Commentary

Burress testimony is desperate ploy

Originally Published: July 28, 2009
By Lester Munson | ESPN.com

Former New York Giants wide receiver Plaxico Burress will testify Wednesday before a grand jury in New York in an attempt to explain why he had an unlicensed .40 caliber Glock handgun in the city early on the morning of Nov. 29, in violation of the city's ban on guns. The decision to testify before the grand jury that is investigating him is highly unusual and raises legal questions. Here are some of the questions and their answers:

When it's obvious that he had the gun and that it went off accidentally, why would Burress testify before a grand jury that is preparing to charge him?

It is a desperation move. Burress and his attorney, the estimable Benjamin Brafman, are out of options. They have tried and failed to negotiate a guilty plea with minimal jail time. Robert Morgenthau, the legendary Manhattan district attorney, insists Burress must serve at least two years in the penitentiary. Instead of accepting the two-year sentence, Burress and Brafman have decided on a tactic that is tried very rarely. It is tried very rarely because it rarely works. Their hope is that Burress somehow will be able to convince the members of the grand jury that he did not understand the New York gun ban, that he registered the weapon in Florida and that he is the only victim of the crime. On that basis, they hope the grand jurors will vote to charge Burress with a lesser crime.

[+] EnlargePlaxico Burress
AP Photo/Carolyn KasterPlaxico Burress will face a skilled prosecutor without the aid of his own attorney in front of the grand jury.
What are the risks of testifying before the grand jury?

The risks are enormous. Burress will walk into the grand jury room alone. His attorney will be left in the corridor as the door closes on the grand jury's secret meeting. Burress then will face a prosecutor skilled in interrogation and could be questioned indefinitely. Burress easily could find himself admitting all elements and aspects of a violation of New York's gun law, digging himself into a deep hole. As the prosecutor questions Burress, he must answer truthfully. If he slips into a lie or a misrepresentation, he could face a perjury charge in addition to the gun charge. If the questions become difficult for Burress, he can call a timeout and consult with his attorney outside the grand jury room. But talking with his lawyer before he answers a tough question will not make a good impression on the grand jury. It may make matters worse for him.

What are the potential benefits of testifying before the grand jury?

If Burress is able to answer the questions in a forthright manner, he could charm the jurors into some level of sympathy for his plight. There may be some members of the jury who are not sympathetic to New York's draconian gun-control laws. There easily could be one or more jurors who believe the 2nd Amendment of the U.S. Constitution allows people to bear arms despite the city's ban. A bit of compassion for Burress and his plight, together with a bias against gun control, could lead to a jury vote in favor of a lesser offense. Instead of facing a charge that is a prison-time felony, the jurors could charge him with a misdemeanor. A grand jury charge of a lesser offense would change everything and offer Burress a chance to work his way out of the situation and preserve what remains of his NFL career. The best-case scenario for Burress would be that the jurors are impressed with his celebrity and would vote not to charge him with anything. These are highly unlikely scenarios, but Burress and attorney Brafman apparently have nowhere else to go.

This all sounds very strange. Is something else going on here?

Possibly. This might be high-stakes bluffing. DA Morgenthau also is threatening to file a charge against Giants linebacker Antonio Pierce, who took charge of the gun after the incident and might have been in technical violation of the gun ban. With Morgenthau threatening Pierce, and Brafman sending Burress into the grand jury, we might be watching two highly skilled and experienced attorneys in the final moves of a plea bargain. Instead of pursuing their threatened moves, the two advocates may make a deal that is satisfactory to both sides.

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.

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