Brafman Seems To Admit That Plaxico Is Guilty

During a recent appearance on Sirius NFL Radio, lawyer Benjamin Brafman seems to acknowledge that, factually, receiver Plaxico Burress is guilty of carrying a loaded and unlicensed weapon in New York City. Brafman’s plan seems to be to attempt to persuade prosecutors to go easy on Burress, due to various factors, such as: (1) the gun was licensed in another state; (2) there was no intent to violate the law; and (3) no one -- other than Burress -- was hit by the bullet. If that fails, Brafman will try those arguments out on a jury. But the intent of the law is to ensure that one of the millions of people in Mahattan don’t get killed by a bullet from a gun that some moron is carrying in the waistband of his sweatpants. And we also think that Brafman is playing his cards a little too aggressively, on a couple of points. He argues, for example, that if Burress wasn’t a celebrity, he could have walked (or maybe limped) out of the night club and tossed the gun in the river. Also, in comparing Plaxico’s case to the Donte’ Stallworth situation, Brafman pointed only to the 30-day jail term Stallworth will serve for DUI manslaughter, and Brafman ignored the two years of house arrest. As to the timing of the litigation, Brafman says it’s “inconceivable” that the case could be tried before March 2010, which presumably is part of the broader effort to get Burress onto a team for 2009. One key fact here is that Burress hasn’t even been indicted yet. So no trial date can be set until a grand jury does its thing. So, yeah, Burress won’t stand trial until after the season ends. Finally, we think that Brafman attaches way too much significance to the “intent” issue. Plenty of laws apply on a “strict liability” basis, regardless of whether the defendant intended to do anything illegal. Listening between the lines, Brafman seems to be hoping for a jury that will choose to revolt against the letter of the law, substituting its own judgment for the judgment of the folks who wrote the laws. Look, Brafman is good. He’s smooth. And maybe he’ll be able to bamboozle a jury of “ordinary citizens” (i.e., undereducated people who are prone to be influenced by emotion and/or a visceral sense of fairness). But it’s clear that Burress broke the law -- the only question at this point is whether he can escape this mess with little or no jail time.