Kallas Remarks by Steve Kallas
Nobody could really be surprised on Monday when it was announced that Plaxico Burress had been indicted by a Manhattan grand jury on two (felony) counts of criminal possession of a weapon in the second degree and one (misdemeanor) count of reckless endangerment in the second degree. Nor could anyone have really been surprised when Antonio Pierce was not indicted by the same grand jury. (Listen to the author’s discussion of the case on WFAN radio in NYC at WFAN.com under Joe and Evan audio).
As was discussed in this column when the case started (see Kallas Remarks, 11/30/08), because of a change in the gun laws of New York back in 2006, what back then was an offense that could be pleaded down from a Class D felony (mandatory minimum two years in jail) to a misdemeanor (and little or no jail time) is now a Class C felony (mandatory minimum three-and-a-half years in jail) which, generally, can only be pleaded down to a Class D felony (and, thus., the accompanying two years in jail).
WHAT WAS HAPPENING FOR THE LAST NINE MONTHS?
What appears to have been happening was that Plaxico’s lawyer, the brilliant Benjamin Brafman, was doing everything in his power to get an offer from the prosecutors to let Burress plead to a lesser charge and serve one year (or less) in jail. This is why you heard retiring DA Robert Morgenthau say last week that Burress essentially wanted to agree to a year in jail and the prosecutors wanted Burress to serve two years.
Really, there was very little real change from then until now.
WILL PLAXICO PLAY THIS YEAR?
Referred to in this column as Plan B for Plaxico (see Kallas Remarks, 6/20/09), the defense had hoped to put the trial off until after the 2010 Super Bowl and maybe get Plaxico one final (big?) payday. Originally it was a hot topic in the press (you remember, the Bears were interested, the Jets were interested, etc.).
But that talk died down very quickly so as to be virtually unheard of now with NFL camps opening left and right. So what happened? Well, in the wake of Donte’ Stallworth’s “indefinite” suspension and Michael Vick’s indefinite or (maybe) six-game suspension (I’m not even sure what to call it), it seems that the Commissioner somehow got the message out that Plaxico will either be suspended indefinitely or for most or all of the season.
While others think he still might play this year (and I agree it was a brilliant thought by his defense team), it says here that the NFL won’t let Burress play in what they (the NFL) would probably think is a circumvention of the legal system. Of course, Burress is innocent until proven guilty (isn’t he?) and one could make a case that he should be allowed to play. But, to this writer, that’s a long shot. The silence of the NFL teams is deafening (don’t you think he’d be signed already if a team thought he would get league permission to play?).
We’ll see what happens on that front.
WITH THE INDICTMENT NOW HERE, WHAT’S A LAWYER TO DO?
Well, Ben Brafman took a shot (albeit a long one) that maybe the grand jury, when faced with the (now ex-) New York Giant and Super Bowl-winning receiver, would somehow vote not to indict him. Now, both the lawyer and the client are in a tough spot. You’d have to think that Burress had to admit to the crime when he testified before the grand jury. Maybe Brafman can still get the two years his client was offered last week. But, if he was going to do two years, he should have gone in a month or two ago and hope for a Michael Vick-like comeback (of course, Vick isn’t signed either).
Maybe Plaxico wants to go the distance and take a shot with a jury. He’s got the right lawyer and all he needs is one juror to stand tough (you know, maybe a huge Giant fan or someone who hates the system). While that’s not out of the realm of possibility, it’s a real long shot. If he goes to trial and gets convicted, he’s probably looking at three-and-a-half years, unless the prosecution agrees to a lesser sentence (unlikely if this goes to trial as opposed to a plea deal).
WHAT ABOUT ANTONIO PIERCE?
It was hard to believe that Pierce would get indicted and, thankfully, he wasn’t indicted in this case. It seemed to be a common sense approach – Pierce did what most people would have done in his situation. Maybe the prosecutors were squeezing him a bit, but he can go to training camp now without an indictment hanging over his head and with no penalty from the NFL.
WHAT’S THE LESSON(S) TO BE LEARNED?
Well, the security guards at the New York nightclub where this happened probably thought they were doing Burress a favor when they let him talk them out of confiscating the gun. We probably never would have heard of this if that had happened (and, of course, had it been Joe Blow with the weapon, it probably would have been confiscated and/or Joe would have been denied entrance).
But the real lesson here, because of mindless shootings in the past decade in New York (before the law was changed), is that New York takes its gun laws very seriously, that the laws were changed specifically so someone like Burress (that is, someone who carries a loaded firearm in New York without a New York permit) would do time and that grand jurors take their responsibilities seriously.
The timing for Burress has been terrible. Absent a miracle, the time that he will do will be even worse.
© Copyright 2008 by Steve Kallas. All rights reserved.