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January 22, 2010

Latest insights about Gilbert Arenas's likely punishment(s)

This terrific new ESPN piece, which is headlined "The ball is in Gilbert Arenas' courtroom: Looks like the Wizards star can keep his NBA contract.  His freedom? Maybe not so much," provides a very effective update on legal issues surrounding the various forms of punishment facing NBA star Gilbert Arenas following his illegal gun play last month in the Washington Wizards locker room.  Because the piece covers many interesting issues, I will quote it at length:

Facing the possibilities of termination of his Wizards contract, months of incarceration in a federal penitentiary or both, it is easy to see why Gilbert Arena might be worried.

But before Arenas concludes that his life has become unmanageable, here are two things he may want to consider.  First, close readings of a firearms clause in the NBA collective bargaining agreement and a punishment clause in the league's constitution show that termination of his contract will be almost impossible. And second, he needs to find a way to make a better impression on D.C. Superior Court Judge Robert E. Morin, because his first appearance in Morin's court was a bad start....

The [NBA's] constitutional provision specifically limits commissioner David Stern's powers over gun violations.  He can suspend a player for a "definite or indefinite" period, and he can fine a player as much as $50,000.  But that's it.  That is the beginning and the end of any punishment for a gun violation.

There is no provision for terminating the player's contract Any attempt by the Wizards to terminate the Arenas contract would run smack into those prescribed punishment guidelines, provisions that seem to have been negotiated in anticipation of the Arenas incident. It would be highly unlikely that the NBA's arbitrator, Calvin Sharpe, would ignore a firearms clause that is the product of specific bargaining between the players union and NBA owners. So Arenas might be feeling secure about the status of his contract.

But before he can feel secure about his next court appearance, he needs to do some image rehabilitation.  As they say, you never get a second chance to make a first impression; in this case, Morin's impressions matter.

As he faced obvious and serious problems under draconian D.C. gun laws, Arenas hired the right lawyer -- Ken Wainstein, the former U.S. Attorney for the District of Columbia and an advocate who knows his way around the D.C. criminal courts as well as anyone.

Wainstein quickly put together a highly advantageous plea bargain, reducing what easily could have been multiple felony charges on each of four guns to a single felony count.  To seal the deal, Arenas and Wainstein appeared before Morin on Friday for what should have been a routine courthouse ritual.  In any plea bargain settlement, the judge asks the accused a series of questions to make sure that there is complete comprehension of the arrangement.  None of the questions is a surprise, and the answers should be obvious.

But when Morin asked Arenas if he knew the maximum possible prison term for the charge against him, Arenas blurted, "Yes, six months."  Wrong answer.  The maximum term is five years.  Six months is the low end of the sentencing guidelines that Morin will consider when he sentences Arenas on March 26.

If Arenas wants to impress Morin with his contrition and his acceptance of responsibility, he must do better than that.  In the culture of the courthouse, the "six months" answer indicates the kind of casual and cavalier approach to the situation that can lead to a stiffer sentence.

Arenas must also do better as he faces a lengthy interview in the presentence investigation Morin ordered. Officers of the federal probation service will interrogate him on all aspects of his life, including a gun charge he faced in California seven years ago.  Mistakes and misrepresentation in the interview could make a bad situation even worse.  If Arenas manages to respond accurately and honestly to the presentence investigation, he will greatly enhance his chances of avoiding incarceration.

Lawyers who practice before Morin, a highly respected jurist, told ESPN.com that a prison term for Arenas is likely but not inevitable.  "It would be hard for the judge to do something for Arenas that he would not do for another young man without the money and the fame," one lawyer said.  "He already caught a break when they reduced it to one felony, and jail time seems likely."

But according to another veteran Washington defense attorney, if Arenas and Wainstein put together "a fabulous sentencing package that shows contrition and contributions to the community, then probation is possible."  Both lawyers spoke anonymously because of cases currently pending before Morin.

Richard Gilbert, a highly regarded defense attorney in Washington, told ESPN.com, "Judge Morin is thoughtful and thorough and would respond to a positive presentation from Arenas.  If he can persuade Judge Morin that he now 'gets it' and wants to do the right things, I would easily see a term of house arrest or time in a halfway house or some other sentence short of time in the penitentiary."

Some related posts on Gilbert Arenas' situation and other celebrity gun possession cases:

January 22, 2010 at 12:17 PM | Permalink


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Morin is a soft touch, Clinton-appointed, former APD. He routinely dumps repeat gun criminals out into the streets of DC to terrorize and kill people - so why would he lock up a guy who is unlikely to be a problem?

It might be nice to see someone take DC's gun laws seriously, but Morin isn't that guy.

Posted by: Ferris Bueller | Jan 25, 2010 10:08:59 AM

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