Defendant is accused of having 'militia' weaponry

[cassandrasdaddy]

oh don't get me wrong

i feel for this guy and think the law blows but hes doing a how not to video of how to handle going to court. as an example take the rosa parks case . that was well planned and a good outcome that helped foment change. now this case we have a guy who comes off as a clown to the vast majority of folks in the us.and him as poster child further marginalizes the cause

 

[Keith Wheeler]

Arg. I wish I understood more law. I will forever kick myself for not taking the MBA-JD route when I was in grad school.

Anyway, this "Hendren ruled the defense can present evidence the machine guns and shotgun were necessary for a state militia."

The state aspect.

How important, if at all, will the Arkansas state constitution be in this case?

Sidenote:

Well cool deal. I was digging around for Arkansas state law (http://www.arkleg.state.ar.us/NXT/gateway.dll?f=templates&fn=default.htm&vid=blr:code) and found that our arcance requirement to notify the state police if you posessed a "machine gun of .30 caliber or larger" was repealled.

 

[LAR-15]

oh don't get me wrong

--------------------------------------------------------------------------------

i feel for this guy and think the law blows but hes doing a how not to video of how to handle going to court. as an example take the rosa parks case . that was well planned and a good outcome that helped foment change. now this case we have a guy who comes off as a clown to the vast majority of folks in the us.and him as poster child further marginalizes the cause

Rosa Parks broke the law at the time.

 

[cassandrasdaddy]

no kidding?

i vaguely recall that but when she did she did it in a way calculated to win respect and foment positive change. with a legal team and plan ready. its never good to use a tax lawyer on a criminal case. ask mike tyson. this case reeks of a plan inspired with good intent but lacking in the planning and followthrough to suceed. remember the lawyer doesn't do the time no matter how involved he seems he gets to go home

 

[Keith Wheeler]

this case reeks of a plan inspired with good intent but lacking in the planning and followthrough to suceed.

Yeah. Go to the guy's website and read his "silver bullet" document. It's arcance and rambling, which is how I'm afraid his defense will go.

 

[elliost]

Fincher and the 2nd Amendment

There is so much wrong with this case. Like why can't the Constitution be used in defense? Why so was bail set so high when 6 illegals arraigned at the same time were released w/no bail (they'll appear for trial, right?).

http://proliberty.com/observer/20061212.htm

 

[Bartholomew Roberts]

By the way.......Does anybody have a link to the brief that the NRA submitted in Fincher's defense? Surely it must be around somewhere.

Amicus briefs wouldn't be submitted at the district court level, they would be submitted at the appellate level. Fincher has to lose this case first.

It looks like one small part of Miller is getting cured. No more "In the absense of any evidence to the contrary" bull flop.

The militia argument was already heard in the Hale case I pointed you at earlier. It was also heard in the Nelson case where the decision was essentially "See Hale." One thing that Fincher will hopefully be able to distinguish from Hale is that he is not a violent white supremacist. However, I don't know how much difference that will make since the Hale decision just out and out says that being a member of a private militia is not enough justification. It doesn't distinguish between whether you were a helpful, friendly militia or a gang of white supremacists.

Stilley is highly likely to lose this level of the case and most of this will be about making sure to get in evidence that he can be heard on appeal. This is why they having all the sidebar discussions. The prosecutor is working to exclude evidence and Stilley is working to get it admitted. Also, evidence that Stilley may want to present concerning the Second Amendment may have to be presented at sidebar because the judge considers it a matter of law.

There is so much wrong with this case. Like why can't the Constitution be used in defense?

The Constitution can be used in defense. The argument is over whether the jury can hear that testimony. If it is a matter of law, that is for the judge to decide. If it is a matter of fact, that is for the jury to decide. The prosecutor is arguing that by making a Second Amendment argument, Stilley is arguing a point of law that the judge should rule on and the jury should not hear that argument.

The rationale between the law/fact distinction is that it makes for consistent law. Otherwise, the law changes every time you have a different jury. Fincher might get lucky and draw a jury of THR members and get off scot free. On the other hand, you might do the exact same thing and get 20 years in prison because you drew a jury of scared suburban housewives who believe whatever the state tells them on guns. Generally, people get unhappy when they can be sent to prison for 20 years depending on what the latest batch of citizens serving on a jury decided.

