Brian Aitken in New Jersey prison for legal firearms

Publius, I'm not denying that point. What I am saying is that there may well have been some justification in concluding that Aitkins was not moving. Regardless, if Aitkins was in fact still moving, Aitkins should have been allowed to present evidence of the exception.

There's an awful lot to this case that we just don't know. Take the initial search, for example. Was it performed with Aitkins voluntary consent? If not, what was the basis for probable cause?
 
Not saying he was ok in either not knowing the law or pushing the limit of what he did know.....but 7 years for a non-violent offense when the guns were in the trunk, and the offender doesn't have some history of criminality....seems excessive.

How bout 2 years probation w/mental evaluation, a big fine, loss of firearm rights in the state, 200 hours community service and 30 days in jail?

7 years? It just seems too much, just an observation....bordering on Draconian.
 
Alloy, yet that remedy would still make him prohibited person (for life), according to Fed law - We have to assume 2 years probation is in lieu of 2 years incarceration.
 
Yes, I'm sure I didn't state the best alternatives...all or in part.
I just feel the judge should have had alternatives, or combinations of alternatives...be they right or wrong....to 7 years.
Saw it on the news last night, and it strikes me as a sentence reserved for a multiple or perhaps violent offender worthy of throwing the book at.
Maybe some facts are missing, maybe it just makes me feel sick to think the country has pockets acting this way....with me being from the great state of Virginia....I'll count my blessings.
 
Why was this issue not considered during trial, I wonder?
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+1
Good question. Sounds like the guy had a sorry lawyer. The ball got rolling when Aitken's mom called the cops: Then it went faster, faster and faster until Aitken landed up in prison.
 
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I mean as much as I hate to see this guy imprisoned for this you should never live in a state like New Jersey. Really the difference between living in a normal state in regards to gun laws and the Northeast is just incredible. People in the North fear firearms more than anyone I have ever met and as far as I am concerned are a lost cause in regards to firearm education. As long as we can prevent them from imposing their will on the rest of us at the Federal level they can have their absurd laws and we can have our freedom to choose and live as we please.
 
From Al Norris
"Publius, I'm not denying that point. What I am saying is that there may well have been some justification in concluding that Aitkins was not moving. Regardless, if Aitkins was in fact still moving, Aitkins should have been allowed to present evidence of the exception."
Sorry, but you're wrong here. Any point of law that is to be given to the jury must come from the judge. Neither prosecution nor defense are allowed to instruct the jury in the law. If the judge gave bad or false information to the jury then there is a good chance the conviction will be overturned on appeal. Too bad most appeals take a year or more to work their way through the courts.
 
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.
 
Antipitas said:
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.
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(Sorry, I like your old name!)

If the judge bought the prosecution's rebuttal, then not including that part of the law was not an error. If the appeals court finds the rebuttal similarly convincing, Aitken is going to lose.

While I have some personal experience with taking months to move and some sympathy for a guy locked up for something that should not be a crime, I am having a bit of trouble completely buying his "I was moving" defense.
 
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).
 
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.
 
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publius42 said:
If the judge bought the prosecution's rebuttal, then not including that part of the law was not an error.
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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.

MLeake said:
Also sounds like he could not have had criminal intent, since he obviously had no immediate access himself.
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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.
 
dlb435 said:
The attornies [sic] CAN NOT read the law into the record at the trial.
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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.
 
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.
 
Terrific! My Wifes Step Mum lives in NJ, I refuse to visit! She is very welcome to the free State of Florida, and does.
 
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.
 
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?
 
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