Posted on 08/29/2008 9:21:57 PM PDT by Domandred
This is a double article post:
First article from this morning -
Judge won’t throw out Ferdinand gun charge
A district judge on Thursday denied a motion to acquit Canyon County Commissioner David Ferdinand on a charge of carrying a gun in his backpack while trying to board an aircraft at the Boise Airport in February.
Ferdinand has pleaded not guilty to the charge. His attorney said the allegation states that Ferdinand “knowingly” had the gun with him when he tried to board a flight for Washington, D.C., last winter. Ferdinand and his attorney insist he did not know the gun was in his backpack.
Based on an audiotape of airport officials interviewing Ferdinand at the time of the incident, 4th District Judge Daniel Steckel said he was not sure whether Ferdinand knew if he had the gun in his bag or if he thought he could carry it as an elected official.
Witnesses testified Thursday that Ferdinand acted differently than other travelers who had guns they had inadvertently stored in their luggage. Some implied that his surprised reaction was not convincing. But Ferdinand attorney David Leroy said those claims were unspecific and speculative.
An audiotape of Ferdinand’s interview with Boise Police assigned to the airport recorded Ferdinand as saying, “Oh no, you’re kidding?” when an officer suggested to him that he might have a gun in his bag.
“(His) demeanor was very calm,” Boise Police officer Adam Schloegel said. “I don’t even recall him saying he was sorry or seeming particularly concerned about it.”
A Transportation Security Administration official said she saw a smirk on Ferdinand’s face and thought he looked like he knew the gun was in the bag. But after a strong objection from Leroy, that part of her testimony was stricken from the record.
The county commissioner knew exactly where the gun was in the bag when asked by police because, Leroy said, he had intentionally placed it in a hidden compartment for a previous road trip. Before leaving for Washington, Ferdinand even took a knife and another tool out of his bag to comply with airline travel regulations.
“He simply missed the gun in that pocket,” Leroy said.
Ada County Deputy Prosecutor Jennifer Pitino said the jury may not believe Ferdinand forgot he had the gun.
Leroy and Pitino both made their opening statements. They interviewed three Transportation Security Administration officers and a Boise Police officer involved in discovering Ferdinand’s weapon at the Boise Airport.
Pitino said Ferdinand knew to pack his bag according to the law and did not check to make sure his gun was not in the backpack he used.
=====================
Second article:
Ferdinand case declared mistrial
Magistrate Thomas Watson declared Canyon County Commissioner David Ferdinand's airport gun case a mistrial Friday evening after jurors deadlocked on their decision.
The jury failed to reach a unanimous verdict, so the case will be retried at a date to be determined.
"I think we're hung up over what was intended and whether a person is guilty whether they intended (something)," one juror said. She said the jury was split by either 5-1 or 4-2 on its decision.
The jury began deliberations Friday afternoon after attorneys for both sides in the case made closing arguments.
Ferdinand was charged with having a handgun in his carry-on backpack Feb. 28 at the airport checkpoint in Boise. A jury trial in the case will decide if Ferdinand "knowingly" packed the gun, as is stated in the charge.
No, I mean the standard of proof as in reasonable doubt vs. preponderance of evidence. So not what findings they must make to find guilty/for-the-plaintiff, but the degree of certainty required in those findings.
Oh that part. I’ll have to ask wife later on what instruction they were given there.
Think it was reasonable doubt though, in which case the jury ignored it, because they all admitted at the start he didn’t know he had the gun. If it was preponderance of evidence, the prosecution couldn’t bring evidence he definitely knew except the smirk which was stricken and that he “should have known”.
In either case my wife would have gone the same way, not sure on the other jurors.
My wife said that even there was something simple like one of the witnesses overheard him joking about attempting the bring the gun in that would have been enough for her to render guilty, but there wasn’t even that.
Well what I was saying earlier today to Domandred that had there been, something, anything, someone, anyone who could say or prove that he actually “knowingly” or “intended” to bring a pistol aboard a public aircraft my position might have been swayed! But there was none!
There were five definition facts in the judges instructions. Each fact had to be met in order to render a guilty verdict. The forth fact stated he had to “knowingly” bring a firearm through the sterile portion of the airport.
Further instructions from the judge described crime (very pointedly) that a crime has only been committed when the “intent” and “act” are present. I could not find that both were even remotely bound to one another in this case. And that was the key stipulation, that intent and action were joined together exclusively to have it be a criminal act!
