Max Misch pleaded not guilty Thursday in Bennington to two charges of possessing illegal large-capacity magazines.
As a condition of his release, the 36-year-old Bennington man may not possess firearms, ammunition or gun accessories while the case is pending. He was also ordered not to contact former Bennington state representative Kiah Morris, her husband, or a third individual named in a police affidavit.
State police seized two 30-round magazines from Misch’s residence Wednesday while executing a search warrant, according to the Vermont Attorney General’s office.
A 2018 state law banned as of October 1, 2018, the acquisition and possession of magazines that contain more than 10 rounds for a long gun or 15 rounds for a handgun. (Magazines that were lawfully obtained prior to the new law are exempted.)
The two misdemeanor charges each carry a potential penalty of up to one year in jail and a $500 fine.
Attorney General T.J. Donovan, whose office is prosecuting the case, summarized the court’s order to Seven Days. Donovan described contents of the state’s affidavit for probable cause. Donovan said the AG’s office received a tip the week of January 22 from a law enforcement source who alleged Misch had traveled to New Hampshire to buy banned magazines.
Barely a week earlier, Donovan had announced that he did not have grounds to charge Misch for his racist online harassment campaign against Morris. Misch, an avowed white nationalist, crashed the press conference the AG held at Congregation Beth El synagogue, where Morris was present.
While investigating the tip about Misch’s magazine purchase, Vermont State Police learned that a therapist had called the Bennington Police Department in October to alert the department that a woman she was treating had stated concern about Misch’s collection of guns and ammunition and his “predatory and intimidating behavior.”
Donovan said Bennington police did not disclose the therapist’s phone call to his office during its months-long investigation into the racial harassment of Morris.
Asked whether he thought the call should have been disclosed, Donovan replied, “Yes.”
“Right now, we’re focused on prosecuting this case,” he added.
Correction, March 5, 2019: Details of the new gun law were misstated in a previous version of this story.
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Max Misch appears to be the unavoidable result of being spoon fed Right Wing pablum and paranoia by Fox News, Alex Jones, Ann Coulter, and Rush Limbaugh for 25 years. As someone being charged with a crime who also seems to enjoy harassing women of color he would fit right in with the rest of the Trump administration or anywhere in the GOP.
It’s interesting to watch radicalization occur in real time. Now that the state has engaged in a vindictive home search, arrest, and prosecution because they didn’t like his prior but non-criminal acts, I’m sure it should help the situation. Let’s be clear: the actual LtGov (way to go Dave) came right out and stated it was a vindictive investigation meant to punish him for his non-criminal acts. What’s really scary is the LtGov was actually okay with that. So as we celebrate the use of the state’s unique authority to punish unpopular viewpoints, let’s remember that some day each of us may have an unpopular viewpoint. First they came for the Nazis, and I didn’t say anything because I wasn’t a Nazi. Then they came for the white supremacists, and I didn’t say anything because I wasn’t a white supremacist. Then they came for the libertarians, and I didn’t say anything because I wasn’t a libertarian, then…
If you watch Fox News, Alex Jones, Ann Coulter, and Rush Limbaugh you are probably not welcome in Vermont anymore. If you watch Msnbc or Cnn you probably think the world is coming to an end.
I watch the weather channel at least they are right 50% of the time.
Col. Cashman its always amusing to read the gyrations that an extreme right-winger such as yourself will use to defend and condone the behavior of every other right-winger, no matter their behavior. Whats really interesting is how you continuously show your true character (or lack thereof). If it was a lefty breaking the law youd be singing a different tune. But its good to know that you condone breaking the law (as long as its a right-winger doing the law breaking), racial harassment of a public official, etc. As youre the one bringing Nazis into the conversation, Id suggest you take a good long look in the mirror.
Roy,
Fun fact: Rights, everybody has them. If you can find a single example of me calling for the prosecution of a “lefty” as you say in a similar situation, please provide it.
Also, it’s LtCol Cashman (Ret), but you were close. Since I use my name, how about you do the same?
If you read the affidavit it states that the magazines were actually paid for and transported into Vermont by his ex-wife. That is for both the first two purchased legally in September, and the subsequent two purchased in NH and transported into Vermont after December 1, so it is going to be an issue charging him with “buying” 30 round magazines. Additionally it looks like it might be an issue to get him for “possession” of “illegal” magazines as magazines are not generally serialized. Even if there were two magazines in the house, how do you go about proving they were the “illegal” ones as opposed to the “legal” ones?
On the plus side, it looks like there is a very solid case against his ex-wife for buying 30 round magazines in NH and transporting them into Vermont after 1 December.
Pass stupid laws, get stuck in stupid situations..
“Additionally it looks like it might be an issue to get him for “possession” of “illegal” magazines as magazines are not generally serialized. Even if there were two magazines in the house, how do you go about proving they were the “illegal” ones as opposed to the “legal” ones?”
Why would anyone have to?
If the prosecutor can prove to a jury beyond a reasonable doubt that 2 of the magazines are illegal, he doesn’t need to prove WHICH ones any more than a DA would need to prove which bills were stolen from a bank or which bottles of booze were stolen from a liquor store. Just as possession of legal currency or booze would not be an adequate defense in the face of clear evidence that the perpetrator is in possession of illegally obtained currency or booze, so too this guy’s possession of legal firearms is no defense either.
