Jack Weinstein: “”I’m not going to accept the 2nd Circuit’s interpretation because it’s utterly absurd.”

November 22nd, 2011

Looks like Judge Weinstein is going to ignore precedent again because it makes no sense.

On Nov. 18, Weinstein ordered both parties to address whether 922(n) violated a defendant’s Fifth and Second Amendment rights, as well as the presumption of innocence.

During oral arguments on the order Monday, Weinstein seemed inclined to keep the law intact, indicating that its benefits to society outweighed its drawbacks for the indicted.

“Someone who has been indicted is more dangerous than someone chosen at random,” Weinstein said.

But while Weinstein appeared to side with prosecutors on the statute’s constitutionality, he questioned them sharply about whether they could prove Laurent actually received the weapon after he was indicted. Merely possessing the weapon would not be enough to trigger the ban under 922(n), Weinstein said.

“The theory that he ‘receives’ it every time he takes it out of a box and puts it in his pocket is absurd,” Weinstein said.

Weinstein initially threatened to dismiss the indictment, but relented when prosecutors said they could offer proof that Laurent received the weapon after his state-court indictment.

Weinstein said he will set an additional hearing to allow prosecutors to present that evidence before Laurent’s scheduled trial, scheduled to begin on December 5.

Can you imagine serving as an AUSA before this judge, where precedents are irrelevant and the Judge is constantly heaping additional proofs on the government? I bet criminal defense attorneys thank their lucky stars when they draw Judge Weinstein.