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Two of three gun convictions in controversial N.J. handgun case overturned

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Laws control the lesser man. Right conduct controls the greater one. ~Chinese Proverb

 

Never do anything against conscience even if the state demands it. ~Albert Einstein

 

If... the machine of government... is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. ~Henry David Thoreau, On the Duty of Civil Disobediance, 1849

 

Integrity has no need of rules. ~Albert Camus

 

If we desire respect for the law, we must first make the law respectable. ~Louis D. Brandeis

 

Every actual state is corrupt. Good men must not obey laws too well. ~Ralph Waldo Emerson

 

It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do. ~Edmund Burke

 

I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do. ~Robert A. Heinlein

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I just find the whole thing to be more BS...

 

NJ makes BS laws...

guy breaks BS laws...

the argument that the state did not try to load and fire hi cap mags is ridiculous.. if they were really NJ legal magazines it would have been screamed from the roof tops..

even in NJs ridiculous legal system it would not have perused the charge..

we all know what is happening here..

 

the guy broke a bunch of stupid NJ laws..

the public outcry was huge..

and this is some stupid compromise to make it go away..

 

"well you didn't try that magazine to make sure it loaded and fired 15+ rounds.."

come on.. give me a break..

 

this is just more legal nonsense wasting our tax money.. putting on a ridiculous show..

if you feel he was genuinely innocent.. in the sense that he was really legally transporting guns.. really didn't have hi cap mags.. then you are entitled to that opinion..

but if you are rejoicing in the reversal of guilt for an individual who is truly guilty.. I have no sympathy..

 

the law should be changed.. there is no question.. but that is not an excuse to break it..

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Not sure how many of you read the actual opinion, but it's certainly not a pro-gun/pro-2A decision. In fact, it contains some stuff that's REALLY bad for us. The illegal possession of a handgun ruling was overturned for all the reasons we've talked about here, so that one was pretty cut and dry. But the other two, contain some really bad stuff in them

I was beside myself when I read the original judge refusing THREE TIMES the jury's request for the allowable exceptions for transporting firearms. The moving exception was brought up during the trial, and the jury ask (THREE TIMES) for further information on the law and exceptions. The condescending judge told them that it had no bearing, did not apply here--why not provide the law as requested and let the jury decide?? THat is how our system works!

 

The hollow point ruling has to be the worst. There is no explicit exception for transporting HP ammo between places of residence. The only transportation exception is for transporting from the place of purchase to your home/land owned by you. Once they are there, there is no way to legally transport them anywhere else. The judge even ruled that an implicit exception does not exist. IANAL, but that means there is no legal way to take HP ammo to the range, or even to another state (i.e. PA, where you would carry your gun legally with HP ammo).

Yeah, I don't get that at all. I hope they appeal that HP ruling and get some clarification. Are you supposed to leave your legally owned HP ammo behind when you move????

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I read the opinion. He did not "get off on a technicality" any more than a football team scores 2 points on a safety, or a baseball player is required to touch all three based to score a home run, or the entire Bill of Rights are "technicalities."

The judge and the prosecution screwed up by the numbers. The judge, by not allowing the jury to hear of the exemptions and make the judgment as to whether Brian Aitken's testimony as to whether or not he was "moving" was credible. (Note that his alleged statement of wanting to remove the firearms from the party in Hoboken is not inconsistent with moving between residences if he legitimately has two residences.) The judge is the arbiter of law, but the jury is the arbiter of fact. It is explicitly not the judge's role to determine if Brian Aitken's claim of the moving exemption was credible, and this judge usurped that role by falling to tell the jury that there was such an exemption. This is basic American Legal Procedure 101 stuff. As the appellate court judge noted in his decision, if the lack of a jury instruction had been harmless, he wouldn't have reversed.

The prosecution screwed up by not putting a certified "expert" on the stand, or by demonstrating in open court that the magazines in question had all the properties required to be considered a large capacity magazine. Again, this is basic American Legal Procedure 101 stuff that had nothing to do with the charges at hand. Testimony by an uncertified expert is hearsay, effectively. This is a procedural safeguard against people making stuff up on the fly, the way a lot of cops seem to do about gun laws when you ask them. The whole subject of expert witnesses is a complicated one in general, but the rule of having to have them certified prior is a well-established one.