A friend of mine found 5 rounds of .38 in her bag while taking out her knitting. This was sitting down at the gate after passing security, and was the month after 9/11 occured
A civil case? Then why is there a guilty/not-guilty verdict? There are guilty/not-guilty verdicts only in criminal trials. In a civil trial you fined for either the plaintiff or the defendant.
It is sad that a jurist would let the rumbling in his stomach determine the innocence or guilt of a person. Good for you for holding out. You read the law and interpreted it correctly.
You done good.
Couldn’t you report the other jurors for failing to follow the judge’s instructions?
Monday morning quarterbacking here, but if they all agreed that he didn’t knowingly take the gun to the airport and still voted “guiltly,” isn’t that some kind of misconduct? (Not a lawyer, just saying...)
When Hollywood began making movies with bad guys firing thousands of rounds pr movie. It had the subliminal effect of equating gun owners as bad.
When it elected Jimmah Cahtuh in 1976, you can't get any dumber than that.
Unless you plan to vote for Obama that is, now that would be even dumber than voting for Jimmah.
Couldn’t you report the other jurors for failing to follow the judge’s instructions?
Monday morning quarterbacking here, but if they all agreed that he didn’t knowingly take the gun to the airport and still voted “guiltly,” isn’t that some kind of misconduct? (Not a lawyer, just saying...)
Thank you!
I agree it is some sort of misconduct, and failure to follow the judges instructions. However, we were not allowed to ask for further direction from the judge. All the wording was subject to the jury's interpretation. We weren't even allowed to have a dictionary so that we could look up the word "knowingly".
Part of the problem is that in the prosecutors closing statements she started to play with the words. Stating that to know something is the same if you knew it at one time but forgot it at another time. That you still know the information even if it your memory is failing at that moment. This confused most of the other jurors. Had this not been said, I believe that most of the other jurors would have voted not guilty nearly immediately.
Of course being forgetful isn't a crime. Intentionally knowing you are about to do something wrong is. It's just straight up common sense!!!!!!!
I don't think so, but I'm not a lawyer. AFAIK a juror is free to make up his or her own mind regarding the guilt or innocence of the accused, and not even the judge can ask for either the reason for the juror's decision or an explanation of how he or she arrived at that decision.
Personally, I'm a strong advocate for jury nullification in cases where the law that the defendant is accused of breaking is clearly unconstitutional. I was dismissed from a criminal trial jury a few years ago when the prosecutor asked me some pre-trial questions about jury nullification and the judge didn't like my answers. I would urge anyone called for jury duty not to vote to send anyone to prison or worse for breaking a law that you know in your own impartial mind is unconstitutional, no matter what a judge has to say about it. The Constitution isn't hard to understand unless you want it to say things it doesn't say, or vice-versa. But prosecutors and judges can twist and bend words and phases around to make them say what they think they should say instead of what they actually say.
Absolutely, I wish I had thought of some of these thoughts and arguements while being in that jury room. Should have, could have, would have...
This entire case is a complete fiasco to begin with. It’s sad, unfortunate, un-constitutional, and ridiculous! The more I think about it, the more angry I am at the “idiots” beside me, with zero clue in their brains, and the judges / prosecutors who bank on it!
One of the pre-questions to the jury was, if someone new what amendment “keep and bare arms” was. No one else answered but when it was my turn, I off handedly stated that it was the second amendment. The defense attorney turned to me and said he gives me an A for knowledge. =)~ It made me laugh and smile.
Surely at that point I was the defense attorneys pick. And I am sure at that point, I was not the prosecutors pick. (I assume) As the prosecutor was banking on no evidence to support her case. But bending and manipulating the words of the law to make her case. So that jurors were too confused on how to vote. As she realized she had zero evidence to stand upon.
You know, it’s two days later and I’m waking up this morning and thinking about this case still. I just feel like there is no closure for me. I feel like it was a case that should have never seen the light of a court room. I think that it was a complete mis-use of our bill of rights. I believe that Mr. Ferdinand has paid fully and beyond what he should have paid for, for making a mistake. We are all human beings and in this country it is not a crime to be one.
I’m just so angry and I know this will not be the last time that the second amendment will come under fire again in such a manner. Each year that passes I see the politicians chip away at our basic freedoms that make this country/state so great. I wish I could honestly say that they will not continue down this track but I know, in my heart, that they will.
