Federal District Judge rules those indicted for a felony may purchase firearms

If we as a society don’t believe in the sanctity of “innocent until proven guilty,” then we are doomed. And it appears that the vast majority of posters in this thread are willing to convict and behead upon allegation. That is unfortunate. There are only two viable criminal defense strategies in America. The first is “I didn’t do it,” which can be successful, but the accused generally has something less than plausible deniability.

The second, and most successful, is “You can’t prove it . . . “ That is how lawyers make their money. And every poster here would love to have that consideration . . .
 
I've heard of bad attitudes from US court systems and prosecutors, insomuch "throwing charges at people isn't that bad, they are assumed innocent until proven guilty anyway" or "its the adveserial system, I can lob bad charges and it is up to the accused and the system to right my wrongs".

Oddly, I've worked in the system since 1979 and never heard that from prosecutors.

So; here are the protections. First, the police can't charge without meeting the standard of 'probable cause;' courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search). If there is no probable cause, no warrant will be issued, and if there was a warrantless arrest (most are), and either the magistrate or a prosecutor finds the arrest lacked probable cause, the case will be dismissed and the arrestee discharged. Cops HATE having arrestees discharged without charges, as now they face complaints, disciplinary action, or a civil suit, so arbitrary arrest is seldom a good strategy.

The first judge to see the affidavit for a search warrant or the 'probable cause statement (of an arrestee)' will look over the paper wortk for evidence of probable cause. No PC, no search or arrest warrant, and if an arrest, the defendant's case is dismissed without hearing. Judges dismiss such cases without interest in what the officer thinks.

If there is an arrest for a felony, the prosecutor ALSO looks for PC in the officer's forms. No PC means the case is dismissed by the prosecutor - to continue a PC-less case means the prosecutor can face internal discipline or even disbarment. Prosecutors routinely dismiss felonies for which they do not see adequate PC. They don't care what the arresting officer thinks.

If the jurisdiction requires a grand jury for charging defendants or uses instead preliminary hearing, a judge oversees the grand jury's decision (from evidence presented solely by the prosecutor) and can reject their decision if he/she doesn't agree there is PC. In a preliminary hearing, there is an adversarial hearing between the prosecution and defense (the accused has a right to a lawyer); if the judge doesn't find PC, the case is dismissed. Judges don't care if the prosecutor gets miffed. I've seen one double murder dismissed at prelim.

Next there will be pre-trial motions hearings, wherein PC is again contested between the prosecution and defense - some cases are dismissed here as well. Judges get paid whether they continue or dismiss charges or motions.

Finally, the pre-trial portions of the case are over. If the case has survived this far, it is really likely the defendant will be convicted. If one pleads guilty, pinishment is usually less than if the defendant is found guilty - a defense attorney who doesn't explain the strength of the evidence and likely outcome with the client is guilty of malpractice. Most choose to plead guilty at this point - remember, the defendant knows whether or not he/she committed the crime.

The system very much works within the spirit of Blackstone's ratio - ‘Better that ten guilty persons escape than that one innocent suffer’: William Blackstone, Commentaries 358. The same principle occurs in Genesis 18:23–32.

Is it a perfect system? Nope, but show me a more just one anywhere in the world. You see just as many (if not more) whining that the system is too lax as you see whining about how defendants' rights are being violated.

Whast you see on TV, the movies, and see bandied about on the internet is mostly just mule cookies.
 
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Out of the 8% of Federal charges dismissed, at what point are they dismissed? As you state, many prosecutors have their charges dismissed for lack of evidence. But, at what stage is it at in many situations? Also, aren't charges that are dismissed evidence of "throw it at the wall and see what sticks"?

Rates of dismissal shows that the system works at some point. It shows that it is certainly capable of doing the right thing despite attempts by prosecution. Some would argue that low dismissal rates could be collusion between judges and the prosecution, some would argue it is a sign of good prosecutors in the system for not lobbing charges carelessly. Some would argue that high rates of dismissal of charges shows the system works well, and rejects bad prosecution. It could be argued it is a sign that prosecutors can toss charges to see if they stick, and then it is up to the judges to keep them in their place.

In a vast country with vast peoples and many courts, and many judges, and many local governments and lawyers, the general average means little. You will get varying attitudes and results on the millions of cases, crimes, violations, and offenders, as well as the occasional innocent that gets involved.

