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INJUSTICE: REVERSED

 
 
Reply Mon 10 Jan, 2011 07:16 pm
By THE WASHINGTON TIMES

-

The Washington Times
Fourteen years after being forced to plead guilty
to the "crime" of owning a gun in Washington,
the blot against the record of Dave Magnus may
be cleared. On Thursday, the District of Columbia
Court of Appeals recognized that one should not
bear a stigma for the past possession of a firearm
in the nation's capital for the purpose of self-defense.
"A conviction for conduct that is not criminal,
but is instead constitutionally-protected, is the
ultimate miscarriage of justice,"
Judge Stephen H. Glickman
wrote in the 12-page decision.

Other officials failed to see matters with such clarity.
The U.S. Attorney's office drew fire from the
appellate judges during oral arguments in the
case for claiming, in essence, that there was no
realistic way such gun possession cases could be
reopened, despite the Supreme Court's landmark
2008 Heller decision rejecting the District's gun
ban as unconstitutional.

Mr. Magnus got into trouble in 1996 when police
raided the residence in which he rented a room.
Officers found .357 magnum and .45 caliber pistols
among his belongings, but prosecutors focused
on the misleading fact that drugs were found
elsewhere in the boarding house. Gaillard T. Hunt, Esq.
the attorney who represented Mr. Magnus on his
appeal, insists his client had nothing to do with
the drugs. "It was a pretty clear situation,"
Mr. Hunt explained to The Washington Times.
"The place was a house with several rooms rented
out in it and each room had its own lock on the door.
The marijuana and the large amounts of cash
belonged to someone else in someone else's room."

No drug charges stuck to Mr. Magnus, who never
has been convicted of a serious crime - aside from
bogus gun charges. Considering the state of the
law at the time, those particular charges were
serious enough. Mr. Magnus saw no alternative
but to plead guilty as part of a deal to avoid jail
time. Years later, he wanted his conviction erased
in light of the Heller decision, but a trial court
judge denied the request without a hearing on the
grounds that one purportedly waives his
constitutional rights by entering a guilty plea.
Under such a reading of the law, reversing a
conviction for a noncrime would be impossible.

Fortunately, the three-judge appellate panel
thought otherwise. It ordered the trial court to
reopen the case to determine whether the guns
in question were in any way used to further an
actual crime. Should the facts prove Mr. Magnus
was innocent, the trial court would have little
choice but to absolve the unjust past conviction.

The appellate court's well-balanced reasoning
reveals how far gun rights have advanced in the
past few years, thanks in large measure to the
National Rifle Association. The group's push in
courts and statehouses around the country has
brought us to the point where even past harms are
being redressed. More work needs to be done to
ensure law-abiding residents of the District can
own and carry guns without unnecessary red tape,
but last week's ruling fires a shot across the bow
of D.C. bureaucrats who need a reminder that
the Second Amendment is the law of the land.

[All emfasis has been added by David.]
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boomerang
 
  2  
Reply Mon 10 Jan, 2011 08:48 pm
I'm pretty ignorant of these laws but I'm curious so I'm going to ask what might be stupid questions ....

When he was arrested was owning a gun in DC against the law?

Or was it just against the law because there were also drugs in the house?

If the law says that if you plead guilty you're guilty, how does that change even if the law you were convicted of is overturned?

If I'm convicted under a law, and then the law changes, aren't I still guilty of disobeying the law at the time that the crime was committed?

Or, if the punishment for breaking that law changes, does my punishment change? I think they did that with the death penalty, didn't they? People who were sentenced to "death" had their sentences changed to "life".

I don't quite get how that works.



