Thursday, March 27, 2014

A Case of American Blind Justice as Arlo Guthrie Would Say‏

via ssgmarkcr

 I wanted to send this to you because its a case of pushing the envelope so far, it would be comical if it didn't have such a negative effect on an entire family.  During the course of a full up raid on the home of Mark Witaschek.

"After entering the house, the police immediately went upstairs, pointed guns at the heads of Mr. Witaschek and his girlfriend, Bonnie Harris, and demanded they surrender, facedown and be handcuffed."

"His 16-year-old son was in the shower when the police arrived. “They used a battering ram to bash down the bathroom door and pull him out of the shower, naked,” said his father. “The police put all the children together in a room, while we were handcuffed upstairs. I could hear them crying, not knowing what was happening.”

    After searching the home for two hours, this is what they found,
"The police found no guns in the house, but did write on the warrant that four items were discovered: “One live round of 12-gauge shotgun ammunition,” which was an inoperable shell that misfired during a hunt years earlier. Mr. Witaschek had kept it as a souvenir. “One handgun holster” was found, which is perfectly legal.
“One expended round of .270 caliber ammunition,” which was a spent brass casing. The police uncovered “one box of Knight bullets for reloading.” These are actually not for reloading, but are used in antique-replica, single-shot, muzzle-loading rifles."

    Fast forward six months and,

"In a surprising twist at the end of a long trial, a District of Columbia judge found Mark Witaschek guilty of “attempted possession of unlawful ammunition” for antique replica muzzleloader bullets.
Judge Robert Morin sentenced Mr. Witaschek to time served, a $50 fine and required him to enroll with the Metropolitan Police Department’s firearm offenders’ registry within 48 hours."

    What makes this all the more strange is that apparently he was convicted of possessing ammunition for a firearm which doesn't even have to be registered in DC, namely a black powder muzzleloading rifle.  His attorney says they will be appealing the conviction, though I'm still trying to figure out how it even made it to trial.
    What immediately came to mind was Alice's Resteraunt Massacre and the 27 8x10 color glossy photos and the judge with the seeing eye dog. 


  1. "What makes this all the more strange is that apparently he was convicted of possessing ammunition for a firearm which doesn't even have to be registered in DC, namely a black powder muzzleloading rifle."

    My initial theory was that the theory of prosecution was that the .45 caliber bullets COULD be loaded into a regular casing even though that was not what they were made for or purchased for, and that they were using an implication that this was the intent for them to proceed. This would be in line with miscarriages of justice I've seen where empty soda bottles with NO meth and no meth precursor chemical residue in them were still used to charge and convict people of intent to manufacture meth.

    However, if you look at the second page of Miller's piece, the theory of prosecution appears to be even more ludicrously tenuous than this: they produced a bunch of evidence of muzzle loaders (models not owned by Witaschek) that could be converted into single shot firearms using modern ammunition.

    The judge should have tossed this information out as completely irrelevant on numerous grounds, but he listened to it and then issued his ruling. In making his ruling, the judge made another comment that either illuminates his own thinking, or maybe something Miller didn't tell us about the prosecutor's presentation--he commented on how these are modern hollow point bullets, not musket balls.

    And so, unless this ruling is reversed on appeal, DC now has a precedent that indicates that you better not own sabot rounds for your muzzle loader, and that would make me worry (until further precedent is laid down) about mine balls--state of the art technology right before the Civil War.

    Mike, Will you admit that this, at least, constitutes creating a minefield that is ludicrously complicated for gun owners? They find out that they can own a muzzle loader and don't have to register it--and that they can have ammo for it, but unless they have been paying attention to this case, consult a lawyer to research the law, or research the case law themselves, they don't know that they can have musket balls, but not sabot ammo, and that mine balls are a potential gray area that are probably best avoided.

    I also want to point out that musket balls are not as accurate out of a muzzle loader as mine balls and sabot ammo. They also don't do as much damage as quickly as these modern bullets, so even if you hit your mark with them, the deer or whatever animal you're hunting may not go down as quickly. Hooray for stupid prosecutors, taking away tools used for making a clean kill.

