Molon Labe! (7 page)

Her cross-examination of the Washington ATF agent yielded nothing. While he admitted that individual rounds of ammunition varied slightly in powder weight, he would not allow that such was responsible for the greater muzzle flash of the bare barreled rifle. The comparison test had apparently been performed fairly, but something about the video disturbed Juliette. She sensed some kind of trick, but couldn't nail it down.

After a redirect of the witness, Krempler rests the Government's case. He sits down, confident that J.K. was going to lose this one.

Day Two

"Defense calls Mr. Harold Krassny to the stand," announces Juliette.

Harold Krassny is a spry old man, his skin weathered from seven decades of ranching life. His eyes, however, twinkle with intelligence. He is sworn in and seated.

"Mr. Krassny, are you familiar with State Exhibit A, the FAL rifle owned by Bill Russell?" asks Juliette.

"Yes, ma'am, I am."

"And how is that?"

"It used to be mine. I bought it new last November."

"What did you do with it?"

"I shot it for a while and then traded it at Natrona Sports for a really nice target pistol," answers Krassny.

"And when was that?"

"March this year."

"When you bought the rifle new did it have a muzzle brake on it?"

"No, ma'am. I ordered that from an advertiser in
The Shotgun News
and installed it myself."

"And when did you install the muzzle brake?"

"December 1994."

"Do you have a copy of the ad and receipt with you today?"

"Yes, ma'am, I do."

Turning to Judge Fleming, Juliette says, "Defense moves to enter the muzzle brake ad and receipt into evidence as Exhibits A and B." She hands them to the bailiff, who then shows them to Krempler.

Fleming asks Krempler, "Does the State have any objection?" Frowning, Krempler replies, "No, Your Honor."

"Very well. Mark the ad and receipt as Defense Exhibits A and B. Continue Miss Kramer."

"Thank you, Your Honor. Mr. Krassny, why did you install a muzzle brake on your rifle?"

"I was trying to reduce the recoil. I weigh only 155 pounds, but at 73 years of age I'm not the 155 pounds I used to be."

The courtroom laughs at this.

"Did the muzzle brake reduce the recoil?"

"Yes, by about a third."

"Did you leave the muzzle brake on the rifle when you traded it?"

"Yes, ma'am."

Juliette walks over with the FAL pointed towards the ceiling. "Is this muzzle brake on the rifle the same one you ordered and installed?"

Krassny looks it over and nods confidently. "Yes, it is."

"How can you be sure?"

"Because I accidentally scratched it when I was installing it, and I touched it up with some cold blue. See there?"

Krempler briskly stands and says, "Your Honor, I fail to see where this is going. The owner history of the muzzle attachment is irrelevant."

Fleming slowly asks Juliette, "You are coming to a point, aren't you Miss Kramer?"

"Certainly, Your Honor. Nearly there, in fact," Juliette smiles.

"Very well. Continue. But do wrap it up." Imperious.

"Yes, Your Honor. Mr. Krassny, would you please read the ad."

"Surely. It reads 'FAL Muzzle Brake. Reduces muzzle climb and felt recoil. Blued steel. No gunsmithing required. Attaches with 4 set screws. ATF approved for post-ban rifles. $19.99.'"

Juliette turns and impales Krempler with a glare as she confirms, "'ATF approved for post-ban rifles'? Is that right, Mr. Krassny?"

"Yes, ma'am, that's what it reads."

"Mr. Krassny, did you rely in good faith upon that assertion that the purchase and installation of this accessory was in full compliance of Title 18 United States Code, section 921?"

"Why yes,
ma'am!
I didn't want to do anything
illegal!
"

A few snickers are heard at the back of the room.

Krempler sizzles, unsure if Krassny is being a smartass.

Juliette asks, "Mr. Krassny, did you ever have occasion to fire your rifle in low-light conditions whereby you could see the muzzle flash?"

"Yes, I did."

Krempler stiffens, expecting what is to come.

"Was that with or without the muzzle brake?"

"Both."

"To your recollection did the muzzle brake significantly reduce the flash signature of your rifle?"