Usually a judge will give a jury specific jury instructions outlining how to apply the law and the jury decides any facts that are in controversy - like which witness to believe, etc.

The upside of this system is that it allows the judiciary to protect the minority from the majority and give more consistent law. The downside of this system is it reduces the power of citizens to challenge unjust laws by refusing to go along at the ballot box.

 

[glummer]

Unspellable

While the phrase "Jury of Peers" may not appear in the constitution it is in common law

Wrong country, wrong social class. I believe it refers to English nobility being guaranteed a jury composed of other nobles; no commoners. We have no such ‘Peers” here.

Deadin

you are no longer "impartial" as guaranteed by the 6th

The 6th, like the rest of the Constitution, applies to the government, not the people. The gov’t isn’t allowed to stack the deck.
And jury impartiality, I think, refers to impartiality regarding the defendant, not the law. (And, now that I think about it, wouldn’t impartiality mean you did NOT automatically accept the law, but had an open mind before the trial?)

ccw
“Constructive possession", I believe, just means you could control it if you decided to, no matter who technically owns it. If it’s your decision, you have constructive possession.

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Hendren said the government doesn't have to prove the guns were involved in interstate commerce in order for Congress to be able to regulate them.

?! That sounds to me like perfect grounds for appeal. Without the IC clause, what other basis is there for Federal regulation?

 

[Keith Wheeler]

"See Hale."

It is sad that a man who personally stated "black people should be used as spare parts" Foxtroted this up for us.

Sorry, that requires a bit more explanation.

Filcher is on the right path, but is "too little too late".

Hale wasn't on the right path, he was getting ready for a race war, and only used "the militia" as a last ditch defense.

 

[unspellable]

Peers

In England the titled nobility are referred to as "peers" and they do have the right to a jury of titled nobility or "peers". The concept of a jury of peers, however, has never been so narrowly interpreted. In particular, the commoner has the right to a jury of commoners. But as usually interpreted it means members of the same community and does not include prosecution's "right" to exclude members who may be knowledgable about the matter at hand without demonstrating that they have a probable bias. The intent of the founders was that a jury should be knowledgable about the matter at hand.

Today we have lawsuits in which contradicting "experts" testify to two exclusive opposite points of view on a techical matter. Neither the judge nor the jury has a clue as to who's right or what's what. Twelve civil engineers could better judge why the bridge collapsed than twelve people for whom deciding which TV channel to watch is a mental feat. But if you look like you can read above the tenth grade level you are likely to get kicked off the jury.

 

[scout26]

Hendren said the courts have found there's no private right under the Second Amendment to keep a machine gun; the Second Amendment gives a collective, not individual, right to keep and bear arms; and, the Second Amendment is aimed at protecting state-sponsored militias.

This I have a problem with. I hope the collective vs individual argument gets presented during the trial (if for nothing else then to hashed out in future appeals).

And for everyone grousing about this case. (Un)fortunately this man is willing to stand up for not only his 2A rights but also ours. Yeah, he may not be the poster boy we all want and this may not be the best case to go to trial for 2A/RKBA, but can we really afford to throw this guy under the bus (and have another anti-2A/RKBA precedent set) while we wait for a "better" case ????

 

[Bartholomew Roberts]

Hale wasn't on the right path, he was getting ready for a race war, and only used "the militia" as a last ditch defense.

Yes, unfortunately Nelson was part of that same group as Hale and was represented by the same lawyer (who made essentially the same arguments that he made for Hale). Hopefully, Stilley can distinguish Fincher from those cases to enough of a degree that he present a better argument that will find some traction; but it is going to be a longshot with the language in Hale given that most of those judges are still on the Eighth Circuit.

On the bright side, Nelson and Hale are the last two decisions in the Eighth Circuit to state that the right to bear arms is a collective one and in Hale, one of the three judge panel says he doesn't believe the Second Amendment is a collective right (though he still would have convicted Hale for illegal possession of machinegun). So maybe things are brighter than they look.

Yeah, he may not be the poster boy we all want and this may not be the best case to go to trial for 2A/RKBA, but can we really afford to throw this guy under the bus (and have another anti-2A/RKBA precedent set) while we wait for a "better" case.

Throw him under a bus? How do you figure? From my perspective, it looks like he crawled under the bus and then dared the bus driver to start it up and is now yelling "Hey! Help get this bus off of me!"

