- The Washington Times - Wednesday, March 26, 2014

The D.C. government is treating the case of a businessman possessing ammunition without a gun like the great murder trial of 2014.

The city has spent almost two years and countless resources prosecuting Mark Witaschek for having a single shotgun shell and muzzleloader bullets. His trial, which began in November, hit an all-time low for absurdity Wednesday.

Mr. Witaschek took the stand in his own defense at D.C. Superior Court to explain why he was not guilty of possession of unregistered ammunition. It is illegal in the nation’s capital to possess ammunition unless you have a registered firearm. The maximum penalty is a $1,000 fine and one year in jail.

Defense attorney Howard X. McEachern asked his client to explain how he came to have a shotgun shell on his desk at his home in Georgetown. Mr. Witaschek explained that he kept the shotgun shell as a “souvenir” from a hunting trip in southern Virginia with friends in 2006.

He said that as a deer approached, “I raised the shotgun, took aim, fired and nothing happened.” He looked up and saw the deer run straight into a tree.

Mr. Witaschek, a lifelong hunter, approached the animal and saw that it had died from impact. He opened the action on the gun, extracted the shell and put it into his pocket.

When he brought the deer back to the hunting camp, his friends teased him about how he did it. “I tend to keep mementos from hunts, like expended shells, when there’s a story behind it,” Mr. Witaschek told Judge Robert E. Morin.

Mr. McEachern asked his client about the state of the plastic shell. “I assumed because it did not fire that it was inoperable,” Mr. Witaschek replied.

The prosecution then was given its chance to cross-examine the defendant. Oritsejemine Trouth, assistant attorney general for the District, acted as though she was bringing a mass murderer to justice.

“How many guns do you own?” she demanded. Mr. Witaschek responded by listing his firearms: shotguns, two handguns, two muzzleloaders and a hunting rifle, which he kept at his sister’s house in Virginia and a locker at a shooting range.

“Don’t you have other guns? Isn’t there one you have somewhere else?” Mr. Witaschek said he kept his deceased father’s .357 revolver at a range near his New Hampshire office. Ms. Trouth seemed to have found her smoking gun, as a manner of speaking.

Ms. Trouth did not know basic firearm terminology and function. She asked the defendant about the hunting trip. “You took the shell out of the rifle?”

Mr. Witaschek calmly replied, “Out of the shotgun, yes.”

“You found the shell at the deer?” she asked. He explained again that a misfired shell was still inside the 12-gauge shotgun.

In between constant whispering and guidance from the other assistant attorney general in court, Peter Saba, Ms. Trouth increased the intensity of her questioning. She asked Judge Morin to approach the defendant in the witness chair.

Ms. Trouth held up a copy of a photo of Mr. Witaschek’s home office desk. “Is this the shotgun shell in question?” she asked. He said it was.

“You had it just sitting on your desk, just like this?” she asked, holding up the photo. “You had it just sittin’ there? So you could see it?” she demanded a second time, as if there were a dead body lying on the desk.

“Where was the expended shell?”

“It’s in that ashtray,” Mr. Witaschek said. She asked him to point out what else he could see in the photo that was in the ashtray. Mr. Witaschek put on his reading glasses. “Coins, keys. There was a .270-caliber cartridge from a hunt in Texas, but the Metropolitan Police Department confiscated that.”

“So you keep your mementos in this ashtray?” Ms. Trouth asked. Mr. Witaschek said he did. He explained that he was not a smoker, but the ashtray had belonged to his father.

“How often do you use this study?” she asked. Mr. Witaschek said almost every day.

The line of questioning continued until Ms. Trouth moved on to the other charge of muzzleloader copper bullets with sabots.

“These projectiles are intended to be shot, right?” Mr. Witaschek explained how a muzzleloader firearm worked and that the gun powder is put in separately and the primer put in last.

“So it’s a bullet without the other parts?” asked Ms. Trouth. Mr. Witaschek looked at her curiously before agreeing that it was indeed a bullet without the other parts of a shell or cartridge that are necessary to fire it.

(Later, when she returned to this topic, Ms. Trouth asked, “The muzzleloaders are designed like a bullet? If you hit something, they will expand like a hollow point?”)

Mr. Saba whispered to Ms. Trouth, and she went back to questioning the shotgun shell.

“So this cartridge is still intact?” she asked.

“With the exception of the primer,” Mr. Witaschek replied.

“So it’s intact?” she asked again.

“When you say ‘intact,’ you don’t know what is going on inside any shell,” the defendant explained.

“It’s a full cartridge with all its parts?” Ms. Trouth asked.

“It’s a cartridge which I believed was inoperable, ” Mr. Witaschek responded.

Metropolitan Police Department Sgt. Curt Sloan sat in the courtroom.

Ms. Trouth asked the defendant, “But if I had Sgt. Sloan put the 12-gauge cartridge in a shotgun and point it at you, would you allow him to shoot it at you?”

Mr. Witaschek has taken numerous hunter safety classes. He knows the basic rules, which include always treating a firearm as if it is loaded and keep it pointed in a safe direction.

For the first time in the entire trial, Mr. Witaschek looked outraged. “That is a ridiculous question. I would never allow anyone to point a gun at me. I would not point a gun at anyone whether or not it had an expended shell or I knew it to be empty or not. You never point a gun at anyone. Period.”

Judge Morin broke for lunch before closing arguments.

While murderers, robbers, rapists and drug dealers roam the streets, D.C. Attorney General Irvin B. Nathan has two of his prosecutors fighting to convict a man of having a shotgun shell. Mr. Nathan decided in January 2013 that NBC’s David Gregory was not a threat to public safety for bringing a 30-round magazine to his live TV show.

The city is an embarrassment of wasted resources and two systems of justice. Mr. Witaschek should be found not guilty.

Emily Miller is senior editor of opinion for The Washington Times and author of “Emily Gets Her Gun” (Regnery, 2013).