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Cato
12-09-2007, 12:43 PM
Has anyone EVER been prosecuted with an attached magazine? I know there are lots of options to attach mags these days and I see attached magazine rifles in various gunstores and at local ranges. The state seems unwilling to comment anymore attached magazine rifles anymore. It's a strange situation where gun owners are giving legal advice (ie "be really sure you can't take the nut off without a tool, so you stay within the law!") and mums the word from the state. Matt Corwin was really "ruffed up (as in arrested and jailed)" but not prosecuted. Is enforcement of AW laws on hold?

bwiese
12-09-2007, 12:50 PM
Cato

Yes, there have been a few 'prosecutions' meaning charges filed and the case kinda-sorta gets started, but in all cases except 2 I've heard of (and I believe I have heard of all OLL-related cases except for blatant idiots with full AWs) charges were dropped when mounds of NRA paperwork etc presented.

Or, the judge kicks the case because prosecution relies on DOJ support that just plain evaporates.

Two cases with some press/news down in SoCal (BWO's/Matt Corwin, as well as another fairly quiet Calgunner) are ongoing - and they are appropriately represented. (Trutanich-Michel LLP).

BWO's case seems to go from continuance to continuance and trial has not apparently started. The other case seems to be "not moving along much" and at even slower pace.

Bottom line: zero convictions, zero full complete trials. Other than legal fees, the worst loss is grief and the occasional "let's stop the case here if you give us the rifle" which is a no-brainer decision for a $600 rifle.

One late 2005 case up in Sierras - homebuilt receiver, pistol format - was apparently resolved via AB2728; that case had some color (lite drugs in car, etc.) The person who built the receiver was not really 'gun & gun law aware', as I recall. Dunno if or how deeply DOJ assisted in this case, they clammed up with a PRAR, cited something about 'investigation' as I recall.

Legislative analysis of AB88 a few years ago - before OLL stuff really started - indicated that there's 50-60 (can't remember exact number) felony AW charges resulting in conviction for 12280. Severe cases with other primary charges (drugs/burglary/murder/assault, etc.) likely get the AW charges dropped en route to pleas for the major charge(s) unless the AW serves as an escalator issue. There probably were some 12280 charges (guessing a similar amount, order-of-magnitude-wise) that were dropped from felony to misdemanor or that "just went away" due to arrest/evidence chain flaws.

Addax
12-09-2007, 1:17 PM
Bill,

Regarding BWO's constant continuance's, what is the reason for this?

Is the DA or DOJ trying to to buy time?

bwiese
12-09-2007, 2:17 PM
Bill,

Regarding BWO's constant continuance's, what is the reason for this?

Is the DA or DOJ trying to to buy time?


I have no direct info, but reasonable some surmises can be made:

Firstly, I don't think DOJ is much involved in this, since it involves LA DA office...

....the DOJ gun guys under Lockyer+Rossi completely discredited itself w/LA DA office with the Pomona gunshow stings. DOJ borrowed a bunch of DOJ BNE narco guys who didn't know sh*t from shinola about guns. (It wasn't all Iggy.)

These cases fell apart, and from what I've heard, the DOJ FD/BoF and LA DA office haven't swapped much honey since then ;)

In cases like this, defense usually 'waives time' - meaning they agree to waive right to speedy trial. It's a balance-of-forces gig: while in theory that also offers the DA more time to develop a case, generally it instead benefits defense - more time to prepare and not do a rush job, prospective witnesses move or die or taint themselves thru further criminal conduct, turmoil in DA office leads to misplaced files or chain of evidence corruption, etc. It may allow pretrial publicity to dissipate, too. [Think of the news reports of BWO's arrest, for example - nice thing to distance a bit, regardless of their inaccuracy.]

And the DA office inexorably gets new cases daily, so older 'stale' cases have more motivation to be 'cleared from the books' in some manner (plea, dismissal, pretrial diversion/adjudication, etc.)

In addition, the way most bigger DAs offices work, little time is spent by one individual DA one case if it's not a big murder case, high dollar crime, "crime that shocks the senses" (kids/level of brutality), etc. Packets of cases move around between junior DAs, whose general goal is to get a plea. So BWO's case may already have had (I really don't know, but another dismissed OLL case in another county had similarities to what I recount here) 3? even 5? different junior DAs 'inheriting' it and shuffling it between their caseloads.

