Walker and Dailey then discussed the fact that if he pleaded guilty to the lesser charge of aggravated assault—the option he ultimately chose—the sex charges would be dropped and he would get three years' probation before the NBA draft. If he were drafted and his probation record was clean, at the end of his probation he could have the court reduce the offense to a misdemeanor and set aside the guilty plea on the felony conviction. He could then enter a plea of not guilty to the misdemeanor, and, Walker says, "the matter would be discharged, and he will not have any offense on his record. He can even say, 'I have not been convicted of any charge.' With that guarantee, Dailey could be sentenced four days before the draft—all teams would understand he would have no jail time—and after three years he would have an unblemished record. This situation in California law is called a 'wobbler.' The legislative intent behind it is that a man's life is looked at in totality rather than for one instance. He had no record for being aggressive and no sexual background. He's the only client I've ever had that I've been able to bring to the house, and my wife hates the work I do. She thinks I'm always defending crooks and getting them off, but I tell her I make the police honest, I make the prosecution honest, the judge honest. After all, I'm a sworn officer of the court. I had two cracks at the case [if it went to trial]. First, the ID. Second, 'So what if I were there? What did I do?' Difficult, but if I got a hung jury, the case is unlikely to be tried again."
And so Dailey forsook his proclaimed innocence and pleaded guilty to aggravated assault in order to accept a three-year probation and the prospect of a huge pro contract. Whether Dailey was guilty or not, a defense attorney willing to risk a conviction and the termination of his client's basketball career might have gotten Dailey off. But Fazio says, "If Dailey is not guilty—and I'm convinced of his guilt—let him come back here and withdraw his guilty plea, and we'll try the case."
That's just one of the things San Francisco basketball fans can think about in the empty winters ahead.