Firearms, the Criminal Justice System, and You
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Boulder, CO (September 2012)--If you own a gun and consider yourself to be an upstanding, law-abiding citizen, you probably haven’t given much thought to being targeted or profiled because you own firearms. After all, as long as they’re legal and you don’t use them inappropriately, you have nothing to fear, right?
Wrong. According to Michelle Gesse, whose husband, Steven, was falsely accused of threatening another man with one of the couple’s guns, owning a gun means that you could be charged with using it against another person--even if you have never used the gun as a weapon, have never exhibited violent behavior, and have no witnesses other than the accuser. The nightmare the Gesses lived through in trying to clear Steven’s name is something every gun owner should be aware of--and prepare for.
“After what we thought was a cordial dinner party at our home, a neighbor’s son returned to our house and demanded that my husband, Steven, accompany him home and apologize to his mother about a comment he had made earlier in the evening--which Steven did,” recalls Gesse, author of the new book Bogus Allegations: The Injustice of Guilty Until Proven Innocent (Johnson Books, March 2012, ISBN: 978-1-55566-450-3, $17.95). “We were shocked later that night when law enforcement officers arrived at our home to arrest Steven and search our house. As it turned out, our neighbor’s son had falsely accused Steven of threatening him with a gun after the apology.”
(As a side note, the gun Steven had supposedly hidden in the back of his pants and used to threaten the accuser was a Thompson Centerfire Contender--an 18-inch, five-pound firearm that holds only one bullet. Not exactly a logical choice--some might even say an absurd choice--to conceal and carry.)
“Following Steven’s accusation, he was treated as though he had already been found guilty by the justice system and by the press,” Michelle reports. “For seven months, Steven had to meet multiple bail conditions, like not traveling out of state without permission and having to appear for random breathalyzer tests. Meanwhile, we were in and out of court, and we had to spend a small fortune proving his innocence. That’s not what I had pictured ‘justice’ to be before experience taught me otherwise.”
On October 28, 2009, Steven Gesse was found not guilty of Felony Menacing and Prohibited Use of a Weapon by a jury. Yet being exonerated did not make up for the fact that he had been treated like a convicted felon. The unfairness of it all set Michelle Gesse on a mission to shine a spotlight on the injustices of the American justice system--and to make people aware of what to do in case they are ever falsely accused.
“Gun owners especially need to be aware of the fact that they might be falsely accused simply because they possess firearms,” Gesse underscores. “No, it’s not fair. And yes, that event is unlikely, and I sincerely hope it never happens to you. But the fact is, you need to be prepared for the possibility.”
Here, Gesse shares seven things gun owners can do to protect themselves as much as possible in the event that they are ever falsely accused.
Make sure your i’s are dotted and your t’s are crossed. While many places in the United States require relatively little in the way of gun ownership documentation, it’s always smart to make sure that your i’s are dotted and that your t’s are crossed. In addition to the obvious rule--don’t buy illegal firearms--it’s a good idea to keep any receipts or licenses you may have, as well as a list of your firearms’ serial numbers. Also, be vigilant about having any guns you don’t own in your house. For instance, if you have inherited your grandfather’s rifle, check your local laws to make sure you have filled out any required documentation.
“This wasn’t an issue for Steven and me--perhaps because all of the guns in our home belonged to us and were legal,” Gesse comments. “But I can only imagine that things might have gone much worse for us if that hadn’t been the case. When you are in compliance with local laws regarding registration, documentation, types of guns that can be owned, etc., you demonstrate a respect for the law and for the rules.”
Be a stickler for gun safety. This is a rule of thumb that most gun owners take very seriously, but it bears repeating: Don’t joke or play around with guns, even if you are “only” with family or friends. Build a reputation for yourself as someone who always puts safety first. If you haven’t already, you may even want to consider taking a gun safety or concealed carry course (if available) so that you can demonstrate your commitment to being a responsible gun owner. And never, ever take guns out when alcohol is present, whether you’re on your first beer or your fourth.
