Commentary

Indictments up the ante for Burress

Originally Published: August 3, 2009
By Lester Munson | ESPN.com

After listening to former NFL star Plaxico Burress for more than two hours Wednesday as the wide receiver answered questions about a gun incident in a nightclub this past November, the members of a grand jury in New York voted to indict Burress on two gun charges and a third charge of reckless endangerment. The grand jurors also voted not to indict Giants star linebacker Antonio Pierce, who was with Burress at the nightclub and during the hours after the gun accidentally fired. The indictments raise legal questions about Burress' strategy for defending himself and about his future in the legal system and the NFL. Here are some of the questions and their answers:

When he left the grand jury room last week, Burress said he was "honest" and "remorseful" in his testimony. He had hoped to avoid a charge altogether, or at least to minimize the severity of the charge. What happened?

The grand jurors obviously were not impressed with Burress' attempt to explain why he was in New York with an unregistered and loaded gun in their city on the night and early morning of Nov. 28 and 29. It is an obvious violation of New York's strict gun laws. Burress tried to explain things by asserting that he had no intention of using the gun in a crime, that he had registered the gun in Florida, and that the only victim of his crime was himself. (He wounded himself in the thigh when it accidentally fired.) It was all just an innocent mistake, he suggested, by a celebrity worried about his personal security.

Burress had hoped to convince some of the grand jurors that he should not be charged at all, but his claims did not work. The grand jury had the option of charging him with one count of possession of a gun in the second degree; but instead, it charged him with two counts, a significant escalation in the case against him. The first count was the expected one -- "possession of a loaded gun not in your home and not in your place of business," according to a spokesperson from the district attorney's office. To make its point absolutely clear, in the second gun charge, the grand jury said that Burress was carrying the gun with "intent to use it unlawfully against another." It was a direct rebuke, a clear signal that the jurors categorically rejected his explanations. Burress not only failed to convince the grand jurors but also made things worse for himself.

[+] EnlargePlaxico Burress
AP Photo/Mary AltafferPlaxico Burress gambled and lost with his grand jury testimony. Now it might be used against him at trial.

What's next for Burress? Is there still a chance he can settle things with New York District Attorney Robert Morgenthau?

The DA has insisted on a two-year jail sentence. Burress' risky trip into the grand jury room last week was an attempt to create some leverage that would help him negotiate a better deal. It has backfired. Burress is now in a very bad legal position. He must either agree in a plea deal to the two years demanded by the prosecutors or face a trial in mid-2010. At trial, he will face his sworn testimony to the grand jury in which he admitted every aspect and element of the crime. If he is then convicted at the trial (a very likely scenario), he quite possibly would face more than the two years now offered by the prosecutors. The sentence prescribed under New York law is 3½ to 15 years on each of the two gun charge counts.

Will Burress be able to resume his career in the NFL?

Right now, there is no legal obstacle for Burress to play in the coming NFL season. His trial will not begin until long after the 2009 season ends. He is legally able to work until the trial begins. He will be under some travel restrictions because he is free on bond, but it would be a simple matter to obtain permission to travel for an NFL team. Whether an NFL team would be willing to sign Burress while he is under indictment is a separate question.

If he is convicted at the trial in 2010, Burress would face serious time in the penitentiary, and his NFL career would be in serious jeopardy. There is the matter, too, of a possible suspension by NFL commissioner Roger Goodell under the league's code of conduct. Burress was suspended by the New York Giants, his former team, after the incident in November, and the Giants eventually released him. But so far, Goodell, perhaps waiting for developments in the legal system, has not levied a league-imposed suspension. If that happens, Burress clearly won't be eligible to play.

What about the charge of reckless endangerment against Burress?

The reckless endangerment charge is another rejection of what Burress said to the grand jury. His claim to the grand jurors was that he was carrying the gun merely to protect himself, and that the gunshot injured only himself. This additional and somewhat surprising charge tells Burress and his attorney, Benjamin Brafman, that the members of the grand jury were not convinced of Burress' sincerity or veracity. He told them he did not do something. The jurors then charged him with doing exactly what he said he did not do. The charge is more important as a signal than as a crime. The maximum sentence for reckless endangerment is only one year in the penitentiary and quite likely would be served concurrently with the sentence for the gun charges if he is convicted.

Pierce, Burress' teammate at the time, had the gun in his possession for at least 25 minutes after the incident in the nightclub. Why didn't the grand jury charge Pierce with possession of a gun?

A charge against Pierce apparently was never a serious possibility. He did not bring the gun to the club. He did not own the gun. He did not load the gun. He merely was trying to help out after Burress had created the situation. Although he may have been technically in possession of the gun, he was doing only what was necessary to try to end the danger and to begin to solve the problems Burress had created.

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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