Perhaps some continuances have been requested by defense if prosecution is asserting something new, dunno. Many if not all continuances have probably been generated by prosecution - simply due to staffing/workload, and they can get away with it since defense has 'waived time'. Some continuances may have been related to, "oh, geez, this is more detailed than I thought, and I need to ask the crime lab guys about these guns", etc.

Addax
12-09-2007, 2:25 PM
Thanks Bill,

Wow, the wheels of justice really do grind slowly..

I have no direct info, but reasonable some surmises can be made:

Firstly, I don't think DOJ is much involved in this, since it involves LA DA office...

....the DOJ gun guys under Lockyer+Rossi completely discredited itself w/LA DA office with the Pomona gunshow stings. DOJ borrowed a bunch of DOJ BNE narco guys who didn't know sh*t from shinola about guns. (It wasn't all Iggy.)

These cases fell apart, and from what I've heard, the DOJ FD/BoF and LA DA office haven't swapped much honey since then ;)

In cases like this, defense usually 'waives time' - meaning they agree to waive right to speedy trial. It's a balance-of-forces gig: while in theory that also offers the DA more time to develop a case, generally it instead benefits defense - more time to prepare and not do a rush job, prospective witnesses move or die or taint themselves thru further criminal conduct, turmoil in DA office leads to misplaced files or chain of evidence corruption, etc. It may allow pretrial publicity to dissipate, too. [Think of the news reports of BWO's arrest, for example - nice thing to distance a bit, regardless of their inaccuracy.]

And the DA office inexorably gets new cases daily, so older 'stale' cases have more motivation to be 'cleared from the books' in some manner (plea, dismissal, pretrial diversion/adjudication, etc.)

In addition, the way most bigger DAs offices work, little time is spent by one individual DA one case if it's not a big murder case, high dollar crime, "crime that shocks the senses" (kids/level of brutality), etc. Packets of cases move around between junior DAs, whose general goal is to get a plea. So BWO's case may already have had (I really don't know, but another dismissed OLL case in another county had similarities to what I recount here) 3? even 5? different junior DAs 'inheriting' it and shuffling it between their caseloads.

Perhaps some continuances have been requested by defense if prosecution is asserting something new, dunno. Many if not all continuances have probably been generated by prosecution - simply due to staffing/workload, and they can get away with it since defense has 'waived time'. Some continuances may have been related to, "oh, geez, this is more detailed than I thought, and I need to ask the crime lab guys about these guns", etc.

Fjold
12-09-2007, 2:26 PM
If you have all your ducks in a row legally with a featureless build or a bullet button wouldn't it be to your advantage not to waive time?

Don't give the DA time to drag it out and build up a lot of your own legal fees.

bwiese
12-09-2007, 2:35 PM
If you have all your ducks in a row legally with a featureless build or a bullet button wouldn't it be to your advantage not to waive time?

Don't give the DA time to drag it out and build up a lot of your own legal fees.

Naah, I think the primary goal is to not get to actual trial. What if you have a funk-arsed judge - even though the law is on our side? That risks going thru an appeal to refute that judge.

I think if you ask any attorney (regardless of pay structure - flat fee or hourly) they always advise to waive time.

I think the belief is it always helps to have bureacracy of DA offices on your side, and for things to get stale enough it's not worth fighting.

hoffmang
12-09-2007, 6:01 PM
For someone with $$$ wherewithal, not waving time might be a good strategy. You can't waive time until you know who your judge is so that mitigates a lot of the really bad judge risk. Arguably you want a ban judge so you can win on appeal...

-Gene

JALLEN
12-09-2007, 9:24 PM
Well, I always preferred winning at trial so there would be no appeal necessary. Appeals are for losers, and if the DA loses at trial, there is no appeal, generally.

I have heard of strategic and tactical explanations, but these always seemed to be of the "making a virtue of necessity" variety.

Taking a chance on overturning a conviction is really putting your whole wad on "red."

artherd
12-09-2007, 10:24 PM
I think if you ask any attorney (regardless of pay structure - flat fee or hourly) they always advise to waive time.

I think the belief is it always helps to have bureacracy of DA offices on your side, and for things to get stale enough it's not worth fighting.

Depends. I've beaten several cases by not waiving time, the DA could not get their house in gear in time to nail me, so the case died pretrial. They had no case to begin with, but I was fully prepared to hit them at trial and appeal if necessary (unlawful speeding ticket of all silly things.)

Remember also that an appeal is not a de novo (new trial.) Generally, Appellate courts do not re-examine the matters of fact in appeal, they only examine wether the trial court erred as a matter of law.