Wednesday, November 26, 2014

What bugs me about the Ferguson thing...

It's the ignorance surrounding what a Grand Jury does and how it is supposed to work.  And it doesn't come from just the general public since I saw one "legal scholar" make a comment that there should have been rigourous cross examination.

There are two different parts of the criminal process for determining whether a case should go to trial: the preliminary hearing and a grand jury.  Neither of these two proceedings involves a finding of guilt or punishment of a party.  In fact, no "jeopardy" attaches and one can be retried if found "innocent" in one of these proceedings.  The difference between the two is that a preliminary hearing looks like a trial it is open to the public with a prosecution, defence, and judge addressing the matter: None of those are present in a grand jury.

Grand jury proceedings are much more relaxed than normal court room proceedings. There is no judge present and frequently there are no lawyers except for the prosecutor. The prosecutor will explain the law to the jury and work with them to gather evidence and hear testimony. Under normal courtroom rules of evidence, exhibits and other testimony must adhere to strict rules before admission. In fact, a grand jury has broad power to see and hear almost anything they would like.

Well, almost everything.  United States v. Williams, 504 U.S. 36 (1992) points out that there is no right to testify or produce exculpatory evidence:
It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.
The difference in procedures and rules lead to a situation that a former New York state Chief Judge Sol Wachtler would comment that a prosecutor could persuade a grand jury to “indict a ham sandwich.”  Of course, that is also due to the fact that the burden of proof in these proceedings is less than a regular criminal trial: preponderance of the evidence v. beyond a reasonable doubt.  In other words, is it more likely than not that a crime occurred.

Federal law required a grand jury indictment before beginning a criminal proceeding.  There were 162,000 federal cases filed in 2010:  Grand juries declined to return an indictment in 11 of them. Of course, this was a state proceeding rather than a federal one (and the feds love cases they can't lose). On the other hand, “If the prosecutor wants an indictment (in a non-federal case) and doesn’t get one, something has gone horribly wrong,” said Andrew D. Leipold, a University of Illinois law professor who has written critically about grand juries. “It just doesn’t happen.”

 Of course, a lot of commenters are thinking that the prosecution didn't want to bring charges, but this is a high profile case with a lot at stake.  What better than to pick a procedure where these is no real scrutiny.  In fact, ordinarily the proceedings in a grand jury case should be sealed, but they have been released in this case to try and give some form of legitimacy that this was some form of adversarial proceeding, which gets to the comment about cross examination.

That didn't happen here.  In fact, from what I heard the prosecution basically discounted anyone who contradicted Officer Wilson's defence.  Additionally, this was done without any real cross examination, yet there is this mysterious "grand jury proceeding" to lend an air that "justice has been done" when that was hardly the case.

Of course, I can guess that people who believe that a white person can carry a gun late at night in a known drug and prostitution area will find that the police acted with justification in shooting an unarmed black youth who may have been surrendering.  If the police officer in the first instance faces reprimand--shouldn't he also in the second one?  In fact, it would seem more important that justice is done in the second situation since deadly force was actually used.

The real issue is not so much whether Michael Brown was an innocent young man as much as whether justice has truly been done.

Of course, that is something that far too many people have missed in this situation.

See also:

The Originalist's dilemma

Justice Scalia has a fallacy that the Constitution must be interpreted within its original meaning, yet he must admit that he should be incredibly incredibly (yes, I mean to say that twice) wary about overturning laws made by elected officials if he is going to do that.


This power is not expressly granted in the Constitution.

In fact, as I have pointed out many times before, this power comes from the case of Marbury v. Madison, which also said: It cannot be presumed that any clause in the Constitution is intended to be without effect.

So, should he be very wary about declaring laws unconstitutional since that is not a power which is expressly granted by the constitution? 

Additionally, since he went against Marbury once to the detriment of public safety in the Heller decision, should he admit that decision committed the grossest of errors in his political philosophy?

In fact, if anything the Heller decision totally contradicts his claimed belief in that the document should be interpreted as originally intended.  After all, the Second Amendment was implemented by the Militia Act of 1792--not the guns for criminals acts.

Scalia is not as clever as he would like to paint himself as he has painted himself into an ideological corner which those cleverer than he is can laugh at his folly.  The ultimate farce is that he is claiming powers which have not been granted to him by the document he claims to believe in.

How Many Guns are Stolen Each Year?

Re-posted for the edification of Kurt Hofmann who loves to play dumb and avoid Google when it's convenient to do so.

How Many Guns Are Stolen Each Year?

One of our favorite commenters recently expressed doubt as to the claim that a half-a-million guns are stolen each year. Of course, this is a guy known to bend the truth a bit in the name of a good argument, so it's hard to tell if he was even serious.  Furthermore, he's a guy who firmly believes in the million-plus numbers of DGUs which are based on telephone interviews with self-aggrandizing gun owners boasting about their exploits. But, with hard numbers of stolen guns reported around 200,000, even though such reports are not required and may very well reflect badly on the stupid gun owners who keep their guns under the pillow for safekeeping, this unnamed commenter finds it hard to believe the true number is up around a half-a-million.


