Posted on 03/28/2011 4:46:25 PM PDT by neverdem
Sue Aitken called the police because she was worried about her son Brian. She now lives with the guilt of knowing her phone call is the reason Brian wound up sitting in a New Jersey prison. If it weren’t for a commutation of his sentence from the governor’s mansion, he would be stuck there for the next seven years.
Aitken was sentenced in August for felony possession of a handgun. Before his arrest, Aitken, the owner of a media consulting business, had no criminal record. By all appearances he made a good-faith effort to comply with the stringent New Jersey gun laws that eventually proved his undoing. Even the jurors who convicted him seem to have been looking for a reason to acquit Aitken. But the judge gave them little choice.
Aitken, born and raised in New Jersey, moved to Colorado several years ago. In Colorado he married the woman who is now his ex-wife, who was also originally from New Jersey. The two had a son together. When the marriage dissolved, Aitken’s wife and infant son moved back to New Jersey. Aitken then also moved back to be closer to his son. Beginning in late 2008, he took the first of several trips between the two states, a process that involved selling his house in Colorado, moving his possessions across the country, and finding a job and new residence. Until he could find an apartment, he stored his belongings at his parents’ home in Burlington County, New Jersey.
In December 2008, Aitken made a final trip back to Colorado to collect the last of his possessions, including three handguns he had legally purchased in Colorado—transactions that required him to pass a federal background check. Before leaving Colorado, Aitken researched and printed out New Jersey and federal gun laws to be sure he moved his firearms legally. Richard Gilbert, Aitken’s trial attorney, says Aitken also called New Jersey State Police to get advice on how to legally transport his guns, although Burlington County Superior Court Judge James Morley didn’t allow testimony about that phone call at Aitken’s trial.
Aitken’s legal troubles began in January 2009, when he drove to his parents’ house to pick up some of his belongings. He had grown distraught over tensions with his ex-wife, who according to Aitken had refused to let him see his son. When Aitken visited his parents’ house, his mother grew worried about his mental state and called 911. When police arrived at her home, Sue Aitken told them her concerns, and they called Brian, who was then en route to his new apartment in Hoboken, on his cell phone. They asked him to turn around and come back to his parents’ house. He complied.
It was there that the police confronted Aitken. Although they determined he wasn’t a threat to himself or anyone else, they searched his car, where they found his handguns—locked, unloaded, and stored in the trunk, as federal and New Jersey law require for guns in transport. The police arrested Aitken anyway, charging him with unlawful possession of a weapon.
New Jersey gun buyers must go through a laborious process to obtain a “purchaser’s permit.” But that permit doesn’t allow you to possess a gun. A few select groups of people, mostly off-duty police officers and security personnel, can obtain carry permits. But anyone else with a gun is presumed to be violating state law and must defend himself by claiming one of the state’s exemptions. The process effectively makes New Jersey gun owners guilty until they prove themselves innocent.
The exemptions allow New Jersey residents to have guns in their homes, while hunting or at a shooting range, while traveling to or from hunting grounds or a shooting range, and when traveling between residences. Aitken claimed he was moving between residences, and there is strong evidence he was. Sue Aitken testified that her son was moving his belongings from her house to his new home. So did Aitken’s roommate. One of the police officers at the scene testified that Aitken’s car was filled with personal belongings.
Yet Morley wouldn’t allow Aitken to claim the exemption for transporting guns between residences. During deliberations, the jurors asked three times about exceptions to the law, which suggests they weren’t comfortable convicting Aitken. The judge refused to answer all three times.
In response to a query about why Aitken wasn’t granted the moving exception, the Burlington County Prosecutor’s Office replied via email, “There was no evidence produced at the trial by the defendant that warranted such a defense.” Gilbert, Aitken’s lawyer, says that isn’t true. “We put on plenty of evidence that Brian was moving,” he says, “including testimony from his mother, his roommate, even the police officer who arrested him.”
In a telephone interview, Morley (who lost his job when Gov. Chris Christie declined to reappoint him in June because of rulings in unrelated cases) says he didn’t allow the jury to consider the moving exception because “it wasn’t relevant.” Morley adds: “There was no evidence that Mr. Aitken was moving. He was trying to argue that the law should give him this broad window extending over several weeks to justify driving around with guns in his car. There was also some evidence that Mr. Aitken wasn’t moving at all when he was arrested, but had stored the guns in his car because his roommate was throwing a party, and he didn’t want the guns in the apartment while guests were there drinking.”
Evan Nappen, who is representing Aitken in his appeal, says the story about the party came from a faulty police report. In any case, Nappen notes, it was not Morley’s job to decide whether Aitken was moving. “That’s a question of fact, not law, and questions of fact are supposed to be determined by the jury,” he says. “The judge is supposed to instruct the jury on the law, and in this case he refused to let them even hear it. But besides that, for him to say there was no evidence presented that Brian was moving just isn’t true.”