Which also means final burden of proof for an indictment can change from situation, judge to judge, court to court. Threshold for "let a jury decide or let it go to court" is much lower than securing a conviction.

So, I suppose my attitude is a bit bad. But then again, I genuinely am old fashioned and believe in "guilty until proven innocent" is the proper attitude and take my shots at the other doctrine. I'm also pro government (in the meta, not always the specific) and have trust in police and the courts by nature.

But, let's examine the charges against Randy Weaver. Were they trying to nab a dastardly law breaking criminal who was dealing in sawed off shotguns? Or did they attempt to ring in a man, with the sole intent of threatening him with Federal gun charges, so they could turn him into an informant? I can appreciate the tactic, to some degree. But is this good faith prosecution?

If the government lobs charges against people to do the same, threaten them into compliance, or signing deals to become informants, with the intent to dismiss charges or plead them down for the sole sake of making them informants or leveraged, even if it can be justified as a tactic, is this good faith prosecution?

How many CI's are good natured people who turned away from crime to turn a new leaf and become better people and undo their past wrongs? How many are leveraged? Even if most are criminals caught in crime and are good cases of pressuring criminals to become informants, how many are Mr. Weaver?

As people are slowly losing faith in the system as time goes on, they will become more concerned about the possibility of one day becoming a target. How realistic this fear is, that is another matter. But the idea that one day a NORP who follows the law could be "squeezed" seems to grow, and with it the fear of bad faith prosecution, and the fear that indictments or red flag laws could be abused against them grows.

I agree with you, and we're more on the same page than you think. The Federal government is very careful to build cases, mostly goes after real criminals and bad actors, and the court results reflect a solid effort.

However, more and more pro government types are becoming a little bit more concerned that one day the tactics of the system may come to bear upon them.
 
The 8% referred to are Federal cases dismissed at trial.

Randy Weaver has been dead for a while since the incident took place 30 years ago. He had his criminal case dismissed at trial (after a grand jury agreed there was PC) except for his FTA, and won $3 million for the Fed abuse of his rights and those of his family. Do you suppose no one inside Fed LE learned anything from that?

I simply don't share any serious concern about the system.
 
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It's interesting how different states even handle gun right restoration for convicted felons. Apparently a handful restore rights after a period of time, while most require a pardon.

As someone who received a Pardon for a crime 22 years ago, I feel for those who did committed non violent crimes yet can't protect their self or family who have turned their life around.
 
Sorry to be a drag on system-bashing, but if you go to the trouble of getting indicted, your are going to be convicted more than 8 of 10 times.

Not a ham sandwich, it seems.

Not all of us went to a whole lot of trouble to get charged by a DA. Took me less than a minute to do what a judge end up saying I had every right to do. Montana seldom does actual indictments. you just get a initial appearance, where the charges are read and you can enter an initial plea and get bail. I was releases with minimal conditions and no bail. In my case I informed someone, who had repeatedly threatened my family, what would happen in no uncertain terms. I had already talked to the police about them and got the, there is nothing we can do until they actually do something line. My attorney argued with the prosecutor, to no avail, but the judge didn't even give her 5 minutes once he got my side of it a couple months later. Meanwhile I was not supposed to buy any guns.

My brother just needed a lying exwife who wanted a piece of property and an ambitious DA who didn't actually check the facts of her story until just a couple weeks before trial.

It gets me how some can be so gung ho to get the guilty 80% they don't mind a bit that the innocent 20% suffer.
 
The 8% referred to are Federal cases dismissed at trial.

Randy Weaver has been dead for a while since the incident took place 30 years ago. He had his criminal case dismissed at trial (after a grand jury agreed there was PC) except for his FTA, and won $3 million for the Fed abuse of his rights and those of his family. Do you suppose no one inside Fed LE learned anything from that?

Studying what the FBI did at Waco Texas less than a year later, I would say if they did learn they were slow learners.

Did they learn much there?

Maybe the ones who are in it to enforce the laws, the ones in it to make a name for themselves, not so much.
 
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My main point is, accusations and charges are themselves extremely serious. They carry a lot of weight. They must be taken with utmost seriousness.

The man most responsible to prevent and stop bad prosecution is the prosecution itself. Not the grand jury or judge (in places that do not have grand juries), and not the trial judge if there is an indictment. This is not to be lost in "zealous persecution". Charges are not to be minimized in their weight by "innocent until proven guilty". That he is most responsible for his powerful actions, and not an out of control beast who relies on grand juries to stop him when he over reaches or charges recklessly.