"Objection, Your Honor!" cries Krempler. "The witness cannot render a qualified scientific opinion from objective laboratory conditions."

Juliette immediately counters, "Your Honor, the section 921 term
'significantly'
is one of subjectivity versus objectivity. Lay persons are allowed to render subjective opinions regarding pertinent adverbial issues. There is ample precedent on this point, specifically
US v.
C"

Fleming cuts her off. "I'm quite aware of the case law, Miss Kramer, thank you." He swivels his gray-maned head to Krempler and says, "Objection overruled. The witness may answer,
if
he has an opinion."

Juliette smiles. "Thank you, Your Honor. Mr. Krassny, to your recollection did the muzzle brake significantly reduce your rifle's flash signature?"

"No, ma'am. It changed the
shape
of the flash a bit because of the ports, but the overall size and brightness seemed about the same to me."

"Thank you, Mr. Krassny," Juliette smiles brightly. "No further questions, Your Honor."

"Do you wish to cross examine, Mr. Krempler?" asks Fleming.

Still sizzling, Krempler replies, "No questions." Best to get Krassny off the stand and let the ATF video do the "talking."

"Mr. Krassny, you may step down. You're dismissed."

Law is nothing unless close behind it stands a warm, living public opinion.

— Wendell Phillips

Juliette will now rest for the defense. Since the ATF video is so damaging to her case, she decides to argue against the law — always a perilous tactic, especially in federal court. Krempler has waived his right to go first. She begins her closing argument simply.

"Ladies and gentleman of the jury, why are we even
here
? To decide the fate of an honest, productive local citizen for having two ounces of steel at the end of a rifle barrel? For
that
he deserves to be punished with five years in federal prison and a $10,000 fine?"

"Objection!" cries Jack Krempler, springing to his feet.

"Sustained!" booms the Honorable Henry T. Fleming. "The jury will disregard that last remark by defense counsel. Miss Kramer, you are no doubt aware that a crime's possible sentence cannot be used to sway a jury towards acquittal! If that happens again, I will find you in contempt of court!"

"Sorry, Your Honor," Juliette intones. She knows that no remark can be truly disregarded by any jury, especially after the prosecutor and judge had made such a fuss about it. Defense attorneys had a little saying:
You can't unring a bell.
The jury would no doubt discuss the fairness of the punishment for such a technical violation.

"She's going for nullification," Krempler's assistant whispers.

"Sure she is. It's all she's
got
," gloats the AUSA. "With any luck she'll land a contempt and sour the jury."

Juliette pushes on unfazed. "Why are we even
here
? Because of a 'Simon Says' regulation which prohibits a flash suppressor on Mr. Russell's rifle.
Oooooh!
Thank God we have laws against that sort of thing — that and bayonet mounts."

The courtroom titters with laughter. Several jurors smile.

"I have here a bag of a dozen muzzle attachments. Eleven are muzzle brakes, and one is an actual, honest-to-God, flash suppressor." She dumps them on a table in front of the jury panel. Twelve black cylinders noisily roll about as she corrals them. "Can anyone spot the evil flash suppressor?"

"Objection, Your Honor!" cries Jack Krempler. "This is wholly improper! These muzz — uh, items have not been admitted into evidence!"

"Sustained!" Fleming instantly replies. "Miss Kramer, you will remove those at once! You are on very thin ice here!"

"Yes, Your Honor." Juliette begins placing them one by one back in the clear ZipLoc bag, muttering just under her breath, "Are
you
the evil one? What about you?
You
look kinda evil." Most jurors are openly snickering.

The AUSA assistant whispers, "Man, she's really pushing it!"

Jack Krempler nods stonily.

Regaining her stride, Juliette changes tack. "Folks, there is one crucial thing that Mr. Krempler from the United States Government failed to explain to all of us. It is
vital
to today's case." She pauses for a moment and stares directly at the Government's table of attorneys.

