Will Chris Christie Pardon Brian Aitkens?

[terraformer]

Smart in the sense that it got him released from prison, although it essentially eliminated any public pressure to get his conviction overturned. As a result, he'll almost certainly live out his life as a convicted felon, unable to so much as touch a round of .22lr, unable to vote in most states, and unable to do a few dozen other things the rest of us might take for granted. I'm glad he's free, but ...

Ken

I don't think he would have gotten a quick pardon so he would have spent more time in jail. The courts don't operate on public pressure so his appeals success would have had little to gain by his being in jail. This should be overturned in this round and the result will be to force it to a retrial which I doubt the prosecution will take up. If they do, he will likely win at retrial.

He can also appeal interlocutory (before the retrial) the constitutionality of the laws construction because it is broadly written and makes what will likely be held constitutionally protected behavior an affirmative defense. US v. Herrington in the DC court of appeals applying Patterson v. NY made it clear that one can't have laws that make illegal presumptively legal activities when fundamental rights are implicated and then shift the burden to the defense to have to prove the affirmative defense applies to them and is valid. NJ does require that affirmative defenses are proven by the defense when the defense benefits so this applies here. I find it hard to believe that the act of transporting otherwise legally owned firearms will not be considered presumptively legal and protected activities at some point in the near future.

If handled right, this guy should not spend another night in jail and should walk away without a conviction.

ETA: Admittedly I am not a procedure guy. They may be able to appeal the constitutionality of the NJ law in this round and force the constitutional question to be answered this go around and prevent a retrial. Generally courts don't want to answer constitutional questions when they can deal with something more straight forward (here the availability of the affirmative defense) but if granting a retrial is the likely outcome, they may be able to appeal the constitutional question and force the courts to answer that as well.

 

[dcmdon]

Smart in the sense that it got him released from prison, although it essentially eliminated any public pressure to get his conviction overturned. As a result, he'll almost certainly live out his life as a convicted felon, unable to so much as touch a round of .22lr, unable to vote in most states, and unable to do a few dozen other things the rest of us might take for granted. I'm glad he's free, but ...

Ken

This is incorrect. The following is a post I did in another thread.
MODS - Maybe you should close down redundant threads.

Well, it never hurts to just pick up the phone and ask.

I called Gov. Christie's office and spoke with an Aid named Susan. She told me that at this point, Mr. Aiken was still a convicted felon.
I asked her "Was a condition of the commutation of the sentence that he not request a pardon or appeal the conviction?"

Her answer was an emphatic "NO".
She explained to me that there would have been more research on the part of the Governor and his Council to actually pardon Aiken and that since they knew they wanted to at least commute the sentence in tim for Christmas, thats what was done.

I followed up "So there is a chance that Gov. Christie will pardon Mr. Aiken in the future"? Her answer was "Yes, Definitely".
I also followed up, " Just to be crystal clear, there is nothing in the request for commutation of sentence that waives Mr. Aikens right to appeal the conviction, if he chooses to do so". She answered "Of course not".
Don

So they are free to file a motion with Christie for a pardon. Which will take longer for obvious reasons.
They are also free to actually appeal the court's decision in the first place. Actions on the part of the judge give Mr Aitken ample cause to request another trial.
Off the top of my head:
1) he did not allow Mr Aitken to introduce into evidence the fact that he actually called the Jersey DPS to inquire about their firearms laws. i.e. due diligence.
2) he refused the jury's request for the text of some relevant laws and instructed them to go simply by his definitions.

There's a lot more, but suffice to say, that if push comes to shove he will be able to appeal.