“The point is, you don’t want to do anything that can give other people even a toehold if they try to make the case that you’re reckless with or uninformed about your firearms,” Gesse says. “The fact that we are very responsible with our guns helped quite a bit at Steven’s trial. In fact, a witness for the prosecution said that he had never seen a gun being handled or outside the locked gun vaults in our house when alcohol was present over the course of many, many years.”
Operate on a need-to-know basis. Yes, you may be proud of being a gun owner/sportsman/collector, etc. And like the Gesses, you may firmly believe that the right to bear arms is guaranteed by the Second Amendment, and that you can and should defend yourself with your firearms if necessary. But the fact is, not everyone needs to know about it. In fact, it’s a good idea to keep knowledge of your guns to a need-to-know basis. For instance, you can talk about your new shotgun with your hunting buddies, but your coworkers really don’t need to hear about the purchase.
“The fewer people who know about your guns, the fewer who could use that information against you,” points out Gesse. “Is this rule of thumb unfair? In a perfect world, perhaps. But we don’t live in a perfect world, and an unguarded comment or boast could land you in hot water. In our case, our neighbor’s son knew that we owned guns and hunted. He had actually asked to see some of them during past visits to our home. We had no indication that he would ever use this information to harm us--but he did. It’s very unfortunate that you can’t trust other people to have information like your being a gun owner.”
Watch your mouth. In much the same vein, watch what you say about guns as well as to whom you say it. Except for perhaps your most trusted family members and friends, don’t make jokes or comments about owning and/or using your guns, such as: I’d like to shoot him, She’d better watch out, Don’t mess with me--I have a [insert gun type here], I’m not worried about anything as long as I have my gun within arm’s reach, Protected by Smith & Wesson, etc.
“Again, if you trust your audience and you want to make these types of remarks, that’s all well and good,” says Gesse. “The problem is, it can be tough to know whom to trust and whom not to trust until it is too late. You don’t want an offhand comment that you didn’t mean coming back to haunt you.”
Focus on proper storage. Even if your household includes only adults (as did the Gesses’), it’s critical to store your guns properly. Invest in a gun safe or gun cabinet that you can lock, and think about keeping your guns unloaded with the safety on or using a trigger lock. If it’s provable and/or common knowledge that your firearms are easily accessible and not protected, this information could be used against you.
“If you don’t take precautions when storing your guns, other people might also make assumptions about your willingness to use the firearms inappropriately, whether it’s true or not,” adds Gesse. “And what about guns that you want to keep accessible and loaded for personal protection--as I know many owners do? All I can say is, no one other than adult family members need to know where they are, or that they even exist. And they should not under any circumstances be kept where they might be found by a child.”
Be prepared for false accusations. Yes, it’s unlikely that you will be falsely accused of a crime because you are a gun owner. But lightning does strike sometimes. It happened to the Gesses, and it could happen to you, too. If you own a firearm, you need to have a plan in place and know what to do before the crap hits the fan and you are struggling to stay afloat in the confusing criminal justice system.
“Anyone can be falsely accused of a crime,” reiterates Gesse. “And the reality is that any accusation in which the accuser claims to have been threatened by a gun will be taken very seriously by the police or sheriff’s department. Such an accusation will almost always result in an arrest and prosecution--regardless of how unfounded it might be. Gun owners are therefore at more risk to be prosecuted for a crime they didn’t commit than others simply because they possess a firearm. Preparedness--in other words, knowing what to do if this horrible situation ever happens to you--is therefore especially critical for gun owners.”
Don’t be naive. As the Gesses’ ordeal proves, it’s naive to comfort yourself with statements like, There were no witnesses to the supposed crime, so they can’t prove that I did it, I’m innocent until proven guilty, The burden of proof is on the prosecution’s side, etc. The way things actually work is much different, and you are NOT doing yourself any favors by believing in an idealized version of the criminal justice system.
