Brian Aitken in New Jersey prison for legal firearms - Page 3

MLeake · December 7, 2010, 07:52 AM

... it took officers two hours to unload the car to the point they could access the unloaded weapons, after Aitken told them where they were.

Sounds like his vehicle was still loaded to the gills.

Also sounds like he could not have had criminal intent, since he obviously had no immediate access himself. Technical violations of the law shouldn't draw the same sentences as violent crimes or deliberate crimes, even if he was guilty.

Frankly, I hope he wins his appeal.

I also hope NJ voters eventually come to their collective senses (not that some haven't, but obviously not enough have to get rid of some really bad laws).

dlb435 · December 7, 2010, 08:55 AM

From Al Norris:
"I think you misunderstood, dlb435. When I wrote, "Aitkins should have been allowed to present evidence of the exception." - As in, present evidence at the trial, not at the closing arguments. No one presents "evidence" in opening or closing arguments.

Because Aitkins attorney says that they did this, then it was most likely rebutted by the prosecution. If this is so, then the Judge, by failing to include the exception to the law in his jury instructions, committed a reversible error."

That's the point. The attornies CAN NOT read the law into the record at the trial. It cannot be entered as part of the evidnce or in closing argumnets. That is the job of the judge. The only way to get this into the record would have been to get the police to testify as to what they told him before he moved to NJ. I went to the NJ state police site. They don't give a straight answer and tell you to consult a lawyer. They clearly state that they will not give legal advice.
As to the exception in the law, this could get tricky. If he had gone straight to his new residence and un-packed his car he would have been fine. He chose to stop at his ex-wifes first. That may have nullified the exception to the law.
This is a little off topic but I remember when a famous singer was caught with an illegal handgun in New York. It had been a present from some friends. The district attorney choose not to prosecute and the whole thing was dropped. Too bad Aitkins didn't get a break from the NJ district attornny.

Al Norris · December 7, 2010, 09:23 AM

Quote:

Originally Posted by publius42

If the judge bought the prosecution's rebuttal, then not including that part of the law was not an error.

This was a jury trial, not a bench trial. The jury is the finder of fact, therefore what matters is if the jury "bought" the prosecution's rebuttal, not the judge.

Regardless, we really don't know on what grounds this might be appealed. If at all, what with the talk of going the clemency/pardon route.

Quote:

Originally Posted by MLeake

Also sounds like he could not have had criminal intent, since he obviously had no immediate access himself.

Once again, this highlights why mala prohibita laws are intrinsically bad. Intent (mens rea) seldom enters into the equation.

Here, the law strips the defendant of his innocence, in that the defendant must prove an exception to the law, in order to be found not guilty. Add to this, that the law in question treats the offense as if it was on the same order as the violent crime of armed robbery.

Al Norris · December 7, 2010, 09:36 AM

Quote:

Originally Posted by dlb435

The attornies [sic] CAN NOT read the law into the record at the trial.

If a criminal law has an exception, that is an affirmative defense. Using any exception, as a defense to the criminal act, is not "reading the law into the record."

This is no difference in saying that you are charged with manslaughter and your defense is in fact self-defense. Your are saying that the defense cannot use this exception, nor will the judge read the exception to the jury.

Such a defense, an exception to the law, is a "fact" of the case. The jury is the trier of fact, not the judge.

dlb435 · December 7, 2010, 03:11 PM

It will be interesting to see how this plays out in the courts. I'm going to keep an eye on this case and see what happens.
I just hope Mr. Aitken doesn't have to spend too much time in jail. This kind of thing can ruin his life for a long time.

Trip20 · December 21, 2010, 12:21 AM

Looks like Mr. Aitken's sentence was commuted by Gov. Chris Christie from 7 years down to time served.

Brit · December 21, 2010, 12:44 AM

Terrific! My Wifes Step Mum lives in NJ, I refuse to visit! She is very welcome to the free State of Florida, and does.

ncpatriot · December 21, 2010, 01:37 AM

I wonder if Institute for Justice could help him out? They have done a lot of work for liberty on many fronts such as eminent domain abuse, asset forfeiture, etc. I haven't heard of them doing a 2A case but they have done some good work elsewhere.

alloy · December 21, 2010, 06:10 AM

Quote:

Looks like Mr. Aitken's sentence was commuted by Gov. Chris Christie from 7 years down to time served.

Good news.

publius42 · December 21, 2010, 09:14 AM

That sounds like sort of good news to me. I thought he was asking for a pardon.

A commuted sentence would mean he still has a felony conviction for this BS on his record, right?

