Plaxico Burress Drops “Hail Mary”: Manhattan Grand Jury Indicts Receiver for Criminal Possession of a Weapon in the Second Degree (PL 265.03)

Robert Morgenthau has a well coached team. He certainly had an advantage out of the gate with a lot of “Division I” prosecutors. When it came time to hit the field, his pass rush was relentless and his secondary was all over Plaxico Burress. In fact, Burress didn’t stand much of a chance of corralling in the “long ball” of “jury nullification.” Did Burress fumble before a Manhattan Grand Jury or was his quarterback sacked before he could toss the ball the distance of the field? I don’t know. I wasn’t there. Regardless, the Manhattan District Attorney’s Office has a “Giant” lead going into the fourth quarter and I don’t believe that Burress will display any game winning heroics.

So what happened? What kind of second half should we expect?

As I explained to Sports Illustrated Online, when Burress testified he attempted to sway the Grand Jury to not just understand how he lacked any criminal intent, was remorseful and the firearm was legally purchased/possessed in another state, but that the Grand Jury should disregard that law. This is the concept of “jury nullification.” Unfortunately for Burress, the law of Criminal Possession of a Weapon is quite clear. Criminal intent is not an element of NY Penal Law 265.03(3). Let me make that clear in case you missed it or I stuttered…Criminal intent is not an element of NY Penal Law 265.03(3). That’s right, merely possessing a loaded firearm outside one’s home or place of business and without a permit to do so is a “C” violent felony punishable by a minimum of 3.5 years and a maximum of 15 years in prison.

There have been some attorneys who believe Burress did the right thing by testifying in the Grand Jury. One self impressed legal blogger even boldly exclaimed that Burress’ attorney “nailed” it (boy was he foolish…I hope he has never told a client that “he nailed it” before!). If it worked and Burress had convinced the Grand Jury that an indictment was not the best route, his attorney would certainly be covered in Gatorade right now.

The countless coaches of the criminal courts can argue whether the strategy to put Burress in the Grand Jury was the right decision, but I think it is fair to say that in Burress’ case, once negotiations fell apart, what was his choice? Take two years or try to beat the case in the Grand Jury. Arguably, from a career perspective, how could Burress not have fought the case? 3.5 years or 2 years to his football career may have been a permanent termination of his contract, a/k/a, career, either way. That being said, if he recognized the gravity of the evidence against him and had taken responsibility early, he would have served a significant portion of his time already. While I am confident Burress and his attorney grasp the strength of the case, I am also confident they recognize what is/was at stake. For all of us reading this article and surfing the web…it’s much easier to play armchair quarterback then actual quarterback.

So where does this leave Burress? The prosecution may or may not re-offer the 2 years now that the Grand Jury has indicted him. As a prosecutor in Manhattan for 7 years I rarely, if ever, made the same offer post-indictment. Even it was re-made, Burress might reject it anyway. His attorney will certainly attack the case legally: Was the Grand Jury proceeding defective? Although it is not likely, do New York’s weapon statutes go too far as to fly in the face of the Second Amendment as we saw in the District of Columbia v. Heller (In Heller, the District of Columbia’s ban on an entire class of arms was found to be unconstitutional. A Brooklyn Supreme Court Judge recently found that the decision had no bearing on the New York statute)?

Maybe Burress can convince a trial jury he is remorseful and he lacks any criminal intent. As noted (again!), however, criminal intent is not an element. Even so, he may argue that he is an athlete, had a “bull’s eye” on his back and only had the gun for self defense. I mean, he is Plaxico Burress! As compelling as that sounds, if I still had on my “prosecutor hat” (they took it from me along with my “get out of jail free card” when I resigned), I would have a field day with this argument.

Is it Burress’ position that if you are an athlete, in the public eye, drive a nice car, have nice jewelry, etc. you should be held to a different standard (can someone say “ego?”)? Is there a “reasonable person standard” that dictates your “average Joe” can’t carry a gun if he wears Gap jeans and drives a Honda unless he has a permit, but an “affluent person standard” that states that if you are famous, drive a Mercedes or have some “bling,” you don’t need a permit? Moreover, if he was so concerned and affluent, what was he doing out without security or why didn’t he apply for a permit like everyone else who legally carries a firearm in NYC?

Taking this argument further, Burress likely argument is that he would only have used the gun if he was confronted or put in real imminent and life threatening danger. Yet, who would establish this level of danger? If two men approached him merely with their fists and said “give us your earring,” could he respond with the force of a firearm? Is that a legal self defense? Obviously, this is a bare bones assessment and brandishing or using a firearm may ultimately constitute a legal self defense under the right set of facts, but a hypothetical situation that never could truly be answered unless it actually happened.

Only time will tell us what happens to Burress’ freedom and future. He will be arraigned in Manhattan Supreme Court on the indictment. His attorney will file a motion or motions to challenge the Grand Jury proceeding and to make other legal arguments. I would anticipate that behind the scenes the conversations will still take place as to plea deals. It may take four, five or six months before we find out whether Burress’ attorney was successful with his motions or the case becomes one of the trials of the decade and Burress the unfortunate central protagonist in a ready-made Law and Order special.

The game is not over…yet. We have only reached half time. Burress has a tremendously skilled attorney and advocate. In fact, one of the best. But I’ll tell ya’ what…I wouldn’t want to be in Burress’ cleats right now.

Updated: