New Jersey Laws Hurt Gun Owners

Scott Bach is calling on the New Jersey Statehouse to do something about the state’s laws which entrap honest gun owners. Brian Aitken isn’t the first, not by far. He was just lucky enough to get caught up in the perfect storm. There are a lot of honest citizens walking around New Jersey with felony convictions because they ran afoul of a technicality. This, to me, is also a disturbing part:

But that never happened because the judge refused to let the jury consider the testimony or the exemptions themselves: He had predetermined that none applied. Counsel protested repeatedly, and the jury itself three times asked why it couldn’t consider the exemption, but the judge refused every request, eventually lecturing the jury: “The issue of whether the defendant was moving, and therefore entitled to an exemption from the permit requirement, is not before you.” Accordingly, the jury had no choice but to convict merely because there were firearms present.

Not long after the clemency, Mr. Aitken got an e-mail from one of the jurors:

“It is unbelievable how much power a judge possesses,” the e-mail read. “Why wasn’t the exception allowed by the judge??? Did he have something against you or your attorney???? Again, glad to see you are out.”

See, I don’t absolve the jury of blame in this injustice. To me they are just as guilty as the prosecutor and the judge. Ignorance of their civic duty is no excuse. The judge has exactly zero power to punish a jury for a verdict, even in New Jersey. If the jury felt that Aitken should not be convicted, they should have acquitted him despite the judges orders. The fact that a jury was willing to convict this guy shows just how far we’ve fallen in terms of our civic understanding of our relationship to our government, and the role juries play as a check on government officials.

32 thoughts on “New Jersey Laws Hurt Gun Owners”

  1. The history, principles, and proper application of jury nullification needs to be taught in every civics class throughout elementary and high school, and knowledge of it should be a requirement for jury duty, not reason for disqualification.

  2. In NJ, the prosecution can dismiss a certain number of jurors without any cause. I’m sure they simply dumped every potential juror who was a gun owner.

  3. I’m pretty sure that’s the case in most states – the prosecutor and the defense can dismiss a certain number without cause.

    IIRC, prosecutors also will quickly dismiss anyone who has ever heard of jury nullification.

  4. “To me they are just as guilty as the prosecutor and the judge. Ignorance of their civic duty is no excuse.”

    Except that most of the training on the law and it’s application that a jury receives is from the judge (or at least a judge). I’ve sat in potential jury pools for a couple different states and in both I received basic instruction on the civic role of juror from a judge. If you make it to a specific cases jury pool, you get more specific instruction related to that case and the law.

  5. Except that most of the training on the law and it’s application that a jury receives is from the judge (or at least a judge).

    I agree, to a point, but see my first comment on jury nullification. The fault goes far beyond the judge, and the information is out there for anyone to find.

    Also, the jury specifically asked for the information, and the judge refused to give it. To me, that would raise questions of why information the jury strongly believes is relevant is being withheld. I would most likely refuse to convict based solely on that.

  6. Agreed – the jury failed Brian Aitken. And, no doubt, the prosecution voir dired out the firearm owners; with such a small percentage of firearm owners in NJ, it’s likely they would have been considered “biased”. (Constitutional guarantee is for unbiased jury, not a jury of peers). That would have made appeal more difficult.

  7. Here’s the disturbing part:

    “However, his roommate testified that they had been sharing the Hoboken apartment since June 2008, and that he had seen the guns at the apartment in September 2008,” Bewley wrote. “[Aitken’s] mother testified that he had been living in Hoboken and working in New York City since June 2008. This incident occurred in January 2009.”

    Why on Earth would his own mother testify that he had already established residence at the new apartment months prior to the day her son claimed he was moving? What kind of idiot must his roommate be to basically testify against him by saying the exact same thing?

    With family and friends like these, who needs enemies?

  8. He was maintaining two residences? Not all that unusual (and, incidentally, one way that NJ law sucks – it doesn’t consider the possibility unless you OWN both residences)

  9. The problem is that no one teaches juries about their power, and there is very little out there in any of the documents provided to juries that detail their authority as well.

    And judges/lawyers LIKE IT that way.

  10. Was covered in one of my college frosh humanities classes. I don’t recall the class title, but it was one of my two required ethics classes as a CompSci major.

    And I do mean *covered*, the history of jury nullification in colonial times, &c.

  11. I agree with what Jake said at #1: Jury nullification needs to be taught in all of the schools, at every stage of the educational process. I never heard of jury nullification myself until I was out of college, and I was not so pleased when I came to the realization that not a word was mentioned about it back when I was grade school or high school.

    There is actually an organization known as the “Fully Informed Jury Association” now. The FIJA works to educate all citizens on their authority when they serve as jurors. Here’s their official website address:

    There are copyright-free brochures as .pdf downloads available there.

  12. “Schools should be doing it. To me that is the real disgrace.”

    If high schools taught it, most jurors would have forgotten it all by the time they were called. The average age in a jury room is around 40. I had six years between high school and when I was called to jury duty for the first time. I had 14 years since when I was called the last time. That is a lot of time to have to remember a high school civics less. And that isn’t even tackling the idea that jury systems change slightly from state to state so my current state is slightly different than where I grew up.