**Spats McGee** · December 21, 2010, 09:36 AM

I'm not an expert on commutations and pardons, but I believe it does.

DogoDon · December 21, 2010, 09:49 AM

That's right. Commutation of a sentence merely lessens the penalty, but the conviction remains on his record.

A pardon, on the other hand, would have wiped the conviction off his record.

DD

CowTowner · December 21, 2010, 11:14 AM

Seems to me an appeal of the conviction through the court system is still warranted. Otherwise the loss of his rights stays with him.

**Aguila Blanca** · December 21, 2010, 01:23 PM

Yep, he's out of jail but he's still a convicted felon.

NJ Governor Christie is an unconscionable wimp. He should have granted a full pardon.

dlb435 · December 21, 2010, 03:57 PM

Most governors don't hand out pardons until their last day in office. Mr. Aitken needs to be sure he's on the list.

csmsss · December 21, 2010, 04:12 PM

Even if not a full pardon, at least Aitken can contine his appeal as a free man.

Al Norris · December 21, 2010, 05:37 PM

Here's the thing that some of you may not be thinking about.

With a commutation of sentence, Aitkins can still appeal to overturn the conviction (and not being behind bars means he can freely help in the appeal, moreso than locked up), whereas with a pardon, he cannot.

Should he lose the appeal, then he can ask for a pardon.

The point, of course, is that the appeal should ~~will~~ be based upon 2A rights and not exceptions to a set of laws that don't recognize self-defense as a fundamental right.

This could operate in tandem to Muller v. Maenz and its facial challenge to N.J. carry law.

ncpatriot · December 21, 2010, 11:35 PM

Commutation or pardon still bothers me; granted it is a good step. But this man committed no crime. The only right solution is that his conviction is overturned and his guns returned to him. Commutation or pardon can be a good thing, say for a convicted criminal that shows remorse, turns around, lives a better life, etc.

I sent a fax to Institute for Justice today, asking if they work on firearms cases.

Also, mommas don't call the police on your sons like that. I'm sure the mom meant well, but if the son was suicidal, he would have done himself in by 1 method or another anyway. The scenario that happened would also not help a suicidal person "come back". If anything, would push him closer to the edge. Lots of people say stuff about how bad life is, etc. at some hard moments. Now the police that were involved will always see him with a certain stigma.

johnbt · December 22, 2010, 01:40 PM

He did commit a crime. The jury said guilty and it's been recorded. Did you miss that part of the story?

John

silentargus · December 22, 2010, 11:33 PM

I think that malicious judicial misconduct, being a violation of the defendant's right to due process, rather invalidates the conviction. Whether or not he had a fair trial is not in question; he didn't. The only thing that remains to be seen is whether or not the tainted conviction will filter up through the bowels of the NJ courts and be overturned, as it ought to be.

Sadly, commutation is probably all the Governor could get away with. He's been taking a pretty hard line (well, as hard as it gets in NJ) and doing a pretty good job of ticking off the powers-that-be in the NJ Legislature; issuing a pardon now when those are traditionally granted at the end of a term would cause quite a stir. It's not right that a man should get screwed in the name of political expedience, but that's the game Christie's playing. For what it's worth, I think the guy's doing about as well as could be expected under the circumstances and is probably the best Governor NJ has had in decades. I don't agree with him on everything, and I wish he'd be a bit more aggressive in some areas, but it's night and day compared to Corzine or McGreevey. Either of those twerps would have let Mr. Aitken rot. Political rant over.

Eghad · December 23, 2010, 09:00 AM

He got a jury trial of his peers. How can that not be getting due process? I don't agree with the verdict but that does not change the fact that he had a jury trial. His sentence got commuted and as pointed out he can still appeal his case from outside a prison cell.

ncpatriot · December 23, 2010, 09:18 AM

Good point Silentargus, I didn't think of that. But I sure hope someone helps this man fight for justice. I sent a fax to Institute for Justice to see if they will take on firearms cases. Eminent domain abuse & business license abuse are largely the kinds of cases they do & seem to do a good job on them. National Association for Gun Rights says it sent thousands of petitions to NJ on his behalf.

I'd nearly forgotten this, but I saw a guy from NJ post on another forum awhile back. He almost apologized for being from there. I replied that he couldn't help what his politicians did, etc. and that there must be a few people there with the spirit of their forefathers from NJ who signed the Declaration of Independence. NJ citizens fought King George with the rest of our forefathers. I suspect it started decades ago that their politicians 1st turned against liberty & started chipping away at it. Started the frog in cold water, then slowly heated it up to boiling. Their politicians, like politicos everywhere, need to see angry voters on the doorstep to keep their thinking straight.