    1. Of course I admit this case is ludicrous. How unreasonable do you think I am?

    2. Of course, given the author of the article, it's hard to believe we've been given all the facts.

    3. How unreasonable do I think you are, Mikeb? Name the most extreme level of unreasonableness, and add ten to it.

    4. Mike,

      I don't know. I've never heard your position on banning possession of ammo or ammo components as is done in D.C., NJ, etc. All I know is that you were unsympathetic to the guy who pulled over for a nap in NJ rather than pushing on through the state, and got charged with violating their gun possession laws. Their interpretation is that you lose your federal protection of just passing through if you stop for a nap, for gas, to pee, or for any other reason.

      To me that sounds pretty darn unreasonable and on par with this.

      As for whether Miller would give us all the facts, I found her write up to have more facts and intelligible details than many write ups of court cases. I tried to find other reports to compare this with, but it looks like no other media outlets are covering the case--all I found were blogs and even local news outlets, citing Miller's piece. You imply that Miller would manipulate the story and give us a skewed view, but the rest of the media are doing us a disservice by not even reporting on the case, skewing the media picture as a whole to appear as if there are no cases like this going on.

    5. Her write up was intentionally manipulative by omitting the domestic violence allegations against the man. Something like that could explain the extreme behavior of the cops, but Miller painted him as the poor persecuted gun owner who was unfairly treated badly.

    6. Mike, the allegations were mentioned quite clearly in the first article. And also mentioned was the judge's finding no merit in the allegations. Miller then covered the trial. My guess is that her neglecting to mention it again was because the domestic assault allegations couldn't be proven.

    7. Those allegations, which were found groundless, only explain how the initial search happened. They have no bearing on the final verdict or the analysis of the law.

      Strike that--they SHOULD have no bearing on the final verdict and analysis of the law--of course, this judge has shown himself to be so incompetent, it wouldn't be surprising if he inappropriately took old false allegations into account.

    8. Are you guys really saying that her not mentioning those allegations was not a purposeful attempt to increase sympathy for his plight? C'mon, guys. Admit it. She's as good a spin doctor as there is for your side.

    9. And again--Those allegations were dismissed as having no merit, so what's the point of bringing them up to smear the man? How does it impact the appropriateness of the verdict here?

      You guys just keep bringing it up to smear the man and try to spin away from the fact that he was convicted on charges you have admitted are ludicrous.

    10. And as Ssg. pointed out, she Did mention them back when it was relevant. Of course, you keep ignoring that because it doesn't fit with the narrative in your head.

    11. "Are you guys really saying that her not mentioning those allegations was not a purposeful attempt to increase sympathy for his plight?"

      As I said in my earlier comment Mike, Miller mentioned it in her first article, in about the fourth paragraph I believe. She also mentions it in other articles, giving many more details that the media matters article. In fact, with so many "facts" supplied by Miller, shouldn't it have been easier for the "respectable" media matters "journalist" to bring any supposed fabrications by Miller to light? But all they were able to say was he was accused. As opposed to Miller who supplied this in an article just last month.

      " Mr. Witaschek’s ex-wife, Gabriella Landinez, told police in May 2012 that her estranged husband had unregistered firearms in the home, and he said that he said he would kill her on the phone one time.
      The police never seemed to have investigated the matter. Mr. Witaschek denies ever having guns in D.C. and making a threat.
      A temporary protection order was granted ex parte (without Mr. Witaschek answering the complaint.)
      But in court, Judge Jose Lopez denied Ms. Landinez’s request for a civil protection order (CPO) (and financial support) in Aug. 2012, saying there was no evidence of a threatening phone call.
      “There’s no history of violence in this family,” the judge said. “There is no history of that type of manipulation in this family to lead to any inference that he would have said that statement…”

      Your argument about Miller mentioning these allegations doesn't hold water. Laci seems to have worked hard to not notice it earlier.

    12. So, Mikeb, would Miller's omission, in one of her articles, of the discredited allegations against Mr. Witaschek be somewhat akin to the New York Times' decision to not mention the word "gun" in their coverage of Hero of "Gun Control" Leland Yee?