Finally, normally the appellate judge's decision would not have quashed the charges. The case would have gone back to the lower court to be retried, so that a new jury could hear about the exemption for moving and the prosecution could either demonstrate in open court that the magazines functioned with 16 rounds or produced a certified expert to testify that they did so. The state is not going to do so for two reasons (one stated and one unstated): first, they can't do anything to him if they find him guilty on those two charges, as his sentence was commuted. They would spend a lot more money to tell him at the end "you're still a free man." Secondly, Brian Aitken can no longer appeal those convictions to a higher court. The laws in question are safe from being found unconstitutional in light of the Heller and McDonald decisions by a federal appeals court or even SCOTUS.

 

In short, Brian Aitken had two of the three charges against him dropped because the judge and prosecution made "rookie" errors in their case against him because they thought that getting a "gun criminal" off the streets was worth cutting corners. The state is not allowed to cut corners in a criminal case, because that makes it too easy to railroad people. Normally they'd get a "do-over," but the state is opting not to take it, to save money and to preserve the laws in question.

 

That's called "the rule of law." And, quite frankly, we need more of it in this country.

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Vlad--

Generally first time offenders committing nonviolent crimes with no intent get a good deal of leniency both during the trial (ie allowing all possible exceptions "in light of the best circumstance for the defendant") and sentencing (judges can claim this kind of circumstance was unlikely to happen again, the offender is unlikely to repeat, etc). I think what makes people really uncomfortable is that the state offered a bunch of plea deals that included a year of jail time--that's a long time for a non-violent first time offense. Then it appears he had the book thrown at him for not taking a plea. Remember, something like 10% of all cases go to trial, usually more complex ones. To me (and maybe others) it kind of feels like the judges involved were annoyed this guy didn't take a plea and were trying to encourage others with weapons offenses to do so in the future by dropping the hammer. Compare this story to any of those in NYC when some unwitting tourist gets caught with their CC gun--not sure of the manhattan HP laws, but my guess is a CCW is loaded with them, right? Obviously we can reasonably expect people to know and obey the law. But in circumstances where there is clearly no ill intent, no evidence of potential recidivism, and a crime of somewhat of unique circumstance the outcome is a plea to probation and a fine.

 

So why are people happy? Because it's scary to think that one could be arrested for a somewhat minor offense and spend so much time in jail--his sentence was technically within the law but not in keeping with common practice. So his lawyer is trying to use "technically" to get him back within the law.

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I read the opinion. He did not "get off on a technicality" any more than a football team scores 2 points on a safety, or a baseball player is required to touch all three based to score a home run, or the entire Bill of Rights are "technicalities."

The judge and the prosecution screwed up by the numbers. The judge, by not allowing the jury to hear of the exemptions and make the judgment as to whether Brian Aitken's testimony as to whether or not he was "moving" was credible. (Note that his alleged statement of wanting to remove the firearms from the party in Hoboken is not inconsistent with moving between residences if he legitimately has two residences.) The judge is the arbiter of law, but the jury is the arbiter of fact. It is explicitly not the judge's role to determine if Brian Aitken's claim of the moving exemption was credible, and this judge usurped that role by falling to tell the jury that there was such an exemption. This is basic American Legal Procedure 101 stuff. As the appellate court judge noted in his decision, if the lack of a jury instruction had been harmless, he wouldn't have reversed.

The prosecution screwed up by not putting a certified "expert" on the stand, or by demonstrating in open court that the magazines in question had all the properties required to be considered a large capacity magazine. Again, this is basic American Legal Procedure 101 stuff that had nothing to do with the charges at hand. Testimony by an uncertified expert is hearsay, effectively. This is a procedural safeguard against people making stuff up on the fly, the way a lot of cops seem to do about gun laws when you ask them. The whole subject of expert witnesses is a complicated one in general, but the rule of having to have them certified prior is a well-established one.

Finally, normally the appellate judge's decision would not have quashed the charges. The case would have gone back to the lower court to be retried, so that a new jury could hear about the exemption for moving and the prosecution could either demonstrate in open court that the magazines functioned with 16 rounds or produced a certified expert to testify that they did so. The state is not going to do so for two reasons (one stated and one unstated): first, they can't do anything to him if they find him guilty on those two charges, as his sentence was commuted. They would spend a lot more money to tell him at the end "you're still a free man." Secondly, Brian Aitken can no longer appeal those convictions to a higher court. The laws in question are safe from being found unconstitutional in light of the Heller and McDonald decisions by a federal appeals court or even SCOTUS.