Without the exception, the jury’s job was easy. In New Jersey, possession of a firearm without a permit is a felony, punishable by a mandatory minimum sentence of five years in prison and a maximum of 10. Aitken was convicted and sentenced to seven.
The prosecutors had some discretion here. They could have decided that Aitken plausibly thought he qualified for the moving exception, or that it wouldn’t be in the interest of justice to charge him with a felony punishable by five to 10 years in prison. There is no evidence that Aitken threatened anyone with his guns or intended to use them for any nefarious purpose. Even the version of events least favorable to Aitken—that he put the guns in his trunk to keep them away from party guests who might have been drinking—shows him to be a responsible and conscientious gun owner. Morley acknowledges as much. “I can see the point that taking the guns away from the party might have been the responsible thing to do,” he says. But he adds that still wouldn’t entitle Aitken to the moving exception.
There’s a happy ending: On December 20, Gov. Christie commuted Aitken’s sentence. Aitken came home on December 23rd. His felony conviction still stands, but he will fight to clear his record through the appeals process.
It’s good that Christie intervened, but it’s a sad state of affairs that he had to. Putting Brian Aitken in prison wouldn’t have made New Jersey any safer. It might, however, make some of the state’s residents think twice before calling the police, particularly if they own guns. It might even make some New Jersey gun owners wonder if they have more to fear from the state’s ridiculous laws and overly aggressive cops and prosecutors than they do from criminals. Given what happened to Aitken, those fears wouldn’t be unfounded.
Prosecutors only care about one thing: obtaining a conviction. They would sell their own children down the river if it put another notch in the win column.
Jury nullification was in order.
Zoo Jersey should be expelled from the USA
I’d be hard pressed to speak to either the mother ever again.
Aitken remains a criminal thanks to the trial, and Crhistie remains a Rino blowhard.
In this day and age of "Nifonging" prosecutors and militarized police agencies, law abiding citizens have WAY more to fear from government and "law enforcement" than criminals do.
Why does Christie get a pass because he commuted the sentence when a full pardon was in order?
I feel for the mother; she clearly didn't plan to cause harm to her son.
But the fact is that anyone in New Jersey who wishes to do harm to another person has an easy path to take due to these laws.
Law abiding citizens in New Jersey ought to be very concerned about this and should do something before they find themselves caught up in the labyrinthine mess that constitutes Garden State gun regulations.
To me the single most important fact is that HE ASKED THE POLICE FOR INSTRUCTIONS AND FOLLOWED THEM~!!
Everything else is less important that that. If you can go to jail for doing what the police tell you to do, then this system needs armed insurrection.
And the judge refused to let the jury know? They turned a concientious law-abiding citizen into a criminal for political gain.
JAIL FOR THEM ALL - he was Nifong’ed.
I hope he sues their asses for several million dollars. And I hate lawsuits.
“Jury nullification was in order.”
I wonder if it would be possible to set up a system to educate potential jurors in jury nullification.
And some can’t understand why so many of us despise the pigs.
The taxpayers of N.J. don’t mind feeding and housing an innocent man for 7 years, not a bit,,,,,ya hear, not a bit. Ya got that??
“Putting Brian Aitken in prison wouldn’t have made New Jersey any safer.”
And given demographic realities, the more NJ gun owners who move out of the state, the less safe those who are left will be. The ultimate aim of the anti-gunners in NJ is a state where gun ownership is outlawed. It will become like Chicago, where the rate of firearm-related crime is high. But the clueless liberals who banned guns to be safer will never think that they were wrong. In my opinion these people have blood on their hands.
Not under the current system of selection of jurors. Both lawyers will reject you if you claim to know anything about this subject. There will be always plenty of low IQ candidates from which to select. Why not if they are "educating" them in public schools.
If an activist tries to educate jurors within the court building s/he may be arrested for "interfering" with them. Judges know more laws than a normal person does, and they can apply them on the spot. If some laws are unconstitutional ... the activist will be free to challenge them from behind the bars.
The reason is that the bosses of the current system of [in]justice want it this way, and they have all the power to enforce their preferences. Today the justice system is a world in itself, with its own High Priests, soldiers, and other servants. They have their own language, their own power, their own "sacred books," and they can imprison anyone at will - just as it happened in this story.
Getting the issue to go viral at a grass roots level will be the only thing that helps.
“Both lawyers will reject you if you claim to know anything about this subject.”
And I’m guessing that responses during voir dire are given under oath, so that anyone claiming no knowledge could be prosecuted for perjury.
>>“Both lawyers will reject you if you claim to know anything about this subject.”
>
>And I’m guessing that responses during voir dire are given under oath, so that anyone claiming no knowledge could be prosecuted for perjury.
Perhaps; though I don’t think they ask directly about Jury Nullification: their greatest advantage is that [most] people do not know about it.
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