Right now, there isn't much I can do mitigate any anti-2A precedent. That job is up to Mr. Stilley who will have to make sure he has the best case possible for appeal on little notice and with whatever background on the subject he already has. His job in getting evidence introduced or objecting to evidence that was excluded will determine what the appeal has to work with.

In the meantime, I can throw my RKBA money at Fincher's legal defense or I can throw it at better thought out attacks like the SAF lawsuit. I can't do both; because I only have so much money. If you have suggestions on this dilemma I am interested in hearing them.

 

[LAR-15]

If Congress and Roosevelt Admin back in 1933-1934 had felt that the SA only protected a collective right to machine guns and such they would have banned individual possession of such weapons.

They didn't.

 

[cropcirclewalker]

Defense rests in trial of a local militia leader

http://www.kfsm.com/Global/story.asp?S=5928276

Fayetteville- The illegal weapons trial of a local militia leader will likely go to the jury Friday. Hollis Wayne Fincher is charged with possessing three homemade, unregistered machine guns and an unregistered sawed-off shotgun.

Day two of the Fincher trial was one of disappointment for Fincher's Defense Attorney and his supporters. More time was spent without the jury than with the jury in the courtroom.

Including when Wayne Fincher took the stand, hoping to have Judge Jim Hendren rule the militia argument could be argued to the jury.

After hearing lengthy testimony and cross examination while Fincher was on the stand, Judge Hendren ruled the militia Fincher claimed to be commander of in Washington County was not state sanctioned, and could therefore not be discussed in front of the jury as a defense.

Earlier, the Prosecution rested after putting two ATF officials on the stand to confirm the guns were illegal, according to federal standards. Upon cross-examination many objections by Prosecution kept Defense Attorney Oscar Stilley on a tight lease in his line of questioning.

The Judge's ruling on the militia defense left them with no witnesses to put on the stand before the jury...so the Defense rested.

Closing arguments begin at 8:30am Friday and deliberations are expected to begin.

So this is starting to look curiouser and curiouser. If I was on the jury I would be wondering what the heck is going on in the court when us jury guys sit in another room.

There has to come a point when we would start to wonder how come we can't hear the testimony. Like maybe he's being railroaded?

Now, tomorrow, they will walk into the courtroom and listen to closing arguments. Every other thing Stilley tries to say will get objected to, sidebars, instructions to ignore what he just said and then the judge will say, "INSTRUCTIONS! If the atf weasel says the gun was illegal you must convict. That's it, go ponder."

Then silence.

Yes, chances are, he's screwed.

But, maybe, just maybe there will be somebody on the jury who gets offended at being treated like an idiot.

Probably not.

The republic is doomed.

 

[cassandrasdaddy]

he needs more than 1

1 gets a hung jury anything less than aquittal is no win for rtkba. at present hes done more harm than good well intentioned but....

 

[Liberal Gun Nut]

No a hung jury is a victory. If more juries in these cases were hung juries proseuctors would be less and less enthusiastic about bringing these cases. These cases are nonsense. They are not about public safety. Prosecutors should stick to murder, rape, arson, and robbery. Everything else is a violation of our freedom, irrelevant to public safety, and a waste of time and money.

 

[Stretchman]

I still have one question. Who decided these guys were the militia, and who are they regulated by?

I don't dispute our 2nd amendment rights. They clearly state that

1) A well regulated militia is necessary for the security of a free state.

2) The right of the people to keep and bear arms shall not be infringed.

Why? Well, it can be interpretive. The consistent theme in the Constitution is that Government needs to be kept in check. And if Government exceeds it's boundaries as dictated by the Constitution, then it is up to the people to re establish a constitutional form of Government. The fact that there is a provision for a standing militia in each state tells us that the people need to be armed as well, in order to keep in check the standing militia, keep them from seizing property, conducting undue searches, forcing the people to house and quarter them, etc.

It can also be interpreted that the militia itself is comprised of the people, and that because of that, the people need to have weapons when called up into service. But that leads back to my original question. Who decided these guys were in the militia? Who are they regulated by?

Can the Government regulate the types of weapons that people can own? Can they regulate concealed carry? According to the law, yes. That isn't the question here. Never was.