“Even without what many would consider to be sufficient evidence, you can still be arrested and go to trial,” asserts Gesse. “You will be treated as though you are guilty until you are proven innocent. To prove that innocence, you will probably have to spend large amounts of time and money. And saddest of all, plenty of people will lie--even under oath--to serve their own purposes (as was the case in Steven’s trial). Yes, reality can be ugly, but you need to face it as it is instead of how you want it to be.”
“Please, don’t have an ‘it’ll never happen to me’ attitude,” concludes Gesse. “Steven and I did--actually, we’d never so much as considered the possibility of being falsely accused--and look what happened! The truth is, you never know when or how life will kick in the door and turn your life upside down. But you can do what’s in your power to protect yourself.”
# # #
When the Nightmare Becomes Real: Twelve Things You Should Know If You Are Falsely Accused
No one expects to be accused of--much less prosecuted for--a crime they didn’t commit. But according to Michelle Gesse, author of the new book Bogus Allegations: The Injustice of Guilty Until Proven Innocent (Johnson Books, March 2012, ISBN: 978-1-55566-450-3, $17.95), it could happen to you--and it’s important to be prepared to navigate a system that is extremely different from that which you may have seen on TV.
Here, Gesse shares 12 lessons she and her husband, Steven, learned in the Criminal Justice
School of Hard Knocks after Steven was falsely accused of a felony.
• Have an “arrest plan” in place (yes, it could happen to you). Just as you have an escape plan in place in case your house ever catches fire or you instruct your child to scream and run if accosted by a stranger, you should think through and be prepared for a possible arrest. It’s a good idea to know beforehand what you would do if you were confronted by the police at your own front door, or how you might respond if you received a phone call telling you that a loved one had been arrested. Otherwise you’ll be left floundering, completely at the mercy of “the system.”
• Be the first to call 911. The person to call 911 is always going to be considered the victim, regardless of the circumstances. If you find yourself in any sort of threatening situation, whether it’s with a family member, friend, coworker, or complete stranger, don’t hesitate. While it may not seem “right” or “fair,” the first person to call 911 is going to be regarded as the victim, regardless of the facts or the truth. This person will receive support from victims’ advocates, the press, law enforcement, the community, etc., while the accused and his or her family will be on their own to clear the accused’s name.
• Everyone involved has the right to remain silent. If you are falsely accused, your first instinct may be to tell law enforcement the truth about what happened in order to convince them you have done nothing wrong. Don’t. The same rule applies to friends and family members. No one associated with the supposed crime should say anything without a lawyer present. Whether you are the accused person or not, what you say in an unguarded moment could be recorded, perhaps twisted, and used against you in court.
• Insist on a search warrant, even if you have nothing to hide. If you know that you have not committed any wrongdoing and have nothing to hide, you may be tempted to answer this question with a “yes.” However, squelch the impulse to be open and helpful, and don’t allow anyone to search your house without a warrant. It can tell your lawyer what the police were looking for. And if the search wasn’t executed properly, having the warrant might make whatever was found ineligible to be introduced as evidence. Remember, it’s always best to have physical documentation when you’re dealing with the criminal justice system.
• Realize that the criminal justice system is hard on the innocent. The criminal justice system in the U.S. is a “flow system.” In other words, it wants to dispose of as many cases as quickly as possible. This is done by negotiating plea bargains, which are the quickest and least expensive way for them and for you to end the process. However, accepting a plea bargain--even to a lesser offense--may mean having a criminal record as well as having conditions imposed on you like alcohol testing, community service, or limits on travel. Would you be willing to do that if you knew you were innocent? If not, know that you’ll end up paying financially and emotionally for not playing the game the system’s way.
• Expect to be treated like you’re guilty. Expect to be prosecuted even if the facts and evidence don’t support a guilty verdict. Unless your case is extremely high-profile, it’s unlikely that the prosecutor will even review the case file until shortly before the trial. And the prosecutor will proceed even when the supposed victim indicates that he or she prefers to put an end to the proceeding. Meanwhile, you might be forced to live under court-ordered stipulations that resemble nothing so much as parole.