Guns stolen from homes: Almost 600,000 guns are stolen each year from private homes, according to poll data on gun-owning households.

Johns Hopkins University puts the number at 500,000


“I think [the report] needs to be put in context,” said Lawrence Keane, assistant secretary and general counsel at the National Shooting Sports Foundation, a trade association for the gun industry. The number of guns that are stolen each year is likely to be much higher, Keane said, referring to a widely cited survey by the U.S. Department of Justice that suggests it’s closer to 500,000. However, even half a million stolen guns represents a small fraction of how many guns are sold, manufactured and imported in the United States every year, he said. (The ATF estimates that about 6.5 million firearms were manufactured and another 3.2 million were imported in 2011.)

US Bureau of Statistics gives the number of REPORTED guns stolen.

The U.S. Bureau of Justice Statistics released a report last November with lower -- but still alarming -- numbers. According to the report, 1.4 million firearms were stolen during burglaries and other property crimes between 2005 and 2010. That's an average of 232,400 annually. 

The ATF gives us the number REPORTED, even though it's not required. One can only guess at the multiplication factor required to reach the actual number of guns stolen.

In 2012, NCIC received reports reflecting 190,342 lost and stolen firearms nationwide. Of those 
190,342 lost and stolen firearms reported, 16,667 (9% of the total reported) were the result of 
thefts/losses from FFLs. Of the 16,667 firearms reported as lost or stolen from a FFL, a total of 
10,915 firearms were reported as lost. The remaining 5,762 were reported as stolen. 

Stop the Insanity: Ban Guns

Gerald Ensley

The Tallahassee Democrat

I'm not talking about gun control. I'm not talking about waiting periods and background checks.
I'm talking about flat-out banning the possession of handguns and assault rifles by individual citizens. I'm talking about repealing or amending the Second Amendment to the U.S. Constitution.
The Second Amendment has been misinterpreted. It says guns are permitted to a "well-regulated militia." That means trained citizen soldiers called into action for emergencies — because in colonial times every able-bodied man was required to be a member of the militia. It does not mean everyone with $50 and a driver's license is entitled to own a gun.
That's what former Supreme Court Chief Justice Warren Burger said in 1990, when he called claims of Second Amendment protection of individual gun ownership, "a fraud on the American public." Earlier this year, retired Supreme Court Justice John Paul Stevens called the Second Amendment one of the six great flaws with the U.S. Constitution. He called for it to be amended to say gun possession was only for state militias, not individuals.
Every legal opinion for 200 years denied individual gun ownership was a right — until the steady lobbying of the National Rifle Association created a climate that allowed a conservative U.S. Supreme Court in 2008 to strike down a handgun ban in the District of Columbia, and fuel the sense of entitlement of gun owners.

L.A. City Council Approves Safe Storage and Ammo Control

Local news reports

Ammunition sales would be tracked electronically in Los Angeles under a measure tentatively approved Tuesday by the City Council, which also directed staff to draft an ordinance to  require gun owners to store firearms in locked containers or use trigger locks to disable them when not in use.
The City Council voted 11-0 in favor of a proposed ordinance that would require licensed ammunition dealers to transmit sales records to the city via an online form, doing away with what one councilman described as the city’s “draconian” method of requesting physical records.
If given final approval by the council on second reading and signed by the mayor, the measure would make it a misdemeanor crime if retailers fail to comply with the reporting requirements.

Tuesday, November 25, 2014

Congratulations, Jon Holzwarth! You Are Our 2nd Amendment Hero Du Jour

Southern Beale

Responsible gun owner/prominent 2nd Amendment “gun rights” advocate Jon Holzwarth was babysitting his three-year-old son and his neighbor’s four-year-old grandson when a totally responsible thing happened: his son somehow was shot in the mouth. Imagine that:
According to Snohomish County deputies, the shooting happened in a bedroom that was locked.
Holzwarth told them he heard a loud boom and ran to the bedroom where his son, Michael, and his neighbor’s 4-year-old grandson were playing.
He forced the locked door open and initially thought his son had gotten hurt that way.
At Providence Everett Medical Center, doctors discovered the boy had been shot in the mouth.
He was airlifted to Harborview Medical Center in Seattle.
No one answered at Holzwarth’s door where a sign reads: “We don’t dial 9-1-1″ with a metal cutout of a pistol dangling below.
There were also emblems about guns on his Jeep.
On Saturday, his son was struggling to survive from a gunshot wound — a tragic irony not lost on his neighbor.
Oh, yes. The irony. I’m sure Holzwarth’s guns protected his family dozens and dozens of times before this tragic incident, though.

Rattlesnake vs. Hawk