 

In short, Brian Aitken had two of the three charges against him dropped because the judge and prosecution made "rookie" errors in their case against him because they thought that getting a "gun criminal" off the streets was worth cutting corners. The state is not allowed to cut corners in a criminal case, because that makes it too easy to railroad people. Normally they'd get a "do-over," but the state is opting not to take it, to save money and to preserve the laws in question.

 

That's called "the rule of law." And, quite frankly, we need more of it in this country.

 

 

when a guilty man gets off because of a legal error.. that is in my book.. a technicality... and he was guilty the moment he brought a 16 round magazine into NJ..

trust me... not trying to beat this to death..

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I do NOT think he should have rotted in jail...

i do NOT think he should have even served a year.. or even a month...

i do NOT agree with NJs gun laws..

 

but I also sure as hell do not find him innocent.. can YOU have 16 round mags? NO would YOU get off with a slap on the wrist? maybe.. maybe not..

justice should be fair and even...

the guy made a mistake.. he shouldn't pay for it the rest of his life.. but he sure as hell should not be given a free pass.. he broke the law.. and was caught..

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Of course, but he didn't get off with a slap on the wrist. He got a year in prison and likely lost a ton of cash in the process. Now his lawyer is trying to make it so that he's not a felon for the rest of his life in addition. I think it goes toward the whole "justice being fair an even" thing.

 

I take your point though. In this case it seems as though the law is finding that some illegal events that did happen didn't in order to vacate some charges. It would be better if those charges were less severe for the actual crimes that were committed.

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when a guilty man gets off because of a legal error.. that is in my book.. a technicality... and he was guilty the moment he brought a 16 round magazine into NJ..

trust me... not trying to beat this to death..

 

The appellate decision is about standards of evidence and fairness of process. He is presumed innocent until convicted in a fair trial by presentation of evidence that established guilt beyond reasonable doubt. The judge ensured an unfair trial and prosecution didn't show enough evidence to prove the magazine was in fact a high-cap magazine. We can "know" all we like, but it had to be properly proven.

As I said at the end, normally, this wouldn't matter, the state world get a second chance to do so (and, technically they could take that chance still.) They won't because it doesn't get them anything, and exposes the laws in question to overturn on appeal.

If you really seriously believe that the government can cut corners on any prosecution because the defendant is "obviously" guilty, then you and I really can't argue, because we have incompatible first principles. The appellate case was not about guilt our innocence, or the facts of the case (it never is.) It was about the process; did the state dot their i's and cross their t's and they didn't. If you think Brian Aitken should stand convicted of those two charges, reserve your ire for the trial judge and the prosecutor who ignored basic rules of justice.

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when a guilty man gets off because of a legal error.. that is in my book.. a technicality... and he was guilty the moment he brought a 16 round magazine into NJ.. trust me... not trying to beat this to death..

The way I understand the law, one is presumed innocent until guilt is proven beyond a reasonable doubt (in criminal matters). While one may be actually guilty, guilt must be proven IAW proper legal process to establish a legal judgement of guilt.

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this will be my last attempt..

 

a man brings illegal high capacity magazines into NJ and gets off because they dont "prove" they are hi cap.. and we all chalk that up to the proper process...

 

a child rapists is proven to have molested multiple children.. but because the officer neglects to include one simple fact.. the charges are thrown out because it is not "proven"

my guess is your reaction would be entirely different..

 

I am for a fair process.. but when someone is released on a technicality.. when all logic points to guilt.. that I am not a fan of..

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Let's call a spade a spade here. If I see someone murder someone else, did the murder not happen? Does the actor need to be found guilty for a crime to have occurred?

 

The FIX was in. They found an out to save face. It happens ALL the time, when needed.

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this will be my last attempt..

 

a man brings illegal high capacity magazines into NJ and gets off because they dont "prove" they are hi cap.. and we all chalk that up to the proper process...

 

a child rapists is proven to have molested multiple children.. but because the officer neglects to include one simple fact.. the charges are thrown out because it is not "proven"

my guess is your reaction would be entirely different..

 

I am for a fair process.. but when someone is released on a technicality.. when all logic points to guilt.. that I am not a fan of..

Let's call a spade a spade here. If I see someone murder someone else, did the murder not happen? Does the actor need to be found guilty for a crime to have occurred?