Does NJ have an active state level 2A group? That would be a big step in the right direction. If they don't have one, maybe a small group could start one. I'm sure any group in other states would be glad to help them get started. A handful of guys who are retired & have time to monitor legislative bodies & harass politicians would be the ideal core group.

MLeake · December 23, 2010, 09:37 AM

Eghad and johnbt, the reason most of us think the conviction should be nullified is because the trial judge refused to let the jury be informed of points of NJ law regarding possession of weapons during a move. Had the jury been so informed, odds are the only conviction would have been over the hi-cap magazines (which are legal in around 90% of the country).

publius42 · December 23, 2010, 11:24 AM

Quote:

He got a jury trial of his peers. How can that not be getting due process?

Why do we have appeals courts? Just because a judge and jury sat in a room and did something does not mean everything was kosher.

silentargus · December 23, 2010, 12:31 PM

Is there any particular mention of exactly how "high capacity" his mags were? NJ law regarding magazine capacity is not as restrictive as CA's is; you can have up to 15rds in NJ. I'm assuming that he was caught with something bigger than that if he was charged with possession, but I wouldn't trust the media not to report anything over 10rds as "high capacity." If he was caught with them, yeah, it's a crime... a stupid crime, but a crime.

Plus, since when is moving your possessions from one place to another not "moving?" If he was storing the guns at his mother's place before the move, I fail to see how he'd have any choice but to go and pick them up if the place he was moving to was somewhere else. I'm well aware of NJ's laws against taking guns anywhere but between store, home, the range, or the gunsmith- those have been an inconvenience to me for as long as I've owned guns. However, I was not aware that it was illegal to transport guns from a place where they may legally be stored (in this case with family) to another place where you live.

Am I missing something here? Were the guns already in the car and he just stopped at mom's place to say hello? That would be illegal. Otherwise, does this mean it's illegal to, say, put your guns in a storage unit and later retrieve them? And wouldn't federal law cover you in this case- for moving guns between two places where it is legal to possess them?

December 7, 2010, 07:52 AM	#51
MLeake Senior Member Join Date: November 15, 2007 Location: Outside KC, MO Posts: 10,128	Except for the part where.... ... it took officers two hours to unload the car to the point they could access the unloaded weapons, after Aitken told them where they were. Sounds like his vehicle was still loaded to the gills. Also sounds like he could not have had criminal intent, since he obviously had no immediate access himself. Technical violations of the law shouldn't draw the same sentences as violent crimes or deliberate crimes, even if he was guilty. Frankly, I hope he wins his appeal. I also hope NJ voters eventually come to their collective senses (not that some haven't, but obviously not enough have to get rid of some really bad laws).

December 7, 2010, 08:55 AM	#52
dlb435 Senior Member Join Date: January 26, 2009 Posts: 654	From Al Norris: "I think you misunderstood, dlb435. When I wrote, "Aitkins should have been allowed to present evidence of the exception." - As in, present evidence at the trial, not at the closing arguments. No one presents "evidence" in opening or closing arguments. Because Aitkins attorney says that they did this, then it was most likely rebutted by the prosecution. If this is so, then the Judge, by failing to include the exception to the law in his jury instructions, committed a reversible error." That's the point. The attornies CAN NOT read the law into the record at the trial. It cannot be entered as part of the evidnce or in closing argumnets. That is the job of the judge. The only way to get this into the record would have been to get the police to testify as to what they told him before he moved to NJ. I went to the NJ state police site. They don't give a straight answer and tell you to consult a lawyer. They clearly state that they will not give legal advice. As to the exception in the law, this could get tricky. If he had gone straight to his new residence and un-packed his car he would have been fine. He chose to stop at his ex-wifes first. That may have nullified the exception to the law. This is a little off topic but I remember when a famous singer was caught with an illegal handgun in New York. It had been a present from some friends. The district attorney choose not to prosecute and the whole thing was dropped. Too bad Aitkins didn't get a break from the NJ district attornny. Last edited by dlb435; December 7, 2010 at 09:04 AM.

December 21, 2010, 01:37 AM	#58
ncpatriot Senior Member Join Date: March 4, 2009 Location: Durham, NC Posts: 371	I wonder if Institute for Justice could help him out? They have done a lot of work for liberty on many fronts such as eminent domain abuse, asset forfeiture, etc. I haven't heard of them doing a 2A case but they have done some good work elsewhere. __________________ Remember the American heroes of Flight 93.