OmSigDAVID
 
  2  
Reply Tue 11 Jan, 2011 01:34 am
@boomerang,
boomerang wrote:
I'm pretty ignorant of these laws but I'm curious
so I'm going to ask what might be stupid questions ....
"The only dumb question is one that is not asked."


boomerang wrote:
When he was arrested was owning a gun in DC against the law?
Yes; unless it had been registered in the 1970s.
Civilian gun possession was effectively prohibited in Washington,
regardless of the 2nd Amendment of the Supreme Law of the Land.




boomerang wrote:
Or was it just against the law because there were also drugs in the house?
No. Thay just threw that in to blacken his name.
Prosecutors like to make defendants look bad.




boomerang wrote:
If the law says that if you plead guilty you're guilty,
how does that change even if the law you were convicted of is overturned?
His point is that he was convicted of a NON-crime and government disgraced itself
by turning against its Founding Instrument, betraying its Oath to support the Constitution.
He was calumniated by government for doing what government had a DUTY to protect him in doing it.
Its a betrayal like the babysitter raping the baby,
because the Constitution proclaims that this right
"shall not be infringed" and government did it anyway.

The 3 judge appellate court implicitly acknowledges this scandal and is ashamed of it.






boomerang wrote:
If I'm convicted under a law, and then the law changes,
aren't I still guilty of disobeying the law at the time that the crime was committed?
An unConstitutional law is null and void; the USSC has said so explicitly, many times.
The court that accepted his guilty plea was remiss
in failing to obay the Constitution (2nd Amendment).
The 2nd Amendment did not change; it was always intact.
The trial court enforced an aberrant ordinance,
instead of enforcing defendant's Constitutional rights.
That violated the Constitution and put the court outside the law.









boomerang wrote:
Or, if the punishment for breaking that law changes, does my punishment change?
It will not, if it is merely a statutory change.
In this case the defendant always had Constitutional protection.
Government USURPED authority over him, in violation of its Oath.
Because the trial court acted beyond its legitimate power,
it had no more authority over defendant than the Hell's Angels' Motorcycle Club, or a schoolyard bully.

This is what troubles the 3 judge appellate court.
Thay KNOW that.

I think it was the 1970s, when some judge here
ordered his bailiff to go across the street
and arrest a coffee vendor and bring him in to court in handcuffs,
because the judge was dissatisfied with his coffee.
That was kidnapping.
The judge was removed from office
and the bailiff was fined $80,000.

The moral of the story is:
judges are not supposed to go outside the law
(in this case, the defendant's Constitutional Rights).






boomerang wrote:
I think they did that with the death penalty, didn't they?
People who were sentenced to "death" had their sentences changed to "life".
True; thay did.






boomerang wrote:
I don't quite get how that works.
In effect, the 3 judge appellate court is reining in a run-away trial court.





David
hawkeye10
 
  1  
Reply Tue 11 Jan, 2011 01:54 am
@OmSigDAVID,
Quote:
No. Thay just threw that in to blacken his name.
Prosecutors like to make defendants look bad.

Well, that and like to charge shop and like to load up on charges and like to expand on the intent of the legislature so that they can better beat on citizens. I firmly believe that most prosecutors have forgotten that they work for the citizens, they are under the impression that they are doing God's work.
OmSigDAVID
 
  1  
Reply Tue 11 Jan, 2011 01:58 am
@hawkeye10,

David wrote:
No. Thay just threw that in to blacken his name.
Prosecutors like to make defendants look bad.

hawkeye10 wrote:
Well, that and like to charge shop and like to load up on charges and like to expand on the intent of the legislature so that they can better beat on citizens. I firmly believe that most prosecutors have forgotten that they work for the citizens,
I agree with that much. We shoud grill them at election time.





David
hawkeye10
 
  1  
Reply Tue 11 Jan, 2011 02:10 am
@OmSigDAVID,
Quote:
We shoud grill them at election time.


I am not that tolerant of shoddy work....I say that these folks who have lost their way should be buttonholed and made to explain their behaviour day in and day out...
OmSigDAVID
 
  1  
Reply Tue 11 Jan, 2011 02:16 am
@hawkeye10,
Quote:
We shoud grill them at election time.


hawkeye10 wrote:
I am not that tolerant of shoddy work....I say that these folks who have lost their way
should be buttonholed and made to explain their behaviour day in and day out...
Is that practicable?
I believe that thay 'd turn their backs
and walk out on u.





