That
was the question put by an Elko attorney last week to
Elko Justice of the Peace Molly Leddy.
The JP answered 'no,' denying a request for a jury trial
for James Daniel Stevenson.
Stevenson's attorney, Mark Torvinen, had
argued Leddy could approve the request based on the
severity of the federal law, which strips away a right
normally taken only from felons, illegal drug users,
mental defectives, illegal aliens, and those dishonorably
discharged from military service or who renounce their
U.S. citizenship.
"I made this motion in earnest to
challenge you, not personally, but judicially, to do what
your oath meant," Torvinen said to Leddy. "What
I suggest to you is that domestic battery is unlike any
other misdemeanor because the Congress of the United
States has made this offense unique."
Congress enacted the law in U.S. Code Title
28, making a person ineligible to possess a firearm upon
the conviction of battery against a spouse, relative or
live-in partner. The law also applies to convictions
before the law went into effect and forever prohibits
owning a weapon.
Deputy District Attorney Roger
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Harada argued that the
acts of Congress were irrelevant in the court's
consideration of whether the Nevada Legislature
considered the crime so serious as to trigger Sixth
Amendment jury rights.
Harada cited a U.S. Supreme Court case,
Blanton, which provides a balance test for allowing the
use of jury trial, using the wording "serious"
penalties. Harada said Nevada law does not impose a
"serious" enough penalty for a battery
conviction to warrant a jury trial. In Nevada, the
penalty for a battery conviction is up to six months in
jail and/or a $1,000 fine.
"This court doesn't have the jurisdiction
to make rules on U.S. Code Title XXVII," Harada
said.
"That law was not created by the Nevada
Legislature."
Harada said the Legislature has not even
distinguished between battery and "domestic"
battery.
"In this particular case, Mr. Stevenson
is charged with `battery' and the law does not make any
distinction for who the victim is," Harada said.
"The federal law flies in the face of that
law."
Harada said if Leddy allows the jury trial
based on the consequences
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