Felons' Right To Possess Gun in Self-Defense, and While Delivering It to the Police:
The Fourth Circuit reaffirms this, and sets aside a 15-year sentence imposed after the defendant's lawyer wrongly advised the defendant that no such defense exists, and the defendant pled guilty in reliance on that.
Unfortunately, it looks like the defendant ended up serving at least 4 years in prison because of the lawyer's error, but at least it's not 15. Thanks to How Appealing for the pointer.
Related Posts (on one page):
- Congratulations to Meghan Poirier,
- Felons' Right To Possess Gun in Self-Defense, and While Delivering It to the Police:
The panel let it happen and the appellant was successful, so the student, along with those who backed her up, did alright by her client. (Would she have been pro hac vice, though still in school and not admitted anywhere?) Not bad to start 1-0 in the Fourth against the United States of America.
It was Wake Forest, not William &Mary.
Representation by law students is governed by Fourth Circuit Local Rule 46(a). Basically, the law student must work under the supervision of a supervising attorney (i.e., a professor at their law school) and representation is limited to indigent defendants.
Given the law students that do this are doing it as part of a class, and a professor is working with them, they usually spend a very significant amount of time on such cases. A pretty good deal for someone who cannot afford an attorney of their own.
Perhaps the defense lawyer was aware of facts which would disprove the justification. I've encountered a few federal public defenders in gun cases, and found them to be extremely good. This seems like an outrageously bad lawyer, but it's hard to know without a trial.
On a side note, the defendant must have had an impressing record of convictions to get 15 years for possessing a handgun. Federal firearm sentences are highly dependent on prior convictions and the type of weapon. I had a guy get 9 years for possession of a sawed-off shotgun and a handgun, and he had prior convictions for attempted murder with a firearm and drug dealing.
Not to be pedantic, but it doesn't work that way. There's no right to a bench trial.
Admittedly, there is no /right/ to a bench trial. Which is to say the State/Feds have a right to a jury trial as well. But once the defense has waived the right to a jury trial, it becomes harder for a prosecutor to resist.
Besides, on these facts, you'd look pretty bad retrying the case, much less wanting to press it in front of a jury.
Rev. Sun Myung Moon was tried by a jury, at the government's insistence after he had waived his right to a jury trial on his tax evasion charge. I'm sure the government was simply protecting Moon against his foolish disregard of his right to be tried by his peers, and never entertained any idea that those peers might be prejudiced against him.
And it is the defense attorney's fault that he spent four years in prison? This case is as much ineffective judging is it is ineffective lawyering.
It is possible that the 15-year sentence was a mandatory minimum. If that was true, it is likely that there was not much of a disincentive to try the case, since the sentence would have been the same regardless of trial or guilty plea. If that were true, it does put the defense attorney's actions in a somewhat different light.
But you have to wonder what kind of prosecutor would ask for 15 years with these facts when the defendent is copping a plea?
What kind of prosecutor would do this? A typical one.
3rd year law students brief cases like this all the time. They can do excellent work. Also the supervising attorney (and law prof), John Korzen, is an outstanding federal appellate lawyer.
Oh, right, the firearm probably traveled in interstate commerce at some point in its life.
That's probably a bit harsh. My answer is: The same kind that prosecute 13 year old boys as felons for slapping some girl's butt.
Is there some legal slang for this kind of prosecutor that would be equivalent to the cop phrase "badge heavy"?
A bit off-topic, but all firearms are apparently considered to have "traveled in interstate commerce" which is the justification for federal laws relating to the sale of firearms, Federally Licensed Firearms Dealers, Instant Check and the whole nine yards.
When one considers the (very real, happens every day) possibility of Smith and Wesson, in Springfield, MA manufacturing a handgun and selling it to Camfour, a distributor in Westfield, MA who then proceeds to sell it to Roach's Sporting Goods in Cambridge, MA who then sells it to a licensed citizen of Massachussets (names of companies are real, for example only), one has to ask where the "interstate commerce" is....
As I understand it, the excuse (apparently legal and Constitutional, but really thin to my mind) is that, well, the steel that the handgun was made out of came from Michigan (interstate commerce) and the walnut wood the grips were made from came from California (interstate commerce) and so forth.
With this sort of thinking, how do we have any state's rights and valid state laws at all? And, given that there have been a few reversals of this sort of abuse of the Commerce Clause, one wonders whether this particular issue (that guns are considered to be in interstate commerce whether they actually have been or not) would pass muster before the Supreme Court today.