    If you want juries to actual know what they’re allowed to do, you need to require inclusion of specific topics within their on-site briefing. Anything else is pissing into the wind.

  13. I must have been very unlucky. I’ve been called to jury duty twice in my life, once for federal and once for the county. Of course, in neither case did I end up on a jury.

  14. As with everything the state doesn’t care for, they will simply point out that jury nullification has been used in the past to aquit racists involved in violent crimes against minorities. Therefore, jury nullification = racism.

    I would rather see the occaisonal race-based aquital than the many wrongful convictions we see today.

  15. I wouldn’t be so hard on the jury. The judge is the ultimate authority in the courtroom and the jury sparred over and over with the judge but were eventually bullied by him and given a bad instruction, which they were sworn to follow, subject potentially to contempt charges. Their attempts to get the judge to reconsider may be unprecedented, and will almost certainly help the appeal. There was not enough space in the Star-Ledger OpEd for the following more detailed account of what occurred, which I authored elsewhere:

    “Inexplicably, the judge precluded the jury from even considering the issue at all, so the jury was prevented from even asking the key factual question that needed to be answered to determine whether Aitken had a valid defense (ie., was he moving, or wasn’t he?). Not only that, but the judge affirmatively instructed the jury that they were not allowed to consider any exemptions because he (the judge) himself had determined as a matter of law and based on the evidence that no exemptions were applicable to Aitken’s circumstance.”

    “This was not inadvertent error on the part of the judge, but a repetitive intentional act; counsel protested repeatedly and vociferously, and the jury itself — confused by why it was allowed to hear testimony on a disputed factual issue and then denied the task of resolving that issue — asked three times for instruction from the judge about legal exemptions for handgun possession, including the moving exemption.The judge repeatedly and with increasing consternation refused to provide them with any instruction on ANY exemption, instead instructing that he had decided as a matter of law that ‘the evidence in this case does not justify my presenting to you for your consideration any of the exceptions or exemptions that are listed in the Statute.'”

    “On the jury’s third request, it asked the judge ‘Why did you make us aware at the start of the trial that the law allows a person to carry a weapon if the person is moving or going to a shooting range, and during the trial both the defense and prosecution presented testimony as to whether or not the defendant was in the process of moving, and then in your charge to us to deliberate we are not permitted to take into consideration whether or not we believe the defendant was moving?'”

    “The transcript shows that the jury was all but begging the court to consider the issue of whether defendant was in fact in the process of moving. Instead, the judge essentially appointed himself both judge and jury, unilaterally deciding that Aitken HAD no defenses, and precluding the jury from considering any. After the jury’s third request quoted above, the judge lectured the jury: ‘As I’ve already told you, based on all of the evidence in the case, I have ruled as a matter of law that the defendant is not entitled to have you consider whether he is entitled to an exemption from the permit requirement based on his argument that he was moving. That is a legal determination which is for me to make. I decide what charges go to the jury. I decide what defenses go to the jury, and I make those for purely legal reasons. The issue of whether the defendant was moving, and therefore entitled to an exemption from the permit requirement, is not before you.'”

  16. And prosecutors, like Patrick Frey over at Patterico’s Pontifications, hate jury nullification with a purple passion. They will deliberately threaten to indict jurors they catch doing it for charges like perjury, even if they ultimately will lose.

  17. mobo has the whole story right there. You guys are so busy fighting the good fight for your rights you lose sight of obvious things like that.

    Besides, when a jury is excused to begin their deliberations, they have very strict guidelines within which they must work. They can’t just do what you said and refuse to convict. They have to decide based on the evidence and the exact wording of the charges.

    “If the jury felt that Aitken should not be convicted, they should have acquitted him despite the judges orders.”

    That’s not true at all, Sebastian. That’s what you would like when the criminal is your poster boy, but in the real world it doesn’t work like that.

  18. @MikeB: Hve you been paying any attention at *all* to the mentions of the history of Jury Nullification? This isn’t a crackpot “fringed-flag=admiralty court” tax denier-type argument. The precedent goes back to before the founding of our country and is a basic part of the Common-Law idea of a jury.

    Juries, both petit and grand, are an important safeguard against governmental tyranny, and that they no longer sit in judgement of all facets of a case is a fairly major short-circuiting of an essential freedom.

  19. mikeb302000 the jury can come up with any verdict they want, and they aren’t bound by the Judge’s “instructions” at ALL.

  20. So what could the judge have done if the jury came back with a verdict of not guilty? Can a judge really hold a jury in contempt for a trial not coming out the way he thinks it should? He’ll, I’d let him try just for the nerve of the whole idea. But I’m probably not your prototypical juror. In fact, I think this whole thread would mean I never end up on a jury if they knew about it :)

  21. According to the Wiki article on Jury Nullification, Common Law traditions says the judge cannot hold a jury in contempt for a verdict.

    It’s a depressing article, actually, for the contempt that the modern judiciary shows for our Common Law traditions, really.

