A New Trial for Olofson?

A New Trial for Olofson?

Via The War on Guns comes the news that an appeal has been filed in David Olofson’s case. For those of you with short memories, David Olofson is the Wisconsin man who was sent to prison for “transferring a machine gun” when the BATFE – after initially testing his malfunctioning AR-15 and declaring it not a machine gun, retested it with soft-primered ammo and then declared it was a machine gun – suppressed the evidence of the initial testing.

The appeal brief is here. (PDF) The body of the brief itself runs from page 6 to page 56. It’s not a difficult read, but it ought to piss you off. Here’s a key portion:

Four months after the search and ATF interrogation, on November 17, 2006, ATF agent Keeku filed a Criminal Complaint alleging that, on or about July 13, 2006, Olofson “knowingly transferred a machine gun … in violation of Title 18, United States Code, Section 922(o).” As part of the factual support for the complaint Agent Keeku’s Affidavit stated:

On November 6, 2006, a Firearms Enforcement Officer with ATF test fired the Olympic Arms, serial number F7079 … us[ing] 60 rounds of commercially available, .223 caliber ammunition. Three tests were performed, each with twenty rounds of ammunition. When the selector switch was placed in the unmarked third position, the firearm fired all twenty rounds automatically in each of the three tests. [Keeku Affidavit, p. 3, R. 1 (App. B-17).]

Omitted from the Keeku Affidavit was mention of an earlier test, conducted “in October of 2006” (Tr. 101, ll. 6-13), by the same ATF officer, utilizing “commercially available ammunition” (see Tr. 107, l. 17), in which Olofson’s AR-15 did not fire automatically,” as the testing officer had expected it to do (Tr. 107, ll. 4-10), but instead had malfunctioned by “hammer follow.” Tr. 122, l. 23 – 123, l. 2. See also Tr. 106, ll. 1-21. Based on this initial test, the testing officer determined that “this gun was not a machine gun.” Tr. 124, l. 21 – 125, l. 1. Thereafter, agent Keeku requested a retest.

Why? Because he didn’t get the result he wanted. The initial test indicated that the rifle malfunctioned with the safety in the third position. A “hammer follow” is a malfunction. With the retest, this time videotaped, they managed to get the rifle to fire multiple shots.

That part I was aware of. This part I was not:

At trial, the prosecution and defense counsel originally agreed “that we would allow our witnesses in throughout the entire trial.” Tr. 91, ll. 4-6. Immediately prior to the testimony of its expert firearms testing agent, however, the prosecutor informed the court that the prosecution would like to sequester defense expert during the government expert’s testimony. Tr. 90, ll. 10-13. In response, defense counsel argued not only that the prosecution should be held to his previous word, but also that “under Rule 703 it’s clear that an expert can testify to factual data … that are just made known to the expert [the] day [of] the hearing.” Tr. 91, ll. 10-13. Without explanation, the court ruled in the prosecution’s favor, “exclud[ing] [defense expert] from the trial during … that portion of the trial where the government is offering what it believes to be expert testimony.” Tr. 95, ll. 6-11, App. B-35. Thus, defendant’s expert was limited in his testimony to a brief “function check” of the firearm (Tr. 166, ll. 8-18), a review of the prosecution two expert reports (Tr. 171, ll. 14-15; Tr. 179, ll. 5-8), and viewing a portion of the video at trial.

WTF? Seriously – WTF?!?!

Read the whole thing, but take your blood pressure medication first.

Then read Appendix B (PDF).

We do not have a “Justice” system, we have a LEGAL system. If someone in that system wants to convict you of something, then they’ll find a way.

David complains in his post:

I posted the appeals brief yesterday that details all the dirty tricks the government and the prosecution employed–from mischaracterizing technical points on the witness stand, to ignoring precedent established in the Staples case in re definitions, to failure to produce documents requested by the defense (the excuse was correspondence with the original manufacturer contained privileged tax information), to preventing the defense expert witness from inspecting the firearm and excluding him from the courtroom during when the “expert witness” for the prosecution testified–actually reneging on their agreement and legal requirements, and much, much more…all with the tacit consent of a complicit judge.

So far, there has been zero interest shown from the “gun blogosphere.”

A commenter complains:

Sadly, many of the most vocal, and vicious, voices in the gun blogging community, including the gun forums, tend to be pragmatists. Neither Olofson nor Fincher are ‘pure’ enough for them. Anytime Olofson, or Fincher are brought up, outside of a few select blogs, there is an automatic flame war drowning out any opinions other than the party line that they got what they had coming to him.

Personally, I hope that both Olofson and Fincher manage to regain their freedom.

I left this reply:

Personally, I hope that both Olofson and Fincher manage to regain their freedom.

So do I. Olofson was railroaded, of that I have absolutely no doubt. Fincher, on the other hand, challenged already established precedent in the circuit in which he was tried. I don’t like that he was convicted, but I understand why he was, and I was completely unsurprised that SCOTUS denied cert. This was, after all, about machine guns, and those scare the white people. Same for the 9th Circuit’s Stewart decision.

As far back as Sun Tzu, the advice is to “know yourself, know the enemy, and choose your battles carefully.” Mr. Fincher didn’t do at least two of the three.

I don’t read your blog daily, David, nor check JPFO daily either. Thanks for putting up the link. I’ll write a post this evening when I get home. I hope Olofson gets another trial and an acquittal, and I hope he can successfully Nifong the prosecutor.

On second thought, it isn’t the prosecutor I’m really interesting in seeing Nifonged, it’s ATF Agent Keeku.

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