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.
Bears repeating. The police are NOT on your side.
There are a number of states that are beyond the Claire Wolfe stage with their firearms laws.
Unfortunately that is New Jersey...Most of us who do not live there can throw rocks at all the infringements that are vehemently supported and enforced by all levels within that state...
As a gun owner you are not going to get any sympathy or pass, based upon commonsense and honest objective analysis from those same entities...
They have a good start with Christie, and again, unfortunately, gun ownership is not on his top ten list of things he needs to get done in that state...
Actually come to think of it the guy got off pretty well with the governor giving him this commutation...But I seriously doubt he’ll get anywhere with the courts to espunge (clean up) his record...
Hind sight is always twenty-twenty, and for the longest time those of us who pay attention to a lot fo gun ownership news and issues know New Jersey is absolutely hostile to gun owners from the viewpoint of the legislature and the courts, and most important the law enforcement side of the equation...
Its been a long time developing into such an oppressive sub-culture within this country, and it is going to take a long time, if at all, to change it to being something attractive for anyone like us to want to move, or even visit that state...
The judge in this case may be unemployed, and rightfully so because of a whole plethra of offensive rulings against many other people, and not just this guys case...But the system is still in place, and unless the governor is willing to take the PR hit, he will have to get on prime time and explain to those in the judicial system in that state and explain to them that this oppressive nature this state exemplifies is no longer acceptable at any level of that system...
New Jersey will always be someplace I will not like going to if I have to or not because they do not respect my individual right to keep and bear arms per the state law, and even the US Constitution...
But this is just my opinion...
Yes, JURORS are there to do the JUDGE's bidding. D'oh! Tools.
Which would make him guilty of....responsible gun ownership?? Damn him! Let's get him!
But if we give it up how do you propose to punish prosecutors and judges like these? Maybe keep it legal but only for those who commit crimes under color of authority.
BS!
Airmen was not guilty in any sense of the word!
Stop making excuses for Christie.
Airmen=Aitken
The iPad sucks in that it changes words all of the time,
I’m not making excuses for the man.
But I am taking a look at case from his point of view. He can’t simply release the man because the man has some very convincing supporters and it’s feel good.
That’s how Willie Horton got released and Huckabee is stuck with having to wear it.
Christie has to rely upon the evidence. If the legal evidence isn’t there, with sufficient certainty, it can’t be relied upon.
I believe there are crimes for which the death penalty is fully justified. I just don't trust our highly politicized system of justice to do administer it right. To me, the death penalty is sort of just another government program gone wrong because of corruption and mismanagement.
I'm thinking that if a judge or prosecutor DID do something criminal, putting them in prison in the general population is an even better punishment than the death penalty.
The only time you should ever call 911 is if you believe there is an EMERGENCY - which means the condition puts someone's life in immediate peril. If you are just "worried about someone's mental state" then take the time to find the non-emergency police line if you feel you absolutely must talk to the police about it. When you dial 911, you are telling the police that the situation is an immediate threat -- an emergency. That is what the 911 line is for; it isn't for counseling services.
Bullcrap. It's called "jury nullification" and this was a perfect case in which to use it.
Hmmm...good points.
” wonder if it would be possible to set up a system to educate potential jurors in jury nullification.”
Yes, but don’t do it in front of a courthouse. There was some prosecution of a libertarian who was passing out flyers too near a courthouse — jury tampering or some nonsense.
Duoh!!
Jury nullification was in order.
Exactly!
You’re comparing Willie Horton to Brian Aitken?!?!
Please tell me you are kidding.
I’m only comparing the two in terms of what can happen when you allow a bunch of avid supporters affect your judgement.
Life is not fair, but the judicial process must be respected.
Actually, I do know about it. I’ve already posted that it is a travesty of justice and he needs to be compensated.
I think the US is too quick to throw people in jail and that there are far too many people who should not be there, like weekend tokers and such, not that I support massive decriminalization of drugs.
You’d have ask the judge why he discounted critical testimony and Governor Christie as to why he has either not looked at the case or pardoned the man. For all I know, Christie is waiting for the case to resolve itself, don’t know.
I just don’t support the position that a governor should pardon people because a mob of people demand it so. Our justice system is imperfect and sometimes the wrong people get caught. But our system is all there is.
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