People V. Plaxico Burress: Where Celebrity Is Not a Good Thing

Most often, celebrities and athletes get away with almost anything.  They come and go as they please.  If a rule is going to be bent, a law overlooked, a punishment changed, almost invariably, it goes in favor of the celebrity. 

Only just not this time in the case of Plaxico Burress. 

Yesterday, a grand jury indicted Burress on two counts of criminal possession of a weapon and one count of reckless endangerment.  By now we all know what Burress did—he thought it would be a good idea to bring a gun out with him one night. 

He thought it would be a better idea to try to secure this gun in his sweatpants of all places.  And then, said gun went off in the club, striking Burress in his thigh.

Now it looks like not only will Burress suffer the pain from the gun shot, the embarrassment of shooting himself in the thigh, but likely two to three years in a New York State penitentiary. 

Only if Plaxico wasn’t a famous athlete, he likely would already have this case behind him. 

I know there is a mandatory minimum punishment for these offense.  But what does that really mean?  Those punishments are only inflicted if a person goes to trial and loses.  Prior to that, an assistant district attorney is free to cut any deal, including little or no jail time. 

I can almost guarantee that a case involving someone like Burress, minus the fame—a similar crime committed by a person with no intent to commit a greater crime, no intent to harm, injure or threaten someone, and no past similar crimes—would conclude swiftly with a plea deal to a lesser charge. 

The chance of jail time would be slight, and the chance for significant jail time (more than a year), even less. 

Not this time.  You knew from the outset this was going to be different.  We heard from the Assistant District Attorney in the case. He wanted two years jail time.  We heard from the Manhattan District Attorney. Again, there would be no breaks for Burress.  And to make matters even worse for Burress, we heard from the Mayor of New York City.  He weighed in that he wanted to see the book thrown at Burress.

Apparently, this case warranted such dignitaries to render a public opinion, ensuring that if the ADA was inclined to cut a deal, he would do so at the wrath of his boss and the Mayor.  Feeling the pressure yet, Plaxico?

The only problem, Burress’ attorney apparently wasn’t paying attention.  He sat back quietly, tried to make a deal behind the scenes, and allowed voice after voice to speak out publicly in favor of Burress receiving a heavy prison term.

The legal system isn't always about what you can and can't prove;  it isn't even always about the law.  Sometimes it can be about perception.  Burress did not have the law on his side.  He could have had perception on his side if he and his legal team had got out in front of the story.  

Instead they waited.  Burress’ attorney, Benjamin Brafman, did not attempt to play the public relations game until it was far too late, and he tried to do so in the wrong setting.  Putting Burress in front of the grand jury not only was almost unprecedented, not only was it a major gamble, but it can almost definitely be said it was a mistake.

This is an open and shut case.  It is essentially a strict liability event.  Intent does not matter.  There are really only three questions that must be answered in the affirmative to first indict and then convict Burress on all charges:  Did he have the gun; was it registered; did it go off? 

Not very complicated. 

So, what could Brafman had done to save his client from jail, which is really his only responsibility.  He needed to play the public relations game, only not in front of the grand jury, and he needed to do so months ago. 

By putting Burress in front of the grand jury, Braffman arrogantly believed that a group of people sworn in to determine only if there was enough evidence to indict, would ignore that duty and let Burress free. 

It did not work.  The time to put Burress front and center, and Burress’ story front and center, was immediately after the event.  When the ADA, and the DA and the Mayor were speaking out advocating holding Burress’ feet to the fire, Brafman and Burress needed to get out there.

The government was playing politics, using Burress’ predicament to show how tough on crime they were being.  What Brafman and Burress needed to do was show that the government was not being tough on crime; they were not applying even-handed justice; and they were not trying to treat an athlete like everyone else. 

They needed to shout to anyone who would listen, that the government was actually doing the exact opposite.   

Everything Burress reportedly did in front of the grand jury, needed to be done not behind the closes curtain of the grand jury, but in the press, directly to the public.  That may have put the pressure on the government to make a deal, and limit prison exposure for Burress.

They needed to talk about the specific facts of this case, in particular the gun.  It was an unregistered gun, but it wasn't a stolen gun.  It wasn't any type of automatic rifle that Burress should not have otherwise had.  Had he not mistakenly failed to register it in New York, he would not have committed a crime.  And in fact, Burress had registered the gun, just in another state. So it is not like he owned this gun and figured he didn't have to be bothered with the registration requirements at all.

They needed to say over and over again it was a mistake by Burress.  But he had no intent of committing another crime with the gun, he had no intent of causing anyone any harm with that gun.  

Brafman and his associates and paralegals and interns needed to pour thru recent similar cases in New York where someone was arrested for carrying an unlicensed weapon.  Find out what type of penalties people with no prior record received.

I have not done this research, but I would assume these people received far lighter sentences than what the government offered Burress, and what Burress now faces if he loses at trial. 

Now, with the indictment, and with Burress having played his hand in front of the grand jury, essentially handing the government an open and shut case at trial, Brafman is out of leverage.  They tried grand-jury nullification.  It failed. 

All that is left is to roll the dice at trial, try again for jury nullification (to get the jury to ignore the law out of sympathy for the client’s situation).  A deal has to be out of the question for the government. 

Why would they now agree to anything less than two years in prison?  That is a massive amount of time for someone in Burress’ shoes. 

So, what is your next move counselor?  Because if your high profile client winds up spending two to three years in jail for a crime of stupidity, with no victim and no intent to commit a larger crime, what is that going to do to his career, and how is that going to look on your resume?