      Well, since my questions apparently frighten you, due to the contained "accusations" which only you can see, I'll answer it myself. Miller's decision to stop repeating the meritless allegations is nothing like the NYT editing the most newsworthy part out of the Associated Press headline.

  2. Also, this is on a slightly different aspect, so I'll stick it in its own comment: in making his ruling, the judge said, "I’m persuaded these are bullets. They look like bullets. They are hollow point. They are not musket balls."

    Well of course they are bullets, genius! So are musket balls. Bullets are the projectiles. What's illegal under the law is ammunition (and ammunition components such as bullets or brass under the current D.C. interpretation) for a gun that should be registered but is not.

    So the question here isn't "Are these Bullets?" Instead, it's "Are these bullets made for use in a gun that he owns, was supposed to register, and didn't." The judge sort of understood this since he realized that at least some form of ammunition for this gun was not illegal in D.C., but he created, from ignorance, stupidity, or malice, a new test that found that these were too modern an iteration of muzzle loading projectiles and that rather than being acceptable projectiles, they were "bullets."

    And this yet another reason to be nit-picky about details of terminology--what is a bullet, what is a cartridge, etc. Otherwise, you can get judges who use the terminology in a sloppy way, misunderstand what they're dealing with, and make shitty rulings like this.

  3. Finally, I want to point out a few last things about two of the theories of prosecution possible which I mentioned above.

    1: The idea that you could load these bullets into a regular .45 casing--yes, you could, but you could do the same with a musket ball that the judge said was acceptable.

    2: So other muzzle loaders can be modified, and maybe this one could too...
    Sure. Course, but that standard anyone could modify some pipe lying around to make a passable firearm--ever heard of the shotguns made by Filipino Guerrillas during WWII?

    And as a parting laugh, look at Miller's page 1--the silliness about it being dangerous to open the shotgun shell. Please. Cut off the crimped end, pour the shot into an evidence baggie, pull out the shot cup and toss it in too, then dump the powder, if any, into another evidence baggie.

    Course, this was much ado about nothing--lack of powder, like lack of working primer, would render the shell inoperable. The dud was already an inoperable shell unless someone opened it, dumped everything out, pushed out the primer, put in a new one, and then reloaded the shell.

    Course, under this judge's ruling on the muzzle loading bullets being bullets, the inoperable shell would still be, at least, "attempted possession of ammunition." The fact he didn't rule this way and just left it hanging shows a total lack of thinking through his rulings, or that he was hopelessly out of his depth here. Think about it--a dud, but fully assembled piece of modern ammunition for a gun covered under the law is not attempted possession of ammo, but bullets for a gun not covered by the law are on the grounds that a machinist might be able to modify this gun and turn it into something that fired modern ammunition--which these bullets are not intended to be a component of.

    Ah, the minefield. This is why I rarely visit D.C. and never stay there.

  4. I went to fact check this and found that this is the side of the story pushed by right wing media (The Washington Times being owned by Unification Church's Sun Myong Moon). Anyway, there is more to this as would be expected:

    "Witaschek's legal problems began in the summer of 2012. Following alarming allegations that Witaschek threatened his "estranged wife" with a gun, police visited his home on two occasions. During both visits, police found unregistered ammunition in Witaschek's home. In Washington, D.C., only individuals who have registered firearms may possess ammunition. Witaschek was charged with violating Washington's gun laws. The charge from the first police visit was thrown out because even though Witaschek consented to a search, the visit was conducted without a warrant. Witaschek was offered a plea deal that included no jail time and a $500 fine to resolve the charge from the second police visit, which was performed with a warrant. Witaschek rejected the offer and plans to go to trial on the remaining charge."

    1. I also gave a look at what the more reputable News source, The Washington Post, said about this matter:

      No mention of this case.

      Let's see--do I trust the Moonies/Loonies?

      Or the Washington Post?

    2. We've shown before that Emily Miller is a shameless shill for the gun-rights movement. I wouldn't believe anything she writes.