December 21, 2010, 11:14 AM	#63
CowTowner Senior Member Join Date: October 17, 2007 Location: Cowtown of course! Posts: 1,747	Seems to me an appeal of the conviction through the court system is still warranted. Otherwise the loss of his rights stays with him. __________________ NRA Chief Range Safety Officer, Home Firearms Safety, Pistol and Rifle Instructor *“Today, we need a nation of Minutemen, citizens who are not only prepared to take arms, but citizens who regard the preservation of freedom as the basic purpose of their daily life......”* President John F. Kennedy

December 21, 2010, 11:35 PM	#68
ncpatriot Senior Member Join Date: March 4, 2009 Location: Durham, NC Posts: 371	Commutation or pardon still bothers me; granted it is a good step. But this man committed no crime. The only right solution is that his conviction is overturned and his guns returned to him. Commutation or pardon can be a good thing, say for a convicted criminal that shows remorse, turns around, lives a better life, etc. I sent a fax to Institute for Justice today, asking if they work on firearms cases. Also, mommas don't call the police on your sons like that. I'm sure the mom meant well, but if the son was suicidal, he would have done himself in by 1 method or another anyway. The scenario that happened would also not help a suicidal person "come back". If anything, would push him closer to the edge. Lots of people say stuff about how bad life is, etc. at some hard moments. Now the police that were involved will always see him with a certain stigma. __________________ Remember the American heroes of Flight 93.

December 7, 2010, 03:11 PM	#55
dlb435 Senior Member Join Date: January 26, 2009 Posts: 654	It will be interesting to see how this plays out in the courts. I'm going to keep an eye on this case and see what happens. I just hope Mr. Aitken doesn't have to spend too much time in jail. This kind of thing can ruin his life for a long time.

December 21, 2010, 12:21 AM	#56
Trip20 Senior Member Join Date: March 21, 2005 Posts: 2,181	Looks like Mr. Aitken's sentence was commuted by Gov. Chris Christie from 7 years down to time served.

December 21, 2010, 12:44 AM	#57
Brit Senior Member Join Date: January 29, 2005 Location: Orlando FL Posts: 1,934	Terrific! My Wifes Step Mum lives in NJ, I refuse to visit! She is very welcome to the free State of Florida, and does.

December 21, 2010, 09:14 AM	#60
publius42 Senior Member Join Date: February 9, 2002 Posts: 1,936	That sounds like sort of good news to me. I thought he was asking for a pardon. A commuted sentence would mean he still has a felony conviction for this BS on his record, right?

December 21, 2010, 09:36 AM	#61
Spats McGee Staff Join Date: July 28, 2010 Location: Arkansas Posts: 8,821	I'm not an expert on commutations and pardons, but I believe it does.

December 21, 2010, 09:49 AM	#62
DogoDon Senior Member Join Date: January 8, 2010 Location: Charlotte, NC Posts: 368	That's right. Commutation of a sentence merely lessens the penalty, but the conviction remains on his record. A pardon, on the other hand, would have wiped the conviction off his record. DD

December 21, 2010, 01:23 PM	#64
Aguila Blanca Staff Join Date: September 25, 2008 Location: CONUS Posts: 18,467	Yep, he's out of jail but he's still a convicted felon. NJ Governor Christie is an unconscionable wimp. He should have granted a full pardon.

December 21, 2010, 03:57 PM	#65
dlb435 Senior Member Join Date: January 26, 2009 Posts: 654	Most governors don't hand out pardons until their last day in office. Mr. Aitken needs to be sure he's on the list.

December 21, 2010, 04:12 PM	#66
csmsss Senior Member Join Date: October 24, 2008 Location: Orange, TX Posts: 3,078	Even if not a full pardon, at least Aitken can contine his appeal as a free man.

December 21, 2010, 05:37 PM	#67
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	Here's the thing that some of you may not be thinking about. With a commutation of sentence, Aitkins can still appeal to overturn the conviction (and not being behind bars means he can freely help in the appeal, moreso than locked up), whereas with a pardon, he cannot. Should he lose the appeal, then he can ask for a pardon. The point, of course, is that the appeal should ~~will~~ be based upon 2A rights and not exceptions to a set of laws that don't recognize self-defense as a fundamental right. This could operate in tandem to Muller v. Maenz and its facial challenge to N.J. carry law.

