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Posted: Tuesday March 31, 2009 10:03PM; Updated: Friday April 3, 2009 1:18PM
Michael McCann Michael McCann >

Even if he avoids prison, Plaxico must await Goodell's punishment

Story Highlights

Plaxico Burress faces charges for criminal possession of a weapon

Adjournment of case until June suggests plea agreement will be reached

Even if he avoids prison, he would almost certainly be suspended by NFL

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Plaxico Burress' future in the NFL remains in a state of uncertainty.

The adjournment of the prosecution's case against Plaxico Burress until June strongly suggests that the New York Giants' receiver will reach a plea agreement with prosecutors.

Burress currently faces charges for criminal possession of a weapon in the second degree, a Class C felony that prohibits the possession of a loaded gun without a proper license outside the home or place of business. If convicted, Burress would face a minimum of three and a half years and a maximum of 15 years in prison.

Many commentators have expressed surprise as to the possibility of Burress spending years in prison for mere possession of a loaded gun without a valid license. Under New York law, however, his intent, purpose and justification for carrying the gun are irrelevant. The strict liability nature of the law has been championed by New York City Mayor Michael Bloomberg and is based on the assumption that possession of unlicensed loaded firearms correlates with increased crime. Bloomberg, in fact, demanded that Burress be prosecuted "to the fullest extent of the law" after the Nov. 28 incident.

It doesn't appear that Bloomberg will get his wish, as prosecutors appear willing to allow Burress to plead to a lesser offense -- a willingness that they have typically shown for defendants charged with this Class C felony.

In some respects, Burress is a worthy recipient of a plea deal. For one, his criminal history is limited to two dropped temporary restraining orders; his various civil lawsuits (he has reportedly been sued at least nine times since he entered in the league in 2000) and assorted team-imposed suspensions and fines are not relevant in a criminal context.

In addition, though this particular New York law is premised on strict liability, prosecutors may feel that Burress does not deserve such a stiff punishment. It does not appear, for instance, that Burress knew of New York's law or that his gun license (albeit from Florida) had recently expired. Moreover, the evidence does not suggest that he intended to use the gun against another person. In fact, it seems that he only carried the gun for emergency protection and self-defense. Burress might also benefit from suffering a gunshot to his thigh, as arguably he has already suffered a punishment of sorts.

Working against Burress' is his apparent lack of honesty and desire to cover-up the incident. According to published accounts, when Burress sought medical treatment he told doctors that his name was "Harris Smith" and that he had been shot at an Applebee's. In addition to the absurdity of a star NFL player using an assumed name in a hospital located in his team's hometown, Burress' lies could have led to government resources being wasted in investigating an Applebee's shooting that never occurred. Such an investigation could even have led to another person being wrongfully detained or arrested.

Burress' alleged discharge of the gun might also work against him in plea discussions. If the prosecution's claims are true, Burress clearly did not handle a loaded firearm in a responsible way. This irresponsibility connects back to the very premise of the law: by merely possessing an unlicensed, loaded firearm, Burress raised the probability that his (alleged) irresponsibility would lead to a crime. Plus, an accidental discharge of a gun may result in an innocent bystander being shot.

The desire of some politicians to turn Burress into a poster-child for the law may also dissuade prosecutors from letting Burress avoid jail time. Although statistics indicate that more than 80 percent of persons arrested on the same Class C felony receive plea deals -- many of which, particularly for first-time offenders such as Burress, do not include jail time -- those persons did not grace the front pages of the city's newspapers nor attract stern commentary from its mayor and other political leaders. Burress pleading his way out of jail time would clearly repudiate those politicians' wishes and perhaps also undermine the law going forward. Indeed, even Bloomberg opined that Burress' receiving less than three and half years in prison would constitute "a sham, a mockery of the law."

Burress' future in the NFL rests in the backdrop of his plea discussions. The Giants suspended him without pay following the incident and refused to pay him a $1 million signing bonus. A grievance hearing is scheduled for Wednesday, with the NFL Players' Association arguing on behalf of Burress. The outcome of that hearing should indicate whether the Giants will reinstate him or release him.

Getting an NFL team to employ Burress won't get him back on the field, however. Any plea deal would require Burress to acknowledge responsibility for breaking a law. Even if he avoids prison, he would almost certainly be suspended by NFL commissioner Roger Goodell for violating the league's personal conduct policy. The policy empowers the commissioner to sanction any player whose conduct is "detrimental" to the league, with "detrimental" determined by the commissioner. Pleading guilty to a crime would unquestionably justify a suspension.

The length of the league's suspension would rest entirely in the hands of Goodell, who has tried to change public perception that NFL players act "above the law." While Goodell is not bound by his own precedent in issuing suspensions, consider the case of former Chicago Bears' defensive tackle Tank Johnson. After he pled guilty to misdemeanor weapon charges, which led to 45 days in jail, Johnson received a half-season suspension in 2007, with Goodell offering to lower the suspension to six games if Johnson attended counseling.

Following any suspension, market value and age would greatly impact Burress' chances for resuming an NFL career. Would any team want to sign a then 32-year-old receiver with such a checkered background? Would Burress consider playing in the new United Football League? Time will tell. legal analyst Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is a former chair of the Association of American Law Schools' Section on Sports and the Law.

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