Prosecution rests in trial for D.C. man charged for one shotgun shell
Washington Times Editorial
The District of Columbia has finished presenting its case on why Mark Witaschek is a danger to society for possessing a single shotgun shell and muzzleloader sabots in his home. This outrageous legal battle shows how far unelected, anti-gun liberals will go to attempt to destroy a man’s life.
When Attorney General Irvin Nathan’s prosecutors rested on Tuesday, they established simply that Mr. Witaschek did not have a registered gun in the city, so he violated the firearms laws by having ammunition.
Mr. Witaschek has never denied these charges, but has said that he didn’t know that inoperable ammunition was illegal. He also insists that his constitutional rights have been violated.
“The police and attorney general obviously have infringed upon my Second Amendment right to keep arms, or ammunition, or even the muzzleloaders borne by our Founding Fathers,” the father of three told me. “And they trampled on almost every other amendment to the Bill of Rights not only for me, but my entire family.”
(Click here to read part one in the series about the police raid of Mr. Witaschek’s home.)
The Trial
Right before the trial began, Mr. Nathan’s office dropped the charge from possession of unregistered ammunition to attempted possession.
It’s unclear how Mr. Witaschek could attempt to possess something that was in his home, but the facts aren’t the reason for the shift. The lesser charge carries a penalty of six months in jail, which means Mr. Witaschek was not eligible for the jury trial he wanted.
SEE ALSO: MILLER: D.C. arrests vet for unregistered ammunition (part 1)
Judge Robert Morin has listened almost impassively as the government put police officers on the stand to explain how they raided the business man’s house twice looking for guns. Mr. Witaschek is a gun owner and hunter, but has always kept his firearms at his sister’s home in Virginia.
In pre-trial hearings, Judge Morin threw out the first search in June 2012 because the cops neglected to get a warrant. However, he allowed the second search in July to be considered, even though the warrant was based on ammunition found in June.
The David Gregory Defense
Mr. Nathan is best known as the lenient prosecutor who let off NBC News’ David Gregory for openly and knowingly possessing an illegal 30-round magazine on live TV.
“Prosecutors determined that going after David Gregory for possession of an illegal ammunition magazine ‘would not promote public safety nor serve the best interests of the people of D.C.,’” Mr. Witaschek said, referring to the letter of explanation Mr. Nathan sent the lawyer for NBC and Mr. Gregory.
“For my possession of a shotgun shell that misfired during a long ago hunt, why would that be any more of a danger to public safety?”
I asked Mr. Nathan’s spokesman Ted Gest why his boss declined to press charges against Mr. Gregory, but won’t relent on this case in which the defendant didn’t even know he was breaking the law.
(Click to read the second story in this series about the pre-trial hearings that angered Mr. Gest because I did not mention the unfounded accusations of domestic violence.)
Mr. Gest replied that “Mr. Nathan and our prosecutors believe this is in the interest of public safety” because Mr. Witaschek had been “accused of domestic violence.”
Character Defamation
The spokesman attempted to defame Mr. Witaschek’s character: “Are you aware of his history? That he threatened to kill his ex-wife, and she tried to get a protection order against him?”
Mr. Witaschek’s ex-wife, Gabriella Landinez, told police in May 2012 that her estranged husband had unregistered firearms in the home, and he said that he said he would kill her on the phone one time.
The police never seemed to have investigated the matter. Mr. Witaschek denies ever having guns in D.C. and making a threat.
A temporary protection order was granted ex parte (without Mr. Witaschek answering the complaint.)
But in court, Judge Jose Lopez denied Ms. Landinez’s request for a civil protection order (CPO) (and financial support) in Aug. 2012, saying there was no evidence of a threatening phone call.
“There’s no history of violence in this family,” the judge said. “There is no history of that type of manipulation in this family to lead to any inference that he would have said that statement…”
Mr. Landinez testified for the government in the ammunitions trial. She did not claim under oath that he had guns in D.C., but she told me that in an interview Sunday night.
“It’s a lie to say he never had guns in D.C. We had guns in the house on Q Street,” she said. “I saw at least three rifles and at least two shotguns — inside and outside the safe. And he always had a handgun on the night table.”
Mr. Witaschek points out that Ms. Landinez never lived in the house on Q Street, nor ever entered the home to his knowledge.
I asked Mr. Gest why he wanted me to write about Ms. Landinez’s charges of the threatening phone call, especially considering Mr. Witaschek has no criminal history.
“I’m telling you about why we are bringing charges,” the government’s spokesman replied. “That is a major part of evidence.”
I pointed out that the prosecutors shouldn’t bring up unfounded accusations in court.
“I can’t discuss admissibility,” Mr. Gest said. “Accusations that are unproven in court factor into prosecution decisions.”
The attorney general’s office seems determined to get this man on anything that will stick.
Mr. Gest asserted that, “Our domestic violence section represented this woman and found her credible.”
If that is true, then why did the attorney general office offer to drop the request for a protective order in exchange for a cash payment from Mr. Witaschek?
The chief of the Domestic Violence Section for the Attorney General, Janese Bechtol, emailed Mr. Witaschek’s lawyer, Howard X. McEachern, in July 2012 on behalf of the city and Ms. Landinez.
Ms. Bechtol wrote that they “would be willing to propose an out of court settlement in lieu of the CPO to tide them over until a divorce case settles matters permanently.”
The prosecutor added that, “We would ask for an agreement with essentially the provisions of the TPO, as well as $2000/month from Mr. Witaschek in rental assistance, and that Mr. Witaschek keep Ms. Landinez on his health insurance.”
If Mr. Nathan’s prosecutors truly believe this woman was “credible” about her life being in danger, then it is hard to understand why the city would trade her safety for $2,000 a month and health insurance.
Ms. Landinez denies that she authorized the assistant attorney general to make this offer. “It never, never, never happened,” she told me. “I still wanted the restraining order. I never said I would do an exchange of anything at all.”
The ammunition evidence
So, the city is basing its entire case on the technicality that Mr. Witaschek had unregistered ammunition in his home, which he did not know was illegal.
When the trial resumes in late March, the defense will put on its expert to refute that muzzleloader bullets can be considered ammunition under the law.
William F. Vanderpool, a retired supervisory special agent for the Federal Bureau of Investigation, will explain to the judge that the saboted lead balls have no powder or propellant attached, so are not “live.” Furthermore, muzzleloader firearms are exempt from the registration requirement.
Mr. Gest would only say that, “We know they need gunpowder to shoot. We consider it unregistered ammunition. That is why we are filing this charge.”
The primer on the shotgun shell had already been struck by the firing pin. Mr. Witaschek kept the misfired shell on his home office desk as a memento from a hunt. Mr. Gest said that he’s “not a technical person, but we consider it operable.”
Unfortunately, even if the judge rules that it is inoperable, an empty plastic shells is illegal in D.C. for anyone who is not a registered gun owner. The same goes for spent casings.
The firearms laws in D.C. are, at best, pointless and absurd and, at worst, wildly unconstitutional. But until the courts overturn the laws, the least the attorney general should do is use his prosecutorial discretion fairly to all.
If Mr. Gregory was not a threat to society holding a “high capacity” magazine without a gun, then Mr. Witaschek should be treated the same.
Emily Miller is senior editor of opinion for The Washington Times and author of“Emily Gets Her Gun” (Regnery, 2013).
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