In Burress Case, Straightforward Facts but No Quick Solution

[ppodlesny]

http://www.nytimes.com/2009/08/03/nyregion/03plaxico.html?hpw

 

Ever since Plaxico Burress accidentally shot himself in the thigh in a crowded nightclub last November, the facts of the case have hardly been disputed.

 

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Related

Former Giants Star Defends Himself to Grand Jury in Weapons Case (July 30, 2009)

Times Topics: Plaxico BurressMr. Burress, who was a wide receiver for the New York Giants at the time, possessed an unlicensed gun. His teammate, Antonio Pierce, drove Mr. Burress to the hospital and kept the gun in the glove compartment of his car after the shooting.

 

Despite this straightforward set of facts, this case has defied a simple solution, and raised questions about mandatory minimum sentences, the role of mercy and leniency in the justice system and the treatment of celebrities facing legal troubles.

 

To Mr. Burress’s lawyer, Benjamin Brafman, and Mr. Pierce’s attorney, Michael F. Bachner, the case has dragged for the past eight months because of an overzealous prosecution. The Manhattan district attorney’s office, however, views it as a carefully considered case that follows the office’s norms.

 

After months of plea negotiations between the district attorney’s office and Mr. Brafman, whose client was charged with second-degree possession of a weapon, ended in a stalemate, the case was sent to a grand jury, which could vote on an indictment as early as Monday.

 

“I am frustrated, I am angry, but most of all I am deeply saddened by the lack of compassion and the lack of flexibility,” Mr. Brafman said. “It could have ended eight months ago if anyone were willing to have a sane, rational conversation with me about a reasonable solution.”

 

If convicted of second-degree possession of a weapon, Mr. Burress would have to serve at least three and a half years in prison — a scenario that Mr. Brafman said had made plea negotiations difficult. Before the mandatory minimum law was imposed three years ago, Mr. Brafman said, his client probably would have received only probation or several months in jail at most.

 

But even with the mandatory minimum, Mr. Brafman has maintained that Mr. Burress deserves leniency because he bought the gun legally in Florida, he did not possess the gun to commit a crime, he was the only person injured and he was forthcoming and cooperative with the authorities. Mr. Burress also does not pose a threat to society, Mr. Brafman added.

 

“For an isolated act of poor judgment in which nobody else was hurt, this man may be separated from his family for several years and will lose a brilliant career,” Mr. Brafman said.

 

In contrast, Mr. Brafman noted that Donte’ Stallworth, a Cleveland Browns wide receiver, was sentenced in June to 30 days in jail and two years’ house arrest for killing a pedestrian while he was driving drunk in Miami.

 

But Mr. Brafman’s call for sympathy does not resonate with everyone.

 

“When I talk to the teenager who’s in a wheelchair today because he got a bullet in the head when someone was shooting their gun in the air on New Year’s Eve, I’m less sympathetic to those who are worried about losing a few years of a multimillion-dollar contract,” said Paul Helmke, the president of the Brady Campaign to Prevent Gun Violence.

 

Mr. Helmke said Mr. Burress should receive at least the mandatory minimum jail sentence because his irresponsibility put others in danger.

 

Robert M. Morgenthau, the Manhattan district attorney, declined to comment for this article.

 

A two-year sentence is the standard offer for a first-time offender facing the same charge as Mr. Burress, according to a Manhattan criminal lawyer with intimate knowledge of the district attorney’s plea-bargaining policy. But the lawyer, who requested anonymity so he would not hurt his relationship with the office, said that prosecutors do consider mitigating factors, and that Mr. Burress seemed to deserve some leniency.

 

“I think that giving Plaxico a year and then the equivalent of a year’s community service would have been perfectly sufficient,” the lawyer said.

 

But the fact remains that, legally, Mr. Burress is on fragile footing because he admitted to possessing a gun that was not licensed in New York. And so his hopes lie in either the grand jury, a trial jury — if the case makes it that far — or the district attorney giving him a break, a mercy plea that legal experts say is a rare but essential part of a justice system tailored to allow for the human element.

 

Both Mr. Burress and Mr. Pierce testified last week before a 23-member grand jury. Those jurors, unlike the members of a trial jury, act as the “conscience of the community” and are instructed that they may throw out charges even if evidence suggests a crime has been committed, legal experts said.

 

“They’re going to be asking themselves: ‘How dangerous do I think this was? Do I think they’ve suffered enough?’ ” said Sara Sun Beale, a professor at Duke Law School.

 

Mr. Bachner said he hoped the grand jury would realize that his client did not do anything wrong in the first place. In fact, Mr. Bachner said, Mr. Pierce told both Giants and N.F.L. officials that he had the gun, and they told him to hold on to it.

 

Mr. Brafman and Mr. Bachner, both former prosecutors under Mr. Morgenthau, said they believed their clients’ celebrity hurt them in this case.

 

“It appears to me that they have expended more time, more effort and more money in investigating a gun possession count that should have been very easily resolved than they do in the average homicide case,” Mr. Bachner said.