- Lester Munson, Legal Analyst
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On Friday, a judge in Washington, D.C., will decide whether Gilbert Arenas will serve time in jail as the result of the incident in the Wizards' locker room on Dec. 21 involving Arenas, his four handguns and a continuing argument with teammate Javaris Crittenton. Arenas quickly admitted that he was guilty of violating District of Columbia gun laws and was suspended for the rest of the season by NBA commissioner David Stern. Based on a pre-sentence report from probation officials, a recommendation of three months in jail from prosecutors and Arenas' plea for probation, Superior Court Judge Robert E. Morin will decide whether Arenas will be incarcerated. The charge, the guilty plea and the admitted show of guns in a heated argument raise legal issues. Here are some of the questions and their answers:
Why do prosecutors insist that Arenas must serve time in jail?
In a prodigious and occasionally masterly presentation of their views, the prosecutors express their conviction that Arenas has "fabricated a story" of what happened in the locker room. It is, they argue, a "better and more convenient story," that he concocted only when "there was no other explanation to mitigate his conduct." If he is willing to "color the truth" and "shade the facts" in his attempt to gain probation, the prosecutors assert, he has not truly accepted responsibility for his crime. Acceptance of responsibility is a critical factor in any sentencing decision. If Judge Morin agrees with the prosecutors and concludes that Arenas has lied in his accounts of the incident, Arenas is headed to jail.
Arenas has admitted guilt, and he has accepted the season-long suspension from the NBA without an appeal. Isn't that enough evidence of acceptance of responsibility to keep him out of jail?
Arenas and his lawyers from the firm of O'Melveny & Myers think he has accepted responsibility. But the prosecutors are particularly incensed at two of the claims made by Arenas and his legal team. First, he claims that he did not know it was illegal to bring a gun into the District of Columbia. That claim is nothing short of "ridiculous," the prosecutors say. In a team meeting at the Verizon Center in November of 2009 organized by the Wizards and the NBA, only a few weeks before the incident, representatives of the very same prosecutors' office explained to the team the absolute provisions of D.C. gun laws. NBA officials explained the league's zero tolerance policy on guns in NBA venues. Arenas claims he thought, after the meeting, that he could bring a gun into the locker room with the team's permission. None of the other players interviewed by government agents said they left the meeting with that understanding. And Arenas never asked for permission to bring guns into the locker room.
Second, Arenas claims the gun incident was, somehow, a joke. The government is particularly contemptuous of this claim, explaining that others who saw the confrontation "felt endangered." One unnamed player told investigators that he gathered his things and fled the locker room when Arenas laid out his four guns in front of Crittenton's locker. Although the government prosecutors acknowledge Arenas' past history of practical jokes, they are less than impressed with his sense of humor, citing an incident in which Arenas defecated in the shoe of Andray Blatche.
Arenas was arrested on an earlier gun charge seven years ago when he was playing for the Warriors. Is the previous charge a factor in this case?
Yes, it is a major factor in Judge Morin's decision. The Arenas legal team contends that Arenas has already paid a price for the previous charge in the negotiations with the government on his current guilty plea. The legal team's contention is that he was forced to plead to a more serious charge because it was a second offense. The government, however, views Arenas as a "recidivist," a repeat offender who now asks "for yet another chance to go on with his life without any meaningful punishment for his crimes." You do not want to be a recidivist in front of a sentencing judge. You especially do not want to be a recidivist on a gun charge in a place like the District of Columbia, which has no tolerance for gun violations. The Arenas lawyers have offered a clever argument about the previous offense, but it isn't likely going to help. The fact this is the second gun charge may be the deciding factor in the sentencing.
Will Arenas' celebrity help him or hurt him?
It has already helped him. Although the pre-sentence investigation by D.C. probations officers is a sealed document, it is clear from a footnote in the government brief that Arenas and his notoriety have made a favorable impression on probation officials. The government footnote indicates that the probation department will be recommending probation for Arenas. Arenas' lawyers report that a probation official, Frances Weekes, described Arenas as a "quiet and polite individual" who does not "display the swagger and personality of someone of his acclaim." But Arenas' celebrity and charm did not work with the prosecutors. They warn Judge Morin that Arenas "should be treated no differently" than any other individual who "brought four guns into Washington," "fabricated a story to conceal" what he was doing and "stated that he did nothing wrong and felt no remorse." The court, they say, would "certainly give" jail time to any such individual; and Arenas, "though famous, powerful, and wealthy should be treated no differently."
Arenas grew up in tough circumstances and has contributed to an extensive array of charitable activities. Won't his background and his service to the community help him avoid jail?
Yes, there is no doubt that Judge Morin will consider Arenas' impressive record of charitable service, both organized and spontaneous. In a series of 32 letters of support, his legal team offers a remarkable record of gifts and service engineered by Arenas. The letters include tributes from two officials of the Wizards (a community relations officer and the equipment manager), a judge in Baltimore, Arenas' financial manager, a college student from Chicago who is financing his education selling Arenas autographs, a police officer from the U.S. Department of Homeland Security, a literary agent who represented Arenas in a book contract (since cancelled as a result of the guns incident) and an elementary school principal, among others. Portions of the letters are compelling and clearly show that Arenas is a generous and thoughtful superstar who has helped others ever since he entered the NBA. They will be a factor in the judge's decision.
So will Arenas be required to do time in jail?
He will do time in jail. It will be difficult, if not impossible, for Judge Morin to ignore the previous gun charge and the fact a sentence of probation will be viewed as evidence of special treatment of a celebrity athlete. There seems to be no doubt that an unknown citizen who was a repeat offender, was represented by a public defender and was charged with the same crime would be sentenced to jail. The government's assertions that Arenas lied about the event and made a clumsy attempt to cover it up are compelling arguments that will produce a jail sentence. Morin enjoys a splendid reputation as a jurist who is capable of independent and insightful decisions. He is the kind of judge who could rely on the letters of support and the pre-sentence investigation's apparently favorable recommendation to decide on a sentence of probation, but it is more likely that he will send Arenas to jail.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.
1dMarc Stein and Ramona Shelburne