    3. So, you dismiss Emily Miller as a "shameless shill for the gun-rights movement", but have nothing to say about mediamatters' Timothy Johnson, the author of the opposing piece, whose byline bio includes "...time at the Brady Center to Prevent Gun Violence Legal Action Project and the Coalition to Stop Gun Violence." So much for your intellectual honesty, and thus your credibility.

    4. Why would I criticize the Media Matters guy with whom I agree? You accuse me of intellectual dishonesty because I criticize those I disagree with but not those I agree with.

      That's pretty stupid, Al.

    5. Ah, so potential bias in someone you don't agree with makes them a bad shill, but potential bias on the part of people you agree with does nothing to damage their credibility?

    6. Well, Mike, I actually laughed when I read your response; unfortunately, I don't think you intended to make a joke. Yes, you basically nailed the definition of intellectual dishonesty: when you seek to discredit your opponents for some reason, but fail to acknowledge that your allies have the same faults, you are being intellectually dishonest. The fact that you think "that's pretty stupid" is so sad it's funny.

    7. Wait a minute, you hypocrites. I don't hear you guys equally criticizing both sides. Al made a nonsensical attack of me using the words "intellectual dishonesty," something he probably read on a gun blog and though sounded cool, and now you guys are doubling down on it, insisting it makes sense and that YOU would never do something so despicable. You guys are full of it.

    8. What hypocrisy? I'll freely admit Miller is pro gun and that it's appropriate to double check her based on that potential bias. I double check Fox based on my knowledge that they'll be biased toward the right and MSNBC because I know they'll be biased toward the left.

      YOU are the one who called Miller a shill and implied that we couldn't trust her reporting. You are the one who then turned around and asked why you would ever want to criticize a guy for being a potential gun control shill. And you and Laci both seemed to miss the fact that the Media Matters report you were trying to discredit Miller with actually used her past reporting on this subject as the source of its information about the old allegations.

      It's beginning to look like she did a better job of putting aside her bias and being a good reporter since she told us about these allegations along with everything else.

  5. OK, not only am I admitted to practise law in WDC, I have experience of the US Attorney's Office and how they prosecute gun crimes having been one of the two people who ran the Operation Ceasefire program in the mid-90s.

    Saying the DC cops just busted into the guy's house and started searching his house makes me question the report. After all, the DC cops have their hands more than full with "real criminals" to hassle a "law abiding citizen".

    or in this case, "an otherwise law abiding citizen" (i.e., criminal since it's those pesky laws that keep them from being "law abiding").

    The media matters account sounds much more plausible to me in that there was an allegation that this person threatened another person with a gun, which is curiously absent from the right wing accounts. That would have given MPDC a reason to pay a visit.

    Next, the media matters account mentions that there had been an offer, which Witaschek didn't take. He opted to go to trial despite the fact that he was caught with the items in question.

    As a lawyer, I can tell you that you are taking your chances when you go to trial. In this case, he went to trial and got hammered as opposed to taking the deal.

    Another point, I am curious as to why Emily Miller is so enthusiastic about defending a domestic abuser? Is she so geared to the "gun rights" ideology that she forgets that she is a woman and more likely to suffer if there is a gun present?

    Doesn't say too much about Ms. Miller.

    1. I should also add that I no longer have access to the files, but I would guess that the Media Matters account is far more accurate, which is why the reputable media are avoiding this.

    2. No, Miller doesn't forget that she's a woman. She's smart enough not to believe your nonsense assertions about the risks of gun ownership.

    3. "Another point, I am curious as to why Emily Miller is so enthusiastic about defending a domestic abuser?"

      Laci, do you have any information to dispute this portion of the article I cited? Hopefully something more substantial than "I don't like Emily Miller" or the Moonies own the paper.

      "Police based their search on a charge made by Mr. Witaschek’s estranged wife, who had earlier convinced a court clerk to issue a temporary restraining order against her husband for threatening her with a gun, although a judge later found the charge to be without merit."

