Robert Morgenthau has a well coached team; he certainly had an advantage out of the gate, with a lot of “Division I” prosecutors. When it came time to hit the field, his pass rush was relentless, and his secondary was all over Plaxico Burress. In fact, Burress didn’t stand much of a chance of corralling the 'long ball' of jury nullification. Did Burress fumble before a Manhattan grand jury, or was his quarterback sacked before he could toss the ball the distance of the field? I don’t know. I wasn’t there. Regardless, the District Attorney’s office has a “Giant” lead going into the fourth quarter.
So what happened? What kind of second half should we expect?
At bottom, Burress, in his testimony, attempted to convince the grand jury that not only did he lack any criminal intent and was, indeed, remorseful, but also that the firearm was legally purchased/possessed in another state and that the grand jurors should disregard that law. Unfortunately for Burress, the law of Criminal Possession of a Weapon is quite clear: Criminal intent is not an element of NY Penal Law 265.03(3). Let me clarify in case you missed it or I stuttered: Criminal intent is not an element of NY Penal Law 265.03(3). That’s right—merely possessing a loaded firearm outside one’s home or place of business without a permit to do so is a 'C' violent felony, punishable by a minimum of three-and-a-half years and a maximum of fifteen years in prison.
Some attorneys believe Burress did the right thing. One blogging criminal defense attorney in New York even claimed that Burress’ attorney “nailed” it. If the strategy had worked, and Burress had convinced the grand jury that an indictment was not the best route, his attorney would certainly be covered in Gatorade right now. Unfortunately for Burress, that is not the case.
The countless coaches of the criminal courts can argue whether the strategy to put Burress in front of the grand jury was the right decision, but I think it is fair to say that in Burress’ case, once negotiations fell apart, what were his choices? Take two years, or try to beat it. From a career perspective, how could Burress not have fought the case? Three-and-a-half years or two years to his football career may have led to a permanent termination of his contract, a/k/a career, either way. That being said, if he recognized the gravity of the evidence against him and had taken responsibility early, he would have served a significant portion of his time already. While I am confident that Burress and his attorney grasp the strength of the case, I am also confident that they recognize what’s at stake. For all of us reading this article and surfing the web…it’s much easier to play armchair quarterback then actual quarterback.
So where does this leave Burress? The prosecution may or may not re-offer the two years now that the grand jury has indicted him. As a prosecutor in Manhattan, I rarely, if ever, made the same offer post-indictment. Even if the offer were re-made, Burress might reject it anyway. His attorney will certainly attack the case legally: Was the grand jury proceeding defective? Although it’s more of a longshot, another question that could be asked is whether New York’s weapon statutes go so far as to fly in the face of the Second Amendment, as we saw in the District of Columbia v. Heller. (In Heller, the District of Columbia’s ban on an entire class of arms was found to be unconstitutional. However, not only is the Second Amendment not binding on the states, but New York's statute is not a ban on guns—rather, it’s more of a licensing requirement. In fact, a Brooklyn Supreme Court judge and a Suffolk County District Court judge both found recently that the decision had no bearing on the New York statute.)
Maybe Burress can convince a trial jury of his remorsefulness and his lack of any criminal intent. As noted earlier, however, criminal intent is not an element. Even so, as an athlete, Burress had a bullseye on his back, and argues that he only carried the weapon for self-defense. I mean, he’s Plaxico Burress! As compelling as that sounds, if I still had on my “prosecutor hat” (they took it from me, along with my get-out-of-jail-free card, when I resigned), I would have a field day with this argument.
Is it Burress’ position that if you are an athlete—constantly in the public eye, driving a nice car, owning nice jewelry, etc.—you should be held to a different standard (can someone say 'ego?')? Is there a 'reasonable person standard' that dictates that your average Joe can’t carry a gun if he wears Gap jeans and drives a Honda unless he has a permit, as well as an 'affluent person standard' that states that if you are famous, drive a Mercedes, or have some bling, you don’t need a permit? Moreover, if he was so concerned and affluent, what was he doing out without security, or, perhaps more relevantly, why didn’t he apply for a permit like everyone else who legally carries a firearm in New York City?
Delving further, Burress’ likely argument is that he would only have used the gun if he were confronted or found himself to be in imminent and life-threatening danger. But who would establish the definition of this level of danger? If two men approached him merely with their fists and said “give us your earring,” could he respond with the force of a firearm? Is that a legal level of self-defense? Obviously, this is a barebones assessment, and brandishing or using a firearm may ultimately constitute a legal self-defense under the right set of facts, but it remains a hypothetical situation that never could truly be answered unless it actually happened.
Only time will tell us what happens to Burress’ freedom and future. He will be arraigned in Manhattan Supreme Court on the indictment. His attorney will file a motion (or motions) to challenge the grand jury proceeding and to make other legal arguments. I would anticipate that behind the scenes, conversations revolving around the possibility of a plea deal will still take place. It may take four, five or six months before we find out whether Burress’ attorney was successful with his motions, or the case becomes one of the trials of the decade, and Burress the unfortunate central protagonist in a ready-made Law and Order special.
The game is not over; Burress has a tremendously skilled attorney and advocate. Yet I wouldn’t want to be in Burress’ cleats right now…
Jeremy Saland is a criminal defense attorney and a founding partner in the Manhattan law firm of Crotty Saland, LLP. Mr. Saland has successfully represented clients accused of multi-million dollar tax fraud schemes to violent street level offenses. Mr. Saland’s analysis and commentary on legal issues has been sought out by a wide range of media outlets including the Associated Press, Sports Illustrated Online and AM New York. Presently the treasurer of the Small Law Firm Committee of the New York City Bar Association, Mr. Saland served as an Assistant District Attorney under Robert Morgenthau in Manhattan for seven years. As a prosecutor, Mr. Saland worked in both the Trial Division and was one of the first assistant district attorneys assigned to the Identity Theft Unit upon that unit’s creation. As a prosecutor, Mr. Saland had many notable prosecutions, including a multi-million dollar extortion of an NBA All Star, a fraudulent international professional graduate school test-taking ring, a million dollar online “pump and dump” scheme, and even a case of a man who kept a tiger in his Harlem apartment.
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