December 22, 2010, 01:40 PM	#69
johnbt Senior Member Join Date: December 6, 1999 Location: Richmond, Virginia USA Posts: 6,004	He did commit a crime. The jury said guilty and it's been recorded. Did you miss that part of the story? John

December 22, 2010, 11:33 PM	#70
silentargus Senior Member Join Date: August 17, 2010 Posts: 146	I think that malicious judicial misconduct, being a violation of the defendant's right to due process, rather invalidates the conviction. Whether or not he had a fair trial is not in question; he didn't. The only thing that remains to be seen is whether or not the tainted conviction will filter up through the bowels of the NJ courts and be overturned, as it ought to be. Sadly, commutation is probably all the Governor could get away with. He's been taking a pretty hard line (well, as hard as it gets in NJ) and doing a pretty good job of ticking off the powers-that-be in the NJ Legislature; issuing a pardon now when those are traditionally granted at the end of a term would cause quite a stir. It's not right that a man should get screwed in the name of political expedience, but that's the game Christie's playing. For what it's worth, I think the guy's doing about as well as could be expected under the circumstances and is probably the best Governor NJ has had in decades. I don't agree with him on everything, and I wish he'd be a bit more aggressive in some areas, but it's night and day compared to Corzine or McGreevey. Either of those twerps would have let Mr. Aitken rot. Political rant over.

December 23, 2010, 09:00 AM	#71
Eghad Senior Member Join Date: May 28, 2005 Location: Texas Posts: 6,231	He got a jury trial of his peers. How can that not be getting due process? I don't agree with the verdict but that does not change the fact that he had a jury trial. His sentence got commuted and as pointed out he can still appeal his case from outside a prison cell. __________________ Have a nice day at the range NRA Life Member

December 23, 2010, 09:18 AM	#72
ncpatriot Senior Member Join Date: March 4, 2009 Location: Durham, NC Posts: 371	Good point Silentargus, I didn't think of that. But I sure hope someone helps this man fight for justice. I sent a fax to Institute for Justice to see if they will take on firearms cases. Eminent domain abuse & business license abuse are largely the kinds of cases they do & seem to do a good job on them. National Association for Gun Rights says it sent thousands of petitions to NJ on his behalf. I'd nearly forgotten this, but I saw a guy from NJ post on another forum awhile back. He almost apologized for being from there. I replied that he couldn't help what his politicians did, etc. and that there must be a few people there with the spirit of their forefathers from NJ who signed the Declaration of Independence. NJ citizens fought King George with the rest of our forefathers. I suspect it started decades ago that their politicians 1st turned against liberty & started chipping away at it. Started the frog in cold water, then slowly heated it up to boiling. Their politicians, like politicos everywhere, need to see angry voters on the doorstep to keep their thinking straight. Does NJ have an active state level 2A group? That would be a big step in the right direction. If they don't have one, maybe a small group could start one. I'm sure any group in other states would be glad to help them get started. A handful of guys who are retired & have time to monitor legislative bodies & harass politicians would be the ideal core group. __________________ Remember the American heroes of Flight 93.

December 23, 2010, 09:37 AM	#73
MLeake Senior Member Join Date: November 15, 2007 Location: Outside KC, MO Posts: 10,128	Eghad and johnbt, the reason most of us think the conviction should be nullified is because the trial judge refused to let the jury be informed of points of NJ law regarding possession of weapons during a move. Had the jury been so informed, odds are the only conviction would have been over the hi-cap magazines (which are legal in around 90% of the country).

December 23, 2010, 12:31 PM	#75
silentargus Senior Member Join Date: August 17, 2010 Posts: 146	Is there any particular mention of exactly how "high capacity" his mags were? NJ law regarding magazine capacity is not as restrictive as CA's is; you can have up to 15rds in NJ. I'm assuming that he was caught with something bigger than that if he was charged with possession, but I wouldn't trust the media not to report anything over 10rds as "high capacity." If he was caught with them, yeah, it's a crime... a stupid crime, but a crime. Plus, since when is moving your possessions from one place to another not "moving?" If he was storing the guns at his mother's place before the move, I fail to see how he'd have any choice but to go and pick them up if the place he was moving to was somewhere else. I'm well aware of NJ's laws against taking guns anywhere but between store, home, the range, or the gunsmith- those have been an inconvenience to me for as long as I've owned guns. However, I was not aware that it was illegal to transport guns from a place where they may legally be stored (in this case with family) to another place where you live. Am I missing something here? Were the guns already in the car and he just stopped at mom's place to say hello? That would be illegal. Otherwise, does this mean it's illegal to, say, put your guns in a storage unit and later retrieve them? And wouldn't federal law cover you in this case- for moving guns between two places where it is legal to possess them?