Originally published at: https://boingboing.net/2018/08/24/killer-released-from-prison-be.html
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An authoritarian is one who follows the law as if it was a sanctified code of conduct. A judge is one who follows the intent of the law to provide justice to the community.
What we have here is a simple minded authoritarian.
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It is kind of weird that it matters how you murder someone. How many murderers are kicking themselves right now for shooting someone instead of stabbing them to death?
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I’ve wondered what it takes to forfeit the title “gentleman” around these parts.
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Based on how I’ve seen it used again and again on bb, I would assume you would have to be a decent human being. Only horrible people are “gentlemen” in these parts.
As for this ruling, wow. Just… wow. Are they trying to set a precedent that will exonerate Trump after his anticipated 5th Avenue shooting spree?
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I appreciate it’s fun and easy to pick on the judges in a case like this. But if you read the linked article, it’s clear that even the prosecution accepted that under existing law Birdinground couldn’t be held:
Assistant U.S. Attorney Lori Harper Suek wept as she told the court, including the victim’s three daughters, that she had no legal basis to ask to keep Quinton Birdinground Jr. behind bars.
Where the law sucks, the solution is not to blame the judge for applying it. Having a judge who just did whatever they wanted, regardless of what the law says, would be worse.
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Judges are bound by Supreme Court precedent, and here it looks like she’s applying Johnson v. United States to the guy’s sentencing. She also doesn’t seem too happy with the result, either, seeing as how the AP story reports that she encouraged the prosecutors to appeal her decision.
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Based upon what? If a judge is just and fair, I don’t see that the tradition of precedent should prevent them from ensuring justice is served. Our laws have said people can own other people. They have affirmed the right to kill a person for wishing to be free. This nation has a long history of bad laws being ignored by just judges.
Anybody on team “we don’t need new gun control laws” care to take on this one?
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Ahhhh… but what about when the judge is bought and paid for? Then where would you turn?
As long as corruption is a thing, the letter of the law might be your Obi-wan.
For the curious, it looks like the judge is specifically applying 18 U.S.C. § 924(e)(2)(B), which says:
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another;
Section (ii) doesn’t apply to the case as the defendant didn’t commit burglary, arson or extortion nor used explosives, and the rest of (ii) was ruled unconstitutionally vague by the Supreme Court in 2015 in Johnson v. United States (opinion by Scalia, with only Alito dissenting).
That leaves (i), the use, attempted use or threatened use of force. The problem here is that the defendant insists the gunshot was an accident and looks to have been convicted of gross recklessness. Since that means he wasn’t actually trying to use force, (i) doesn’t apply either.
ETA: I am not an attorney, and this is my best guess on what’s going on based on media reports.
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From the linked article:
The full ramifications of the 2015 Supreme Court ruling are still being determined, and it’s already come up in other cases.
The justices overturned an enhanced sentence given to Samuel Johnson, a white supremacist whose crimes included being a felon in possession of a firearm. Writing for the majority, Justice Antonin Scalia said Johnson’s right to due process had been violated because the 1984 federal law on which his sentence was based included sections so vague that the law could be misused.
Numerous appeals are pending to determine how broadly the ruling applies to other federal laws that use the same or similar language to define a violent felony, the federal prosecutor in Montana said.
FWIW, I can’t imagine waving around a gun unless I planned on shooting someone. If it went off while I was waving it and killed the person I was threatening, it’s still my damned fault. Ugh.
Hopefully the law will be reevaluated.
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It was found to be the defendant’s fault in this case as well, and that conviction stands. What was overturned was an additional sentence for using a gun in a violent felony. The defendant is being released because he’s already served the sentences for assault and second degree murder.
Right.
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