The old saw is that when the facts are against you, argue the law. When the law is against you, argue the facts.  But here, everything is against Plax.  For many lawyers, begging would come to mind as the best option.  But I doubt that Ben Brafman is much for begging.

Given the situation, and the defendant, it was only natural that thoughts would turn toward the long ball.  Plaxico would do the unthinkable.  He would walk into the grand jury, face 23 (they will all show up for this one) good men and women (hopefully more men than women) and tell the truth.  He would tell them what he did and why he did it.  He will explain that one size does not fit all, and hope that at least a majority of the 23 accepts the idea that they, good citizens of New York County, will decide that New York’s very strict, very harsh gun law doesn’t fit the wide out.  They will return a “no true bill.” 

Despite our country’s rich history of nullification, it’s frowned upon by the law as a means of allowing a person to escape criminal liability.  It’s the longest of long shots, the ultimate end run.  It’s a “hail Mary.”  If there’s anyone in New York who can bring the “hail Mary” home, it’s Plaxico Burress.

Some say it’s crazy.  Some say it’s too risky.  I say Brafman nailed it.  When Ben Brafman puts his mind to a case, he’s one of the best there is.  And when it’s a high profile case, Ben puts his mind to it.

Vermont Lawprof Michael McCann considers the risks of the move:

In some other case, some typical case, McCann’s points would have some merit.  But one size does not fit all.  Plax has nothing to give away, and there’s no reason in the world for him to fudge his testimony.  There’s no secret awesome trial strategy to reveal.  On the law and facts, he dead as they come.  These are the cases that separate pedestrian lawyering from greatness.  Even when looking brilliance square in the face, some lawyers won’t recognize it.  Not even some lawprofs.

The SI article offers an explanation of the defense side by “New York criminal defense attorney and former Manhattan prosecutor Jeremy Saland.”   Gulp.  Apparently his bona fides as a criminal defense lawyer are inadequate, requiring him to establish his value by announcing that he was a former prosecutor.  It’s worth noting that Saland has a blog called New York Criminal Lawyer Blog, a sleazy, unadulterated, self-promotional, advertising blog.  It’s a shame that a decent blog name died for this purpose.

Saland attempts to explain what Brafman was thinking:

Burress’ appearance before the grand jury appears driven not by a desire to claim innocence but rather by a desire for jury nullification — meaning, in this case, the grand jury would decide to disregard the actual law which Burress appears to have broken.

“By humanizing himself beyond the perception that he is a privileged athlete, painting himself as remorseful, and establishing that he was the only one hurt, Burress hopes that he can mitigate and ‘nullify’ the evidence,” Saland says. “Yet, the reality for Mr. Burress is that unless he can sway the emotions of the grand jury towards ‘nullification,’ he lacks a true legal defense.”

On a superficial level, he’s accurate.  But if that was all Plax had to offer, he might as well surrender while he’s at 100 Centre Street, as that’s not going to do the trick. 

The grand jury testimony has got to distinguish between the purposes served by the law, to prevent people will ill-intent, criminal motives, from walking around the City with gun in waistband to shove into the ribs of some working man who’s just left the ATM, or the lesser culpable drug dealer just protecting himself from deal gone bad, and the well-intended, even constitutional, purpose of a target for the criminal. 

Plaxico Burress must show the grand jury that he didn’t carry a gun to stick anyone up.  He would never harm another human being deliberately (off the field). He wasn’t carrying the weapon to use it affirmatively against another person.  None of the purposes for which the Legislature made it illegal to possess a weapon apply to his situation.  One size does not fit all.

Plax has to explain to the jury what it’s like to be a sports hero in this town.  While most New Yorkers admire his efforts on behalf of the New York football Giants, there are people walking around who see a bullseye on his back.  Whether because he’s wealthy, and would provide a good yield to anyone who wanted whatever was loose in his wallet, or just because taking down Plaxico Burress, big time wide out for the Giants, would make some punk a big man on the street.  At least in his own, warped mind.  High profile people are targets to people with sick minds.  Plaxico Burress is one such target.  He may be big and tough on the football field, but he’s just a normal guy, trying to enjoy a night out with friends, and hoping to make it home without incident.  Is that too much to ask?

But Plax, that’s why New York City has a police force larger than the population of most midwestern cities.  True dat, but they aren’t standing next to you when the shiv slips between your ribs.  The reality, as Plax must explain, is that the cops will show up to cordon off the crime scene, but a little too late to stop the bleeding.  It’s not the cops’ fault.  They can’t be everywhere.  But that won’t save Plaxico Burress from death at the psycho’s hand.  He felt the need to be capable of defending himself, and he is, like it or not, a target.

Plax will be remorseful.  It wasn’t his plan to break the law, but just to survive a night out.  Is it wrong, when someone has a bullseye on his back, to want to survive?  Is it better to break no law but lie dead on the floor?  Since Plax would never use his gun offensively, criminally, against another person, is the purpose of this harsh law served by prosecuting him?  Is anyone better off by putting Plax in prison for years?  Years!  That’s what this law demands.  Does it make any sense this time? He’s not the man for whom this law was intended.  One size does not fit all.

And there’s no downside, as McCann suggests.  There’s no trial strategy that might be spilled inside the grand jury.  There’s no trial strategy beyond nullification.  You can bet your life that Ben Brafman prepared Plax within an inch of his life for this grand jury testimony, and should he testify at trial, there will be no inconsistency.  Nor should there be.  There’s no reason for Plax to lie.  The truth is the best he’s got, and the only thing to do is tell it well.

Will it work?  Who knows, but given what’s at stake and the options available, it was a bold move.  Why pass up the first opportunity to prevail upon the soul of the grand jurors to serve a higher purpose than rubber stamp an indictment.  There are too few chances to pull down the long ball to pass up this first and ten opportunity.  It’s just a matter of doing it well, doing it right, and there aren’t many lawyers capable of clearly understanding how to make the most of this opportunity, maximize the chance for success.  There aren’t too many lawyers with the stomach to make such a bold play.

And if you’re wondering, should this attempt to nullify fail, anticipate that Ben Brafman’s next tactic, post-indictment, will be a major effort to apply Heller’s constitutional right to self-defense to Plaxico Burress’ reason for carrying a gun.  Given the particulars, this could prove to be the perfect case to put Scalia’s dubious dictum to the test.  I wouldn’t be surprised if Mark Baker was hard at work on the memorandum of law already.