• Proving your innocence comes with a very high price tag. Since Steven Gesse did not take the plea bargain he was offered and instead maintained his innocence, he paid a very high price. Proceeding to trial doubled the Gesses’ legal expenses and made the process last twice as long. In contrast, the false accuser did not have to pay legal fees, and his transportation to and from the trial was covered. While it seems incredibly unfair--even unbelievable--that an innocent person would have to spend thousands upon thousands of dollars to prove that he has done nothing illegal, that’s reality.
• Getting a lawyer doesn’t imply guilt. (In fact, innocent people need the most help!) Don’t make the mistake of believing that if you have nothing to hide, you don’t need legal representation. In fact, the innocent may need even more legal help than the guilty. Think about it this way: You wouldn’t travel to a dangerous foreign country without hiring a good guide. And for all intents and purposes, the criminal justice system is a dangerous foreign country. As an innocent person, you have no idea what’s going on, what to expect, or how to handle the many obstacles that will be thrown in your path. You certainly aren’t equipped to represent yourself in court. So yes, you’ll definitely need the help of an experienced professional if you don’t want to end up serving time for a crime you didn’t commit.
• Don’t skimp on a lawyer. This is not the time to save money. If your finances are tight, shop at discount stores and give up steak and wine--but don’t look for bargain legal counsel. Hire the best lawyer you can afford...or perhaps one a tad more expensive than you can afford. If you’re reluctant, ask yourself: Would I rather go into debt, or would I rather go to jail for something I didn’t do?
• You’re not as alone as you think you are. If you ever find yourself or a loved one falsely accused of a crime, you’ll probably feel alone and totally adrift. But keep in mind that more people than you would ever expect have found themselves in this situation. Unfortunately, an unwarranted sense of shame keeps most falsely accused individuals from sharing their stories. Don’t be afraid to do your own research on the subject of “false accusations” or to reach out to others who have been there. You will need to establish your own safety net of a very small number of individuals with whom you can confide.
• Be prepared for an emotional roller coaster. If the process of going to trial is financially costly, it’s every bit as brutal on your emotional reserves. Expect for everyone in the family to feel stress, fear, anger, and exhaustion (just to name a few) on a regular basis. You might cry easily, little things will make you mad, and your sex life will likely suffer. So cut yourself and your loved ones some slack, and be easy on yourselves. This is not the time to go on a diet or start a new job. And don’t worry--feeling this way is normal.
• You’ll find out who your true friends are. If you are wrongfully accused of a crime, you’ll probably be surprised and saddened by the number of people in your life who don’t want to be involved. People whom you had considered to be friends may pull away, become distant, or even refuse to help. Unfortunately, many individuals may feel so awkward even approaching the topic that they avoid it, denying you the support you need so badly. And other “friends” may assume that since you have been arrested, you are probably guilty. But some individuals will step up and go above and beyond the call of duty to support you.
# # #
About the Author:
Michelle Gesse, author of Bogus Allegations: The Injustice of Guilty Until Proven Innocent, is a native of Chicago, IL. She earned a BS in mathematics from the University of Illinois, Urbana-Champaign, and completed her MBA at the University of Chicago. She spent 15 years in banking, working for Northern Trust in Chicago and Chase Manhattan in New York. From 1992 to 2011, Michelle successfully owned and ran a manufacturing company in Boulder, CO.
Michelle lives in Boulder, CO, with her husband, Steven. Before the incident described in Bogus Allegations, Michelle and Steven never thought that they would get involved in the criminal justice system.
For more information, please visit www.michellegesse.com.
About the Book:
Bogus Allegations: The Injustice of Guilty Until Proven Innocent (Johnson Books, March 2012, ISBN: 978-1-55566-450-3, $17.95) is available at bookstores nationwide, from major online booksellers, and at www.michellegesse.com.
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