Are Plaxico Burress and His Lawyer Overplaying Their Hand?

Mark HauserCorrespondent IIJune 22, 2009

LEBANON - JANUARY 14: New York Giants wide receiver Plaxico Burress, right, walks with members of his legal team as he arrives at the Lebanon County Courthouse January 14, 2009 in Lebanon, Pa.  Burress is scheduled to appear in a civil trial in a dispute with an automobile dealer over what he owes in damages to a vehicle supplied to him by the dealership. (Photo by Chris Gardner/Getty Images)

For background purposes, I am a practicing criminal defense attorney in Philadelphia.  While I have never practiced in NYC, I have handled a lot of gun cases.  And even though it is hard to get all the facts in the Plaxico Burress case, at least I am somewhat qualified to comment on Burress’ gun charges. 

That being said, if Burress was offered a deal with a three month jail sentence (or two months with 1500 hours of community service), as has been unofficially reported, it appears to me that Burress is making a mistake by turning it down and going to trial.

I don’t know whether to blame Burress or his lawyer, Benjamin Brafman (or both), because I don’t know what advice Brafman has given Burress, or whether Burress has taken his advice.  But if they really plan on going to trial--as opposed to buying more time hoping the NYC DA’s office eventually drops their jail time demand--it seems wrong on so many levels. 

Here’s why:

1.    Going to trial is always wrong if there is no defense, the evidence indicating guilt is clear, and you will get more jail time if you are found guilty than if you had taken the deal.  In Burress’ case, there does not seem to be any dispute that Burress was in possession of a gun, and that he did not have a license to carry a gun in New York. In addition, he can’t argue ignorance since his Florida license to carry was expired.  His only argument is that he did not know his license was expired AND he did not know that his Florida license was not legal in New York.  Neither of these are valid defenses because he is responsible for renewing his license and knowing the law.

2.    If he does not take the deal and he is found guilty (which seems extremely likely), he will be sentenced to three and half years in jail unless the DA's office decides not ask the judge not to enforce the mandatory minimum (not going to happen after a trial).

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3.    New York Mayor Michael Bloomberg called the hospital's actions (not reporting the illegal gun) an "outrage" and stated that they are a "chargeable offense." Bloomberg also urged that Burress be prosecuted to the fullest extent, saying that any punishment short of the minimum 3½ years for unlawful carrying of a handgun would be "a mockery of the law."   Now, a deal less than the mandatory minimum could still happen since first time offenders, whether celebrities or not, are routinely offered deals for gun charges in NYC (according to what I read, and this would be standard practically anywhere).  But, for the NYC DA’s office to go against Bloomberg's wishes and make him look bad with an offer without any jail time seems extremely unlikely.

4.    If Burress had taken the deal on March 31, 2009, he could have been out by June or July 1, time enough to play football this year and every other year (except for any NFL suspension from commissioner Roger Goodell which he is going to receive).

5.    By delaying dealing with this legal matter, he does not solve the problem of being able to play this year since he is still going to receive a suspension from Goodell.

Maybe Burress and Brafman know something that I don’t know, but based on the publically known facts, it seems likely that they are overplaying their hand. 

Burress is not the number one pick in the NFL draft where he has a lot of bargaining power; he is a defendant without a good defense.  Maybe he will eventually realize this.