Now, the fifty dollar question. When the people have decided that we cannot legally own machine guns, for a number of reasons, and the Government hasn't activated the militia, nor commisioned this guy to be Lt. Commander(?)
how can his defense even be valid? And if so, then the jury has a lawfull duty to convict due to the fact that his case doesn't ewven exist. To put it bluntly, he broke the law, and cited a circumstance by which he claims the law can be circumvented. Unfortunately, in his case, that circumstance doesn't exist. He has my sympathy. I personally think he's in trouble.

Stretch

 

[insidious_calm]

Is he not a part of the militia as defined by federal law? Isn't he charged with violation of a federal law? Why wouldn't the federal definition of militia be used? Me thinks that would be good grounds for appeal.


I.C.

 

[cassandrasdaddy]

hung jury

just means another trial and the prosecutors aren't the least bit worried about multiple trials.

 

[Liberal Gun Nut]

Prosecutors are worried about multiple trials. They do not like having to re-try. Trials are expensive. Every re-trial opens up more things to challenge on an appeal. In this particular case, a hung jury would also get a lot of attention, and make people think about juries and jury powers, including potential jurors on a re-trial.

Let us hope for at the very least a hung jury for this brave man who is fighting the right fight.

 

[cassandrasdaddy]

stick a fork in him

hes done. that said this will be a time when i will be cheerfully wrong but i doubt it. he threw down the gauntlet they are gonna beat him to death with it i hope all the folks encouraging him are gonna continue to support him and his family after the trial

 

[DKSuddeth]

can a defense be used in appeal that was not allowed at trial?

 

[Bartholomew Roberts]

can a defense be used in appeal that was not allowed at trial?

Yes; but part of the problem is that the reason the judge won't allow the defense at trial is because he is subject to existing precedent from previous Eighth Circuit decisions.

Previous Eighth Circuit precedent says:
1) Ownership of military weapons is a collective right under the Second Amendment, not an individual right.
2) That ownership must be related to a militia.
3) Membership in a private militia is not sufficient to justify ownership of military weapons.

United States v. Hale is the most recent case along that line and contains most of the reasoning the judges used. The judge is just following precedent from a higher court - the one Fincher will have to appeal to.

 

[scout26]

I remember reading this is book several years ago regarding some of the Post-war Nazi trials ......

-snip- The first of these was the trial of Otto Ohlendorf and 22 other defendants who commanded the Einsatzgruppen in 1947. This was a trial before a Tribunal of five judges at which the U.S. laws of evidence and substantive law were applied. The second notable trial was of members of Sonderkommando 4a (attached to Einsatzgruppe C) for 33,771 murders committed at Babi Yar on September 29-30, 1941. This trial was held in Darmstadt pursuant to German law in 1967-8. In both case the courts heard direct evidence of the crimes committed and convicted the defendants.

The argument that these trials were "kangaroo courts" or "show trials" is simply not tenable. Both were conducted with scrupulous attention to the rights of the accused to a fair trial. They were allowed to cross-examine the witnesses, challenge documents, and present evidence on their own behalf without limitation.

The attention that the courts gave to allowing the defendants to present a full defense is best illustrated by a famous incident at the trial of the leaders of the Einsatzgruppen. At one point in the trial, the prosecution objected to the argument that one of the defendants had been forced into duty with an Einsatzgruppe. Justice Musmanno, the presiding judge, overruled the objection stating:

The defense can introduce any evidence short of describing the lives of the penguins in the Antarctic and, if the defense can convince me the habits of the penguins are relevant evidence to the case, then the lives and times of those white-fronted creatures can also be admitted as evidence.

After the trial before the U.S. Tribunal, as a token of appreciation of the fair and honest manner in which their clients had been treated, the defense attorneys presented Justice Musmanno with a statue of a penguin. In subsequent trials, it was always the request of the defense that the "penguin rule" be applied. The penguin resided on a shelf behind Justice Musmanno's desk until his death in 1968.

I'd like to think that a US citizen could at least use the founding document of our system our government in his defense.......

But then again, IANAL, nor did I stay at a Holiday Inn Express last night...

 

[cropcirclewalker]

Yes, thank you Mr. Roberts, but like I said, The Hale opinion is flawed.

It should be easy for Stilley to show that since the Hale opinion claimed that Miller's conviction was upheld by the supremes when in fact it was only remanded that undue prejudice was put on Miller and thus on any opinion that relied on Hale.

We are still screwed.

It's like they do it on purpose.

Pretend that there is some hope by Paul running for prez and maybe we will forget the train of abuses up to this point.

We are still screwed.