I simply feel that the new doctrine tends to protect the accused less, and minimizes the responsibility of accusation itself.

I have a strange feeling about some of the 8% dismissed charges, and those in local and state courts, that someone tried to push through a weak case through indictment, just hoping to pressure the accused into a plea bargain, with no real case to actually see through to trial.

But, the whole plea bargain issue is another topic, when I've already strayed enough.

The bigger the hammer I give you, the more careful you must be.
 
There is what is supposed to happen by law, and then what actually can happen. Not all police, judges and prosecutors operate how they are supposed to. Legally or morally. Some times people will be people, till you hire a lawyer and say no.
 
On purpose. The valid point was to use your rights.

Including the one to buy a gun, while under indictment?:D

One of the problems with using your rights is that many can not afford proper representation. The county my brother was in was taken to court by the ACLU because in something like 18 years NOBODY with a public defender was found innocent. Ended up the whole state had to change their method of public defenders.

My brothers legal bills were over $150,000. The jury wasn't out an hour before becoming dead locked 11-1 in his favor. Then it came out the one woman voting guilty had lied during jury selection. So it was either a hung jury or a mistrial. The prosecutor wanted to hold my brother over while he decided if he wanted to have a retrial, Judge said no, that is enough, he is walking out of court right now. Charges were later dismissed. His "Rights" cost him a year of his life and $150,000. BTW a deputy sheriff from another county testified in my brothers behalf about evidence the DA never bothered to look into. In fact a lot of the exwife's story was disproved in court. But, hey the county attorney wasn't looking for the truth, he was looking for a conviction and a gold star on his record.
 
A large percentage of the federal convictions are plea bargains, not trials. Most people do not have the money to mount a defense in federal court. The federal government has unlimited resources to try cases that few can match.

I was a witness in a federal homicide case in the mid 1990s. That case had two prosecutors assigned to it along with several FBI agents. The amount of time and money spent on preparation was enormous.

The first jury hung on the charge and it was scheduled for retrial and I was scheduled to testify again.

At the last minute the defendant accepted a plea to a lesser charge so I didn't have to testify.

Look at how many public officials in recent years have had to spend all of their accumulated savings defending themselves. Gen. Flynn is a good example of that.

If the DOJ had to try every case before a jury, the conviction rate would be much, much lower.

The 8% referred to are Federal cases dismissed at trial.
 
Steelsaver:

Sounds like your brother preserved his rights. By using the system, incidentally.

So; Robert MacAfee fired over 300 rounds at varied police agencies one fine Lordsburg morning (we made hours of video). He actually hit a couple of police cars, but no people. He was arrested when he ran out of ammo (including blacl powder and ball for his muzzleloader). After a few weeks in jail, a magistrate released him. He went down and bought a 12 gauge and more shells, and we had to use subterfuge to get him out of his house, where his new shotgun was, and arrest him again.

He wasn't convicted at that point - do you really believe he should have been able to buy and possess another firearm and ammo while awaiting trial? Just curious...
 
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A large percentage of the federal convictions are plea bargains, not trials. Most people do not have the money to mount a defense in federal court. The federal government has unlimited resources to try cases that few can match.

I was a witness in a federal homicide case in the mid 1990s. That case had two prosecutors assigned to it along with several FBI agents. The amount of time and money spent on preparation was enormous.

The first jury hung on the charge and it was scheduled for retrial and I was scheduled to testify again.

At the last minute the defendant accepted a plea to a lesser charge so I didn't have to testify.

Look at how many public officials in recent years have had to spend all of their accumulated savings defending themselves. Gen. Flynn is a good example of that.

If the DOJ had to try every case before a jury, the conviction rate would be much, much lower.
In most cases, there is truly overwhelming evidence of guilt - it makes no sense for defendants to go to trial in those circumstances, but instead to get the best deal they can with a plea.

Why do most Federal jury trials end in conviction now? https://www.uscourts.gov/sites/default/files/data_tables/jb_d4_0930.2018.pdf
 
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Unfortunately it takes more money than most have "to use your rights". If good private attorneys were freely available, that might have some validity. While there are public attorneys in some areas, they are usually overwhelmed and precious little resources

When prosecutors operate on the basis of ,well they can just hire an attorney and " use your rights ", it only makes fair and equal justice available to the rich and corrupt.
 
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