"Mr. Krempler did not explain that there are
two
kinds of crimes. A few crimes are
mala in se
, which is Latin for 'evil in themselves.' These would be crimes of violence and property, such as murder, rape, and robbery. By the way, we've all heard that saying
'Ignorance of the law is no excuse'
haven't we? Do you know where it came from? From an 18th century British legal scholar named Blackstone. His
Commentaries on the Laws of England
had an enormous influence on our jurisprudence. Blackstone wrote about ignorance of the law in this way:
'Ignorantia juris quod quisque tenetur scire, neminem excusat.'
Translation:
'Ignorance of the law, which everyone is bound to know, excuses no man.'

"What is that law
'which everyone is bound to know'
? Why
mala in se
crimes, of course. Everyone knows that it's wrong to murder, rape, and rob.
Mala in se
crimes are recognized in every state and in every nation as crimes, and they
have
been for thousands of years.

"So, what's been keeping our lawmakers busy since at least the War of 1812? Creating new and needless
mala prohibita
— wrongs prohibited. These 'crimes' are not evil in themselves, but merely wrong because some group of politicians
said
that they're wrong. For example, that your backyard fence may not be over eight feet high, or that your home may not have rock landscaping. Or that recently imported rifles may not have muzzle attachments with a particular pattern of holes or slots. These
mala prohibita
— and there are tens of
thousands
of them — differ from city to city, from state to state, and from nation to nation. We've all heard examples of those old, silly laws still on the books, such as the forbidding of whistling past a barbershop on Tuesdays. My client, Bill Russell has been tried under Title 18 of the US Code for such a 'crime.' He risks being convicted as a felon — a
felon
, ladies and gentlemen! — for a perfectly harmless metal part costing the price of lunch. 'Simon Says' that his muzzle brake cannot
'significantly reduce'
muzzle flash. Whistling past a barbershop on Tuesday . . . "

The courtroom chuckles deeply at this. Jack Krempler says nothing, his face stern.

"Mr. Krempler will tell you that the law is not on trial, that we must all obey the law — even if it's a silly one — until we have persuaded our representatives to repeal it. Now that's fine reasoning for a fifth grade social studies class, but it doesn't quite hold water in the
real
world, does it? Supreme Court Justice Douglas once wrote this about the law:
'When a legislature undertakes to proscribe the exercise of a citizen's constitutional rights it acts lawlessly, and the citizen can take matters into his own hands and proceed on the basis that such a law is no law at all.'
"

Every eye and ear in the courtroom is focused on Juliette Kramer. "Ladies and gentlemen of the jury, the law is merely an artificial invention to promote a reasonable society. That's it. The law is no more infallible than its authors. It's nothing to worship, and it's often unworthy of respect. As with any invention, it is to be valued and respected
as long as it works
. And for a law to work, it must be
reasonable
.

"Here is the real issue in this trial. Is section 921, subsection 30, part B, subpart iv of Title 18 of the United States Code" — Juliette pauses to take an exaggerated gasp of air — "reasonable?"

The entire courtroom giggles and Juliette's heart races with hope.
Get them laughing, and they'll cease to fear. Without fear they can see the truth.
She senses a tide turning in the room against the prosecution.

"According to 250 years of Anglo-Saxon jurisprudence, is it even a law which everyone is bound to
know
? I mean, who in this courtroom besides Mr. Krempler had even
heard
of the thing? Could Mr. Krempler quote, for example, subsection
27
or subpart iii? Ladies and gentlemen, I — like any practicing attorney in federal court — have the complete set of the 50 Titles of the United States Code. They take up
nine feet
of bookshelf space! The CFR administrative regulations, which can apply criminally to any one of us here today takes up
twenty-one feet
of space! I doubt that even Mr. Krempler himself knows every one of the hundreds of thousands of laws contained in
thirty feet
of books. If
he
does not, then how can he expect you or Bill Russell to?"

The jurors are now looking at Assistant US Attorney Jack Krempler, who has suddenly become somewhat of a codefendant in the trial.

"Who on earth could possibly live long enough to read and memorize
thirty feet
of laws? But
that
is what the Government would demand from
us
, otherwise, we're 'ignorant' of the law and 'have no excuse' and should go to prison!"

The general mood is solemn as this point sinks in.