 

The FIX was in. They found an out to save face. It happens ALL the time, when needed.

Agreed. He's not really helping the cause, either, by knowingly breaking the law. He knew that they held more than fifteen rounds, because the two magazines were loaded with sixteen each. I would have preferred that this one-time defense was burnt on an innocent purchaser of 15/30 or 15/20 magazines, that just so happen to accommodate and feed sixteen rounds.

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The state did not demonstrate in open court or by expert testimony that the magazines in question were capable of feeding rounds. Therefore, the state failed to prove that the magazines were high capacity by the letter of the law. As it happens, I once overstuffed a magazine by one round (it was a ten-round magazine, so it doesn't matter). The magazine did, in fact, fail to feed with the extra round in it. I would sure as hell hope if I did that to a 15-round magazine that the prosecution be required not only to load it to 16 rounds, but that they demonstrate that the magazine would then feed.

 

Also, see the last footnote, the procedural errors on the state's part would not prevent them from retrying Brian Aitken and demonstrating that the magazines in fact did feed; the Governor's commutation does that (effectively). So, he didn't "get off" on a technicality, he "got off" because the governor commuted his sentence. Otherwise the state could effectively retry him and nail him for, what, seven years or so on the magazine charge? (Leaving out the handgun possession issue - that could go either way based on the jury).

 

As it happens, while the acquittal on two of the three charges is probably a relief to Mr. Aitken, he is still a convicted felon on charge 3 (the possession of hollowpoints outside an exemption), and since he cannot appeal the charges he is acquitted of, they can't be struck down by a different court - preserving the laws themselves.

 

These procedural rules don't exist to protect the obviously guilty; they exist to prevent the state from trumping up charges on insufficient evidence. What if the cop who can't get you on "transport" decides to get you on magazines because your converted mags say "20 rnds" or "30 rnds"? Once in place, they protect everyone. It is a bedrock principle of anglo-american common law that it is better for one guilty man to go free than 10 innocents be punished (Blackstone). In this case, Brain Aitken is that "guilty" man. But this same decision will protect the posessor of a converted magazine in case someone manages to jam an extra round into it, as long as it doesn't feed.

 

(Yes, I believe that if the state retried him, they could demonstrate that the magazine was capable of feeding 16 rounds and he would be convicted of same. They should either have used a qualified expert or test-fired the magazines the first time around and saved some embarrassment. As for the "innocent purchaser", well, test the magazines before buying; or as conveniently as possible afterwards.)

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[snip don't want to quote too much]

 

(Yes, I believe that if the state retried him, they could demonstrate that the magazine was capable of feeding 16 rounds and he would be convicted of same. They should either have used a qualified expert or test-fired the magazines the first time around and saved some embarrassment. As for the "innocent purchaser", well, test the magazines before buying; or as conveniently as possible afterwards.)

No argument from me, ianargent.

 

I mentioned the innocent purchaser, because I believe there are many honest people out there who would 1) trust a manufacturer/dealer who represents that the magazines are, in fact, fifteen round magazines, and 2) would not even attempt to fit sixteen rounds for fear of breaking the law. That's the kind of person that deserves Brian Aitken's commutation and acquittal. To be clear, I'm not talking about due process. I think the Appellate Division's holding on the magazine charge is sound. Rather, I am simply talking about an overall just outcome. The above hypothetical person (akin to the negligence standard's "reasonable person", I would argue), if tried by the prosecution after the Aitken case, would surely be faced with an expert and ultimately be convicted.

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That's the other thing, everyone assumes that Mr. Aitken got the only chance of this defense working. Which, since the appellate decision referenced a case where an expert witness certified that a magazine was a high-cap one, is probably a faulty assumption. The failure to prove the magazine fed ammo likely was an oversight on the prosecution's part. And the judge siezed on it. A sound ruling on the facts, but a really wonky set of fact. All that would have upset the apple cart would have been if the cops had taken the time to run a magazine through the gun at some point - then the police witness could have testified to the fact that the magazine fed the gun. Make no mistake, I don't believe this was a pro-gun decision. The judge took the opportunity to rule out of play the two charges that are least likely to survive the federal judiciary. I honestly don't think the hollowpoint appeal will succeed at the federal level, not with this generation's judiciary. I'm open to being surprised (I wouldn't have expected Heller to succeed when it was still Parker vs DC, either).

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