I dare say that the mayor of Boise has shamed himself and everyone in Idaho with sending this case be before a jury. This state and country deserves a politician who will act for the people!!! I am just so outraged by this ordeal.
Maybe some of you can help me see where I can find some closure.
I’ve traveled on flights several times with a checked pistol...surprisingly, no big deal...the TSA dude checked that it was unloaded and the hard case was locked. I also had a trigger lock on the pistol. Also, the TSA is not allowed to tag your luggage with any kind of marker that identifies there is a firearm inside.
Last time I checked a firearm was in 94 I think it was. They didn’t tag the outside of the luggage, but there was a bright blaze orange plastic strip that went inside my bag with my gun case.
The Heller decision makes me more optimistic. It is a beginning of rolling back anti-gun laws. The burden has now shifted to the anti-gunners to find room for their infringements.
In the unlikely event that I should find myself on a jury deciding a gun-related case, I would probably be reading between the lines looking for any justification whatever to decide in the defendant's favor. Only the most blatant criminal behavior would find me arguing for a conviction.
It sounds to me as if you did really well to focus on what the law requires. You made your case to your fellow jurors and stood your ground. I wouldn't hope for "closure" which includes the elimination of ignorant jurors from juries. We might look forward to a time when judges are bound to explain that there is a right to keep and bear arms and that it shall not be infringed. That day hasn't come yet.
I believe that this jury would have voted "not guilty" had they not listened to the prosecutors closing statements. (which we weren't supposed to listen to her statements, and weight our decision on facts) She stated that we shouldn't mess with the wording of the law. Then she started to mess with the wording of the law. Saying to "know" something once, means you "always" will know it and "forgetting" wasn't to be coupled with "not knowing". Had she NOT said that, I am pretty sure a majority of the jurors would have voted, "not guilty".
With the exception of maybe one who seemed to think that just because he had a gun at the airport was enough. Which isn't why we were there. We were to decide if he "knew" he had a gun and "intended" to commit a crime. Unfortunately some will see it just like that.
None of the jurors ever had a concealed weapons permit nor did they carry a gun on a daily basis. I was the only person who has even come close to having such experiences. As my husband is a concealed weapons permit holder and carries on a regular basis.
I will try to remember, that I did my duty. I will try to remember that the prosecutors job was to convince me that a crime was committed. (she failed to do so) I will try to remember that it was not my duty to convince the other jurors.
PS Because of this experience, I have decided to go through the concealed weapons permit class and buy my own hand gun to conceal and carry from now on. My husband has offered to train me in safety and proper use of a firearm.
~_~
There are differences between the state’s civil procedures. In CA, you only need to get a majority of the 12 man jury, and you would be found liable.
In Idaho, apparently, they reduce the number of jurors, but still require unanimity, and the guilty/liable distinction is not so clear.
My grandfather taught me how to research differences between states in any law library. Because of that, I was able to move to California for a few days to get married, as my marriage would have been illegal in Arizona.
One of the reasons that criminal cases require proof "beyond a reasonable doubt" is that the government has many other advantages when it brings a case to court, and raising the standard of proof serves to offset some of those advantages, thus promoting balance. Further, since citizens are supposed to be the masters and government the servant, any imbalance should favor the citizen.
In a civil case between non-government parties, it's generally fair to reduce the standard of proof to "preponderance of the evidence" because--at least in most cases--the government's "advantages" don't translate into advantage for either party; to require a higher standard of proof would be to put the citizen who happens to be the plaintiff in a particular case at a decided disadvantage compared to the one who happens to be the defendant.
I see no reason, however, why the lower standard of proof should apply in cases where the plaintiff is, in fact, the government. While it may seem in some measure reasonable to have a lower standard of proof in cases where money is owed for reasons not involving wrong-doing, a serious difficulty would arise in cases where a person refused to pay and was ultimately charged criminally for such refusal. If the person never legitimately owed a certain sum of money to the government, the person cannot justly be prosecuted for refusing to pay that which was not owed. Thus, prosecution for non-payment should require proof beyond a reasonable doubt that the money was, in fact, owed. To allow a lower standard of proof in non-criminal hearings would create some awkward situations where the government would be found to have the authority to demand payment but lack the authority to punish non-payment.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.