For those of you wondering what is going on with the criminal weapon possession case against former New York Giants wide receiver Plaxico Burress, the parties have created some recent news. Manhattan District Attorney Robert Morgenthau, who is charging Burress, implied in public comments that Burress, during plea discussions, has shown a willingness to accept up to one year of jail time.  Morgenthau went on to say that “the position” of the DA’s office is “that [Burress is] going to have to go to jail, whether by trial or by plea.”  Fantasy football players should take note.

But that’s not the end of the story according to Burress’ attorney, Benjamin Brafman, who commented in a telephone interview:

I think it was highly inappropriate for the district attorney to publicly comment on the status of plea negotiations, or to recommend a specific prison sentence in a case where my client has not yet been indicted and where the grand jury is at this very moment considering whether or not to indict.  The grand jury is supposed to be an independent body, not the tool of the district attorney. While I have great respect and admiration for Bob Morgenthau, I think in this case it was inappropriate to make the statements attributed to him.

Brafman thinks Morgenthau’s comments “may have irreparably prejudiced those proceedings” and is “now considering the legal options available to respond.”

While I cannot say with any certainty whether Morgenthau violated a rule or law when he commented about Burress serving jail time, I agree with Brafman that the comments “show a lapse in judgment,” if  Morgenthau was quoted accurately.  Morgenthau, who will have served as Manhattan’s district attorney for 35 consecutive years after he retires next year, no longer needs to appeal to voters.  Further, the comments are not defensible as assuring the public; there have not been any indications that the case against Burress is not strong and it is very public knowledge that the charges arise from Burress accidentally shooting and injuring himself.  As a veteran DA, Morgenthau should have had the sense to decline comment, or at least provide a safe comment.  Whether or not Morgenthau’s comments hurt the chances that Burress serves significant jail time, they hurt the DA office’s reputation.  The media attention toward Burress’ case is not exceptional (remember the coverage of the federal prosecution of Michael Vick or the O.J. Simpson criminal murder case), so we shall see if this affects the Manhattan DA office’s ability to enter into plea discussions in even higher profile cases, where the public figure is of greater notoriety and/or the alleged crime is more provocative.

Faisal Delawalla

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