy,

I think you're right. A threat to stop legal actions or face charges is crap, and should be dealt with accordingly. A threat to stop illegal activity or face charges is Alternative Dispute Resolution. :D Let me tell you, nothing shuts down a crack house, or at least moves it along, like a letter from the Drug Task Force and the Prosecutor's Office stapled to the front door.

If you enjoyed reading about "First Amendment under attack in Ohio." here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!