      As the Media Matters article stated, this all took place over a year and a half ago, yet, all they can say is accused. No mention of any domestic assault charges, or even that Miller's article from six months earlier was inaccurate because the protection order hadn't been dismissed. This would suggest that Miller was telling the truth.
      I'm not a lawyer, but for the audience here, can you describe what the term, "without merit" means? Could it mean that possibly his estranged wife lied when the protection order was requested. This has been known to happen in a contentious divorce.

    4. Mike and Laci,

      "Another point, I am curious as to why Emily Miller is so enthusiastic about defending a domestic abuser?"

      What the Fuck, Laci? Has he been convicted of domestic abuse? Media Matters told us about the allegations, but even they only called them allegations. There have been no charges or evidence, just allegations--allegations which hold little water considering the wife claimed she was threatened with a gun, and it turned out that there were NO guns in the District.

      It's obvious why you guys like the Media Matters report--it smears the guy you don't like with unproven allegations. You want to be able to ignore this case, because after all, he's just an abuser. I can see many activists feeling that way, but Laci is a lawyer and should know better--you don't dismiss a case just because the defendant is a douche, because otherwise prosecutors find douches and use prosecution of them to advance their encroachments on our rights--look at 4th Amendment jurisprudence to see how this has been attempted and done repeatedly.

      Also, none of the information given by Media Matters contradicts the relevant legal issues in this case. The DO misstate the facts about the Gregory incident, claiming that there was a miscommunication with police, when in reality NBC was told no quite clearly.

      But since Laci seems to believe that Witaschek was guilty, and since Mike agrees with him about Miller being so untrustworthy that he can't believe her account, please tell us your interpretations of why Witaschek was in the wrong and should have been convicted as he was.

    5. I agreed right away the charges and conviction sound absurd, but the "unproven allegations" do add some possibilities to the equation.

    6. Please--explain how the unproven allegations, later found to be without merit, add anything to the equation of whether he was guilty or innocent?

    7. And if you feel like speaking for Laci since he probably won't show up, tell us why Miller should be shamed for her defense of a domestic abuser--especially when said individual had the abuse charges dropped because they were "without merit."

    8. I don't know, and I don't think you do either. Isn't it possible that "without mert" are code words for plea bargaining, or getting off on a technicality, or any number of other possibilities. Emily Miller should have included it in her piece, that is if she were a real reporter and not a shill for the NRA.

    9. No, Mike. Charges dismissed because they were found to be without merit means that the judge saw no proof. If there was a plea bargain, we would have been told that he plead guilty of some reduced charge. If he got off on a technicality, the report would have been that charges were dismissed due to improper _________. Etc. Etc. Etc.

      And as we keep noting: Miller included it in previous articles when she was reporting on the raid--in fact MEDIA MATTERS CITED HER AS THEIR SOURCE ON THE ALLEGATIONS.

      She just left it out of a report on this decision which was made after the allegations were found to be groundless and on which those allegations had no bearing.

      So I'll ask again: What bearing do those allegation have on the propriety or impropriety of this "ludicrous" decision? And how would it have made sense to smear him by bringing them up again when the discussion is about the judge's and prosecutor's legal gymnastics in this case?

  6. I am curious as to why a D.A. for the District of Columbia is so enthusiastic about defending a domestic abuser? If they are so geared to the stopping the "gun rights" ideology, why would they trade this “credible” woman's safety for $2,000 a month and health insurance.

  7. Mr. Dog (may I call you Laci?), this man is *not* known to be a domestic abuser, and the "...allegation that this person threatened another person with a gun..." is *not* "...curiously absent from the right wing accounts." This is addressed in this Miller article:

    Ironically enough, this is the article that the mediamatters spin doctor linked to substantiate his claim of "alarming allegations"; presumably he hoped that his readers would, like you, fail to read his source and notice that it was actually just one discredited allegation. Since you clearly missed it in your 'due diligence', here's the paragraph from the article I cite:

    "Police based their search on a charge made by Mr. Witaschek’s estranged wife, who had earlier convinced a court clerk to issue a temporary restraining order against her husband for threatening her with a gun, although a judge later found the charge to be without merit."

    Thanks for reminding us that lawyers are no more immune to prejudice, or inadequately researched opinions, than the rest of us.