John,
Because the legality of the items doesn’t depend upon how they were transferred between owners as with the stolen items in your example. The items were legally purchased in places and times where it was legal to purchase them. The discriminating factor among otherwise identical items that would make them “illegal” is when they were brought into Vermont. Bought it on 30 September? Legal to buy possess in Vermont in perpetuity. Brought it into Vermont on 30 September? Perfectly legal to possess in Vermont forever. Brought it into Vermont on 2 October? Illegal to possess. As they are not individually distinguishable in any way and there is certainly no registry of how many magazines everyone owned before 1 Oct or after, a simple “oh, I’ve had that forever” is kind of an unbeatable defense.
I know it ends with the Jury and conceivably if the prosecutor says “racist” or “white supremacist” enough maybe he could get the jury to go with emotion vice application of the reasonable doubt standard required in all criminal cases: ” “[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” But should our state be advocating subversion of due process as a tactic?
All to get, best case possible, a misdemeanor conviction.
Misch is an ass, yes. But twisting and exploiting the mechanism of our government to blatantly punish legal but distasteful behavior is an astonishing crime. Those supporting this act need to slow down and consider exactly which of their rights they are eager to do away with to punish one person they don’t like, and consider that someday after they give up those rights they may be that person.
Patrick,
First, you explain what I already understood, then you evade my point entirely.
Let me restate the salient facts. There are 4 magazines: two were purchased legally, 2 illegally. All that can be shown by specific evidence, which in the news articles at least, appears convincing: receipts and surveillance camera footage of the purchase on the illegal dates, etc. (See https://vtdigger.org/2019/02/07/guns-seize…)
Originally, you asked how prosecutors (or a jury) could tell WHICH magazine was which, to which I replied: they dont need to. It doesnt matter. Two of the four were purchased illegally. That can be proved WITHOUT reference to the magazines themselves.
Try it this way. All of the facts remain the same, EXCEPT that Misch managed to dispose of or hide the magazines. Assuming he cant or doesnt attack the evidence to which Ive already referred, prosecutors now have NO magazines, therefore NO need to distinguish one from another. And yet, the evidence is still sufficient to prove that the crime was committed.
Or to repeat one of my analogies, I rob a bank and then spend all the money. Does that mean that there is no way for prosecutors to prove that I robbed the bank? Of course not.
Obviously, in every case, the strength of the OTHER evidence needs to be sufficient to prove the crime, but thats another matter entirely.
None of this requires anyone to draw ANY conclusions about Mr. Mischs politics (which I gather we agree are pretty awful). Indeed, they neednt be mentioned at all.
John,
I wish the preface were not necessary but just in case: yes, Mr. Misch’s views as described by reports and by his tweets are infantile and ignorant. But, he has every right to hold, express and promote them. The Nazis had every right to march in Skokie, and Mr. Misch has the right to be a racist.
Your description of one of the purchases as “illegal” is incorrect. Both purchases were perfectly legal. The alleged crime occurs when the magazines legally purchased in NH are transported into Vermont after the cutoff date. And right now the evidence that is described in the State Police affidavit consists of video of a perfectly legal act (Ms. Shapiro purchasing two magazines in NH) and the admission by Ms. Shapiro that she transported those magazines into VT after the cutoff date, and her claim that Mr. Misch took them with him when he left the car. Then police found two magazines in Mr. Misch’s home. There is no way to prove beyond a reasonable doubt those two magazines are the two purchased by Ms. Shapiro in NH as opposed to the two purchased prior to the cutoff date and perfectly legal to possess, or bought at some unremembered point in the past. It isn’t the accused obligation to prove he didn’t commit a crime, it’s the state’s obligation to prove beyond a reasonable doubt that he did.
Again, pass stupid laws, get stuck in stupid situations.
Patrick,
Your second paragraph makes the case that the defense will have to present.
While you are technically correct that the purchase in NH is legal if the magazines are not transported to Vermont, I would assume that the prosecution will also introduce testimony from Lisa Shapiro (and/or others) stating that Ms. Shapiro purchased the magazines for the defendant and that either he or she (or conceivably someone else) DID transport the magazines to Vermont and that they DID end up in the house, where 4 magazines were, in fact, found. Since the prosecution can also provide a plausible chain of evidence for the other 2, I continue to believe it will NOT need to distinguish which ones are which.
Apparently unlike you, given the evidence that already exists, I think the prosecution has a pretty persuasive case. The standard is reasonable doubt rather than any doubt precisely to eliminate the possibility of failing to convict in cases where the evidence overwhelmingly suggests guilt, which is the way I read this evidence so far
I am not a lawyer (and as far as I know, you arent either), and neither of us knows every scrap of evidence probative or exculpatory that will be introduced assuming the case goes to trial. But assuming that nothing persuasive has been left out of press accounts, this is where I believe we are now.
Mr. Misch had better hope that the armchair lawyers in these comments columns are correct, and that the law itself can be found unconstitutional. I suspect THAT is the case hell end up making.
Im so willing to wait for the courts to decide that issue that Ill spare them (and you) my inexpert guidance on the matter.
Hmm, the article says 2 magazines recovered, not 4. So it would be an issue to prove which 2 were there 2 that were legally brought to VT or at least one the wasn’t brought legally to VT. I can’t see how you prove it either way, and with presumption of innocence and the prosecution having to prove guilt, I don’t think this is as easy to prove as some think. Now if they find 4 magazines, you still have to prove he didn’t buy all four before the deadline, but at least you are closer…
When the police or prosecutor can go to a judge and get a search warrant over the suspicion you may have high capacity magazine you are living in a police state not a free country. What has happened to America.