  22. Mikeb,

    There seem to be conflicting accounts in this case. On the one hand, both Aitken’s mother and roomate testified that he had been settled in the new apartment for months prior. Even more, the roomate said that he saw the guns in the new apartment.

    On the other hand, the arresting officer seems to have testified that it did appear that Aitken was in the process of moving. I did read somewhere (but can’t verify) that Aitken told the police that he had placed the guns in his trunk in order to keep them safe for a party he was having at the new apartment, indicating that he had already moved the guns before the incident.

    On balance, I would be inclined to believe that Aitken was in fact technically in violation of NJ law.

    That being said, the police testimony should have been enough to raise enough reasonable doubt that the judge should have allowed the jury to consider the moving exemption, IMO. As a juror, I would look for any reason to articulate my doubts to my fellow jurors. If that failed, I would proceed to stonewall and hang the jury, regardless of the law or judge’s instructions.

    You guys should all read Spooner’s An Essay on the Trial by Jury. You will learn a thing or two.

  23. He could have been residing at both his mother’s and the hoboken apt simultaneous. It took me several days to complete moving out of my apartment into my house; and I was under a lease expiration deadline. I don’t see any conflict in Aitken being able to claim that he is residing part time at the apartment and part time at his mother’s house. At which point, as long as he’s driving directly between the two, possession in travel between residences appears to be authorized.

  24. There you go, Ian. “He could have been residing at both his mother’s and the hoboken apt simultaneous.” Heck, he could have been living in his car when he fought with roomy and mommy both.

    He broke the law. Combined with the fact that he was involved in a bad visiting-rights dispute, makes him a dangerous suspect in my book.

    But you don’t care about any of that. You want to support gun rights, regardless of any and all circumstances.

  25. @MikeB – Exactly. He could have. That mean’s it’s up to the jury to decide the facts. Have you ever served on a New Jersey jury? I have. I particularly remember the instruction from the judge both time as to that. It is not up to the judge to decide the facts, it is up to the judge to decide the law, and advise the jury of same. The jury then must decide whether the particular facts means that the defendant broke the law.

    In particulary, I served on a jury for a case of what amounted to assault with a deadly weapon (I don’t recall the exact charges). The case was that of a brawl in the parking lot of a bar, where several of the participants on one side ended up fairly cut up. The defense was that the guy with the knife was acting in self-defense.

    We were presented the facts, and had to decide whether those facts fit into one of the “exemptions on use of deadly force” in NJ. I, in fact, requested that the judge provide us with the “exemptions” in that case. It came down to which side we believed in the fight, in the end. If it matters, I voted to convict, despite my opposition to the requirement to retreat before use of deadly force; the defendants could have and should have left rather than confront their eventual victims.

    By not allowing the jury to consider the moving exemption, the judge violated his role in the trial- that’s my position on this. It was not the judge’s place to determine whether or not the exemption applied – it was the jury’s.

    “He broke the law. Combined with the fact that he was involved in a bad visiting-rights dispute, makes him a dangerous suspect in my book.”

    WTH? He made every attempt to comply with the law – if he intended ill with his firearms they wouldn’t have been unloaded, in a locked case, wrapped in clothes, in a duffle bag, in the trunk of his car (in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’). As for the custody dispute, what of it? There was no restraining order (or he would have been out-and-out a prohibited person in NJ). No you’re the one grasping at straws. You don’t get to remove rights without a due process of law, and until then, he’s got rights.

  26. MikeB,

    Dude, are you serious? My parents went through a divorce when I was a kid, and the custody battle was pretty nasty. Does this mean that my father is a “dangerous” man, even though he doesn’t have a violent bone in his body? By what standard do you judge?

  27. mobo, yes, I’m serious. I judge by the strictest standard. How else could we keep guns out of the hands of the dangerous, but as of yet, law abiding guys. That’s why the “shall issue” business is wrong. Local law enforcement and mental health people should have something to say about all gun ownership.

  28. MikeB believes we should restrict people’s rights without due process of law; based on what they could do, not what they will do. And apparently believes that a gun death is somehow worse than any other, somehow. Because clearly nobody ever knifed or stabbed or beat or immolated their ex in a nasty divorce proceeding.

  29. MikeB,

    The problem with allowing local law enforcement and mental health “professionals” to decide is that the deck will always be stacked. Those jurisdictions that allow discretion almost always deny carry permits, and do everything in their power to make mere ownership of firearms as difficult and legally risky as possible. But you know this…. you are no dummy.

    The overwhelming majority of shootings in America (excluding suicides, of course) involve people who have a criminal history. If I had to guess from what my own eyes see, most of the victims are criminals as well. For the most part, these shooters perform an important service. One scumbag dies, and the other goes to prison. Good riddance!

    There are thousands of deaths every year involving drunk drivers. Do you propose that we require ALL cars have a breathalyzer ignition lock installed in order to operate on public roads?

  30. @Mobo points out something, but this needs to be emphasized. Allow anyone discretion as to whether someone should be permitted to carry or not, and that will set a very high bar, as they will be hammered if their decision ends up being faulty, but get no kudos for the vast majority of responsible gun owners who don’t commit crimes.

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