David
hawkeye10
 
  1  
Reply Tue 11 Jan, 2011 02:32 am
@OmSigDAVID,
Quote:
Is that practicable?
I believe that thay 'd turn their backs
and walk out on u
They would try, and they would dismiss what we say because we are not one of them, we are beneath them...

Judges could get their attention though, if we have enough good judges still on the bench. We are certainly seeing judges object more often to those who bring shoddy work into their courtrooms. A few months back we were talking about Judges complaining about ridiculous child porn cases that they are seeing, now we have the foreclosure mess.....

Quote:
With judges looking ever more critically at home foreclosures, they are reaching beyond the bankers to heap some of their most scorching criticism on the lawyers.

In numerous opinions, judges have accused lawyers of processing shoddy or even fabricated paperwork in foreclosure actions when representing the banks.

Judge Arthur M. Schack of New York State Supreme Court in Brooklyn has taken aim at an upstate lawyer, Steven J. Baum, referring to one filing as “incredible, outrageous, ludicrous and disingenuous.”

http://www.nytimes.com/2011/01/11/business/11lawyers.html?hp
OmSigDAVID
 
  1  
Reply Tue 11 Jan, 2011 04:30 am
@hawkeye10,
hawkeye10 wrote:

Quote:
Is that practicable?
I believe that thay 'd turn their backs
and walk out on u
They would try, and they would dismiss what we say because we are not one of them, we are beneath them...

Judges could get their attention though, if we have enough good judges still on the bench. We are certainly seeing judges object more often to those who bring shoddy work into their courtrooms. A few months back we were talking about Judges complaining about ridiculous child porn cases that they are seeing, now we have the foreclosure mess.....
I don 't know much about child porn cases
(tho a friend of mine is a First Amendment lawyer),
but I sure saw A LOT of shoddy workmanship in front of me
in other lawyers' legal practices.

I used to take PRIDE in my work; (I was somewhat of a perfectionist in my practice)
and how I held myself out to the professional world.





David
0 Replies
 
boomerang
 
  1  
Reply Tue 11 Jan, 2011 09:44 am
@OmSigDAVID,
Thanks for the explanation, David.

So if I'm following - his conviction should be overturned because the law he was convicted under was unconstitutional. Is that the argument?

I'd have to agree with that.
OmSigDAVID
 
  1  
Reply Tue 11 Jan, 2011 09:56 am
@boomerang,
boomerang wrote:
Thanks for the explanation, David.

So if I'm following - his conviction should be overturned because the law he was convicted under was unconstitutional. Is that the argument?

I'd have to agree with that.
It IS; the point was that government had no authority to prohibit,
nor to interfere with, the activity for which it convicted him.

The law itself was (so to speak) a crime against the Constitution.
Thus, it was void.

He pled guilty to violating a law which did not exist.





David
0 Replies
 
OmSigDAVID
 
  1  
Reply Tue 11 Jan, 2011 10:15 am

UNITED STATES CODE TITLE 18

CRIMES AND CRIMINAL PROCEDURE PART I

CRIMES CHAPTER 13 - CIVIL RIGHTS

§§ 241. Conspiracy against rights
If two or more persons conspire to injure, oppress, threaten,
or intimidate any inhabitant of any State, . . .
in the free exercise or enjoyment of any right
or privilege secured to him by
the Constitution or laws of the United States,
. . .
They shall be fined not more than $10,000
or imprisoned not more than ten years, or both;
and if death results, they shall be subject to imprisonment
for any term of years or for life.

§§ 242. Deprivation of rights under color of law
Whoever, under color of any law, statute,
ordinance, regulation, or custom,
willfully subjects any inhabitant of any State,
Territory, or District to the deprivation of any rights,
privileges, or immunities secured or protected
by the Constitution or laws of the United States, . . .
shall be fined not more than $1,000
or imprisoned not more than one year, or both;
and if bodily injury results shall be fined under this title
or imprisoned not more than ten years, or both;
and if death results shall be subject to imprisonment for any term of years or for life.

[All emfasis has been added by David.]
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