When guns were pulled in the Washington Wizards locker room, it was hardly a big secret or a deniable event.  Gilbert Arenas must have figured out pretty quickly that he had a problem.  Fortunately for Arenas, he fit into that special category of potential defendants who had both the wherewithal and situation that lent itself to an issue yet to be resolved: Does Heller mean anything and Is there really a Second Amendment right in this country?

Before he stepped foot in a courtroom, Gilbert Arenas cut a deal.  He gave it up before he started to fight.  Addidas cut him loose immediately after his plea. Was that part of the plan?

Arenas isn’t the first celebrity to stand in those special, and quite large, shoes.  As Doug Berman wondered:

There are, of course, legitimate reasons why a defendant, particularly a celebrity defendants, would hope to have criminal charges buried as quickly as possible.  There are also legitimate reasons why Gilbert Arenas might have decided to take a stand and challenge the charges against him.  Possession of a weapon in his place of business, the Wizards’ locker room, is but a tiny baby step from possession in the home.  As test cases go, this was a dream.

Jon Katz at Underdog raises the question that has to be raised in this case.

Wainstein is with the law firm of O’Melveny & Myers, Biglaw.  They have sterling prosecutorial credentials.  As defense lawyers, they are decidedly less illustrious.  They likely needed a sherpa to lead them to the criminal courthouse.  This is a typical way-station for prosecutors between official government gigs, where they pretend to be “white collar criminal defense lawyers” by flashing their prosecutor card at the door.

It appears that Wainstein has about an hour’s experience doing criminal defense, perfect for a partner at Biglaw.  His prosecution credentials, on the other hand, are quantifiable, with impressive titles that make the ignorant feel comforted.  It doesn’t mean the Wainstein isn’t a good lawyer. Even a great lawyer.  It also doesn’t mean that he has any competence to defend a person whatsoever.  But it seems to so many as if it should mean something important.

Somebody likely suggested that Gilbert Arenas get the best representation he could, and to people who don’t grasp how criminal law works, that means the one with the most marble in the waiting room and the most “resources”, meaning baby lawyers available for coffee fetching, around.  Big is a substitute for smart, just like tough is a substitute for smart, when you have no clue what you’re doing.  And so the Wizards point guard went to a lawyer who had a wealth of prosecutorial titles to his name to defend him from a gun charge.

It would be unfair to suggest that Wainstein’s advice to Arenas was less than sage.  I wasn’t in the room and have no idea what he had to say, or what Arenas asked of him.  Perhaps Wainstein told Gilbert that he wants to fight to the death and has a great opportunity to beat the case, make law, and turn him into an icon.  Perhaps Gilbert was crying and begging Wainstein to just rid him of this mess as quickly as possible.  Perhaps Gilbert was looking for a way out of his Addidas endorsement deal.  Maybe he preferred Converse.  Or Keds.

On his first appearance in court, Gilbert Arenas entered a plea of guilty on an information to carrying a pistol without a license, a lesser offense than he would have been charged had he not walked in with a deal in place but still a felony.  Prosecutors agreed not to seek a sentence of more than six months incarceration.  He will be sentenced in February, and the judge is free to impose a sentence outside the agreement, ranging from probation to five years imprisonment.

Arenas will be sentenced by Judge Robert Morin.  Jon Katz knows him from when the judge was a criminal defense lawyer, and thinks very well of him.  He encouraged Jon to become a criminal defense lawyer.

Judge Morin seems a walking example of pure modesty, whereas a very large percentage of criminal defense lawyers have huge egos; the modesty is a better approach, as long as that does not lead to lackluster and quiet performance in court. As a criminal defense lawyer, Judge Morin reached a great victory in reversing the Kirk Bloodsworth rape-murder conviction in the early 1990’s (see here, too) in Baltimore County, Maryland, when DNA was expensive and cumbersome to test. Through DNA testing he obtained Kirk Bloodsworth’s liberty. He did not even seem to toot his own horn over his earth-shaking Bloodsworth victory.

Almost all the stars were aligned in this case.  The only two stars out of place were Arenas and Wainstein.  And Arenas gave up without a fight.  We will never know whether he could have beat the case by challenging the law under Heller.  We will never know whether it was Wainstein or Arenas who made the decision, and whether it was a good choice or a bad choice.  It’s likely that Judge Morin is too good a judge to use the Arenas sentence to make an example of him rather than treat him like a human being, but we’ll never know whether Wainstein told Arenas how fortunate he was that, given a bad situation, he had the opportunity to fight. 

We will never know because Gilbert Arenas walked into court on day one to lose.  I hope, for his sake, that he made the right choice.