Dubious felony weapons charges act as leverage against Aldon Smith in misdemeanor DUI case

Jeff Gross

The Santa Clara District Attorney's office has announced they have charged Aldon Smith with three felony weapons charges. We look at the charges and the elements necessary to get a conviction. Are the new charges brought by the DA merely an attempt at leveraging a plea agreement on the DUI charge?

Author's note: Nothing that has been written should be construed as legal advice to Aldon Smith or any other person seeking legal advice. We are simply theorizing hypotheticals based on publicly available information. Further, while the author is discussing legal issues, there is no desire to turn this into a discussion about politics, e.g., gun regulations and/or state legislation.

Prosecutors from the Santa Clara District Attorney's office announced they have charged Aldon Smith with three felony weapons charges. The charges originate from a house party on evening of June 29, 2012, where Smith was reportedly stabbed and two others were shot. Upon search of Smith's residence, deputies found assault rifles, magazines and ammunition.

Currently, Smith is on indefinite leave from the 49ers after San Jose police arrested him on September 20th on suspicion of driving under the influence and possession of marijuana. Word came out on Wednesday that two misdemeanor DUI charges were filed.

According to the public information, Smith purchased the guns legally in Arizona (days before the 49ers played the Arizona Cardinals) in December of 2011. In order to comply with California law, the guns needed modification and registration with the state of California. According to the allegations, the weapons were neither modified nor registered.

Possession of assault weapons is a specific-intent crime. Specific-intent means the DA must prove that Smith knew, or should have known, the guns were illegal and intentionally possessed them with such knowledge. Intent is often confused with motive; however, the two legal elements are different. Whether the suspect intended to break the law does not matter. The legal issue is whether Smith had the desire (or knowledge) to precisely break the law. It is a state of mind, not the reason he committed the crime. The legal elements are more difficult to prove.

The timing of these charges bothers me. It is unclear to me why it took the Santa Clara DA over a year to bring felony weapons charges against Smith. Does the prosecutor have new evidence?

My criticism of the District Attorney's office does not equate to defending any of Smith's actions. He brought most of this on himself. However, from a legal standpoint, the zealous DA adjoined relatively rickety charges here.

We know Smith is not only a suspect -- he was also a victim. In order for the authorities to prosecute the other suspects for the shootings and/or stabbing, they need the cooperation of Smith. Given the nature of the more serious crimes, it is not uncommon for a prosecutor to decline lesser charges -- especially one so difficult to prove.

Further, juries are sympathetic to self-defense cases. Essentially, but for the gang members causing a ruckus, the guns would have never been found. Moreover, Smith purchased the guns legally in Arizona. Maybe he didn't know modifications were a requisite in California? Yes, it is a supposition. My point is it could be argued Smith didn't know. And, with specific-intent crimes, ignorance is a defense. It provides reasonable doubt.

What is more, how could the DA argue Smith went to Arizona with the specific intent to purchase illegal weapons, given that he was there for a football game? Several variables create doubt, especially when it comes to intent. Frankly, I do not believe the District Attorney brought the charges a year ago or even a month ago, because he knew he could not get a conviction.

So why now?

The District Attorney has received a lot of heat for being lenient on the rich within the last few months. Shortly after the accusations were made, the political posturing began. That is, the Assistant DA Scott Tsui stated, "We're not treating anyone differently." The DA had an entire year to investigate Smith and bring forth felony possession charges. A whole year. But it wasn't until even one month ago the DA began to investigate whether he purposely left California to buy the illegal guns. Why did it take so long? The inference is Smith is the wealthy, high-profile defendant he needs to preserve his reputation.

The DUI arrest gave the District Attorney a perfect opportunity to show he can throw the book at the elite. Even if the DA did not believe he could secure a conviction a year ago, the charges can now be tacked on to Smith's DUI charge in an effort to get a plea. While it may not be the high-profile conviction he needs, it may be enough to potentially secure a better plea bargain and save face.

It is pretty simple. If there is new evidence to prosecute the charge, why did it take so long to discover it? And, if there is no new evidence, it is clear to me -- the felony charges are merely a leveraging tool.

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