Commentary

Did Burress blunder in testimony?

Originally Published: July 29, 2009
By Lester Munson | ESPN.com

In a risky gamble that has lawyers shaking their heads in wonder, Plaxico Burress voluntarily walked into a grand jury room in New York on Wednesday and submitted to more than two hours of a prosecutor's interrogation about a gun incident that could put Burress behind bars for more than three years. The unusual action, its risks and its possible rewards, raises legal questions. Here are some of the questions and their answers:

Burress obviously was caught with a loaded gun in New York, a clear violation of the city's gun ban. How could the questions go on for as long as two hours?

Once Burress was sworn in to tell the truth, the prosecutor was free to dig into every detail of the accidental shooting that led to Burress' arrest. After the shooting, for example, Burress made what appeared to be a clumsy effort to cover it up, giving a false name at an emergency room and attempting to dispose of the gun. It is the kind of thing that is raw meat to a prosecutor, who could have asked a number of probing questions in search of other charges to file against Burress. Burress' answers, if he shaded the truth in any way, could lead to a charge of obstruction of justice or even perjury. Even if he told the entire truth about his actions immediately after the late-November incident, Burress could face charges based on his responses to the questions. Hiding the gun or moving it out of the city could easily result in serious charges on top of the original charge.

Burress was alone in the grand jury room. His lawyer was waiting outside. Would the prosecutor try to trap Burress into a blunder?

Yes. Just ask Barry Bonds or Chris Webber. It is not easy to sit alone before a prosecutor and a couple of dozen grand jurors. Even with hours of rehearsal and preparation, it can be difficult to resist the temptation to spin the truth or try to make yourself look better. Burress has already shot himself in the thigh. Under questioning, he could easily shoot himself in the foot. As soon as the transcript is prepared, the staff of the district attorney's office in New York will parse every sentence looking for a new charge to file against Burress.

[+] EnlargePlaxico Burress
AP Photo/ Louis LanzanoPlaxico Burress says he was remorseful and honest, but did the grand jury believe him?

What can Burress possibly accomplish with this maneuver?

His testimony to the grand jurors is an attempt to gain their sympathy for his predicament. His goal was to charm them into believing that he made a bad mistake, that he feels terrible about it and that he is entitled to some sort of compassion. It is obvious that he broke the law, but he is asking the jurors to ignore the law and to give him a break. It is the kind of gamble that frequently occurs in a trial. An accused individual asks the jury to ignore powerful evidence and consider other factors. It is known among lawyers and judges as jury nullification. The late Johnnie Cochran worked the nullification technique to perfection in the O.J. Simpson murder trial. Burress and his attorney, Benjamin Brafman, are trying something new -- grand jury nullification. If it works, Brafman will be the featured speaker at conferences of defense lawyers for the next five years.

Burress said after his testimony that he'd been "honest" and "remorseful" in front of the grand jury. Does that mean he confessed to the gun crime?

Apparently. If Burress told the members of the grand jury exactly what happened in the night club eight months ago, he has basically confessed to a violation of New York's ban on guns. He had a gun. It was loaded. He fired it accidentally and injured himself. That's it. The case is closed. The next step is to report to the penitentiary for a minimum and mandatory sentence of more than three years. The gun ban in New York is absolute. All of his admissions would be used against him in a trial if he is indicted and does not plead guilty.

Is it still possible for Burress to make a deal with the prosecutors that will save his NFL career?

Yes. In an unexpected way, Burress and Brafman have created a bit of leverage where none existed before. There is now some level of uncertainty about an indictment from the grand jury. If the grand jury votes to charge Burress with a lesser offense, or not charge him at all, it would be a humiliating defeat for New York prosecutors. If Burress connected with some of the jurors in some way, the grand jurors could charge him with a lesser offense. Brafman, a highly skilled and talented attorney, can use this uncertainty to try to cut a better deal. Robert Morgenthau, the legendary New York district attorney, said that Burress must do at least two years in the penitentiary. If Brafman is able to make a deal for less time, this maneuver worked.

If Burress' grand jury testimony does not work to his benefit, what is the worst that can happen to him?

Two nationally recognized criminal defense attorneys from Chicago, Michael Monico and Howard Pearl, agreed in interviews with ESPN.com that Burress could easily find himself in deeper trouble as the result of his visit with the grand jury. "He must admit everything," Pearl said. "There will be nothing left for the trial, and he may face additional charges." Monico added that, "There is a reason no one does this. It could be a disaster." Using the statements Burress made to the grand jury, prosecutors will be able to prove guilt at trial in a way that leaves Burress no room for objection or argument. A judge, after the trial, could easily conclude that Burress should be punished not only for the gun incident but also for trying to fool the grand jury and sentence him beyond the minimum three and a half years.

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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