PLAXICO (AT LEAST) HIRES THE RIGHT LAWYER

                             Kallas Remarks by Steve Kallas

 

While Plaxico Burress apparently can’t hold onto his gun like he holds onto Eli Manning’s passes, he finally did something right by hiring heavyweight attorney Benjamin Brafman to defend him on probable gun charges relating to the problems he caused (himself, among others) at the Latin Quarter in Manhattan on Friday night/Saturday morning.   

As you probably know by now, Burress, who, according to published reports, talked security guards at the club into letting him keep his weapon for “protection,” later shot himself in the thigh.  While the injuries don’t seem to be very serious, Burress has also put his good friend, Giant linebacker Antonio Pierce, in some possible legal jeopardy of his own.  According to published reports, Pierce helped stop the bleeding, took Burress to the hospital and tried to “hide” the gun. 

There are potential problems all around on this fact pattern.

WHAT’S A LAWYER TO DO?

 

While we don’t know when Brafman was actually retained (this is being written Sunday afternoon), someone probably advised Burress not to talk to the New York City detectives who showed up at his mansion in Totowa, New Jersey twice on Saturday.  While that won’t please the authorities, it absolutely was the right thing to do from a defense perspective.  Indeed, during the Giant game, announcer Kenny Albert stated that Brafman told the AP that Burress will surrender tomorrow (Monday) morning and (not surprisingly) will not make any statement.

    

Brafman seems, at first blush, to have a tough case to defend here.  But this guy has been in gun cases before.  He got Sean Combs (P. Diddy, now, I think) acquitted of gun charges arising out of a 1999 shooting in a Manhattan club despite the fact that three witnesses testified Combs held a loaded gun.  That result was a minor miracle (on cross-examination, Brafman, co-counsel with the late Johnnie Cochran, Jr., elicited testimony that every gun witness against his client had already filed a multi-million dollar civil suit against his client so the jury didn’t believe those witnesses and acquitted Combs of the gun charges).

    

This case, if the facts are as published in the press (and if it ever goes to trial, a whole separate issue), might be even more difficult.  Apparently, multiple security guards at the Latin Quarter knew Burress had a loaded gun.  Antonio Pierce apparently knew (at some point) that Burress had a loaded gun.  Plaxico Burress certainly knew it.  And none of these guards or Pierce is going to have a lawsuit against Burress because Burress shot himself (you can’t make this fact pattern up – nobody would believe it).

 

THE WHOLE CASE MIGHT BE BFORE TRIAL OR EVEN INDICTMENT

 

If there’s going to be some magic in this case, it might have to be before trial or even before indictment.  Again, according to published reports, it seems that Burress will be charged with criminal possession of a weapon in the second degree.  The law states:

“A person is guilty of criminal possession of a weapon in the second degree when: (3) such person possesses any loaded firearm.” 

There’s an exception for possession at your home or business that doesn’t apply to Burress at a New York club.

    

That’s a pretty simple law.  And, as a class C violent felony, a conviction, whether by plea or trial, results in at least three-and-a-half years in prison.  The problem for Burress is, as of two years ago, the law was changed to reclassify possession of a firearm as a class C violent felony.  Under the former law, possession of a loaded firearm was a class D felony for which, under certain circumstances (where a talented lawyer like Ben Brafman would have shined, convincing a judge that those circumstances existed), a sentence of probation could have been warranted.  But that door was closed two years ago and now, even if the prosecutor’s office exercises discretion to permit a plea to a class D violent felony (which is the lowest plea the prosecutor is permitted to offer if Burress is indicted for possession of a loaded firearm), the minimum sentence would still be two years in prison.  Prior to two years ago, a conviction for possession of a loaded firearm could have resulted in a non-jail sentence.  But not anymore.

    

So maybe Ben Brafman can head off a trial with a pre-indictment plea to a lesser charge.  But that’s a big hill to climb when every move, by both the prosecution and defense, will be watched and scrutinized by the New York and national media.  Post-indictment, unless the prosecution decides to ignore the plea-restriction laws, Plaxico Burress is either going to trial or prison and, maybe, both.

 

WHAT ABOUT ANTONIO PIERCE?

 

Well, he’s got some issues as well.  Apparently, Pierce took the (now unloaded) gun since, apparently, the security guards finally emptied it of bullets (after Burress accidentally shot himself) and tried to “hide” it, whatever that means.  If he did have it, at least it was unloaded by then so, unless Pearce has a prior conviction, his exposure is only to a misdemeanor on which, in all likelihood, he would not receive a jail sentence.  If he took the gun to New Jersey, however, there could be either federal law or New Jersey state law issues across state lines (one report I saw said the gun was in New York, another said a Giant “representative” picked it up in New Jersey), but that seems unlikely.

    

As of this writing, Pierce already had his lawyer talk to the New York authorities while he (Pierce) was in Washington beating the Redskins.  If Pierce decides to cooperate with authorities and he testifies before a grand jury, he receives immunity from (New York) prosecution for his (alleged) temporary possession of the gun.  This would ensure that he would be available as a witness in any future trial; if there is a trial and Pierce is not indicted, he would probably be expected to testify.  If Pierce does not receive immunity and is called to testify at trial, he would likely assert his fifth-amendment privilege against self-incrimination.  If Pierce does testify in the grand jury, it would be a good development for him and a bad development for Burress.  Of course, if it turns out that Pierce, contrary to what’s already been reported, never took possession of the gun, then obviously, that will be great for him.

 

WHAT ABOUT THE NFL AND THE GIANTS?

 

Well, the NFL gun restrictions seem to apply only to NFL games, practices and sanctioned NFL events.  While there is, generally, a policy against guns at any time, certainly, if properly licensed (apparently not the case here), there’s little they could do.

    

But the team could step in and do something and that’s a fascinating dilemma.  People like Mike Francesa are already saying this is the last straw for the Giants.  And he might be right.  But the Giants, who can obviously win without Burress, could still use that 6’5” leaper in the end zone to make big plays like he did last year.

    

The Giants could also, rightfully, say Burress is innocent until proven guilty (because he is innocent until proven guilty), suspend him for a game or two and bring him back (if he’s healed) for the end of the year and the playoffs. 

    

It’s a tough spot for the Giants, who have always presented themselves as a class organization but have had to deal with minor issue after minor issue with Burress.  This, obviously, is now a major issue.

    

Also interesting will be the reaction to Burress of his teammates.  Pierce is a leader and, if he sides with Burress (a difficult issue right now, depending upon what happens to Pierce), the locker room will be fine.  But if the Giant players think there’s any chance that Pierce, an acknowledged good guy who was trying to help out a good friend, is going to get in any trouble over this, Burress will be persona non grata in the locker room.

    

Giant management might solve this problem quickly, but we’ll just have to wait and see what, if anything, they do to Burress.

    

The Giants seem to be marching towards another Super Bowl appearance and, right now, they would be the Super Bowl favorite.  But this case could undermine the magic that (to date) has been this season for the New York Giants.  Whether Plaxico Burress’s new lawyer can work some magic of his own remains to be seen.       

 

© Copyright 2008 by Steve Kallas.  All rights reserved.

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