The Case Against Jayson Williams:
Why Piling on the Charges, In This Case, Is Unfair

Former basketball pro, multi-millionaire, and philanthropist Jayson Williams is currently on trial in a Somerville, New Jersey courtroom, for what accurately could be described as his life. At 36 years old, Williams faces up to 54 years in prison.

Williams is charged with manslaughter and a number of other offenses, in a lengthy multi-count indictment. But the crux of the State's case is simple: Prosecutors claim that on February 13, 2002, Williams shot and killed 55-year-old Costas "Gus" Christofi with a Browning shotgun.

Christofi was a limo driver Williams had hired to shuttle several friends to and from his estate following a party at a posh nearby restaurant. (The party included four former Harlem Globetrotters -- who likely will now be witnesses in Williams's case.) At the time of the shooting, police claim, Williams, who had been drinking, had a blood-alcohol level greatly exceeding the legal limit.

If the crime alleged is a single shooting, why the lengthy indictment? Of course, prosecutors legally can often base many charges upon a single act. But should they, in a case like this one?

In this column, I will argue that the answer is no. Indeed, throwing the book at Williams, in this instance, may lead to an unfair trial.

According to opening statements by Williams' lead attorney, Billy Martin, Williams will testify in his own defense. He will not deny that the shooting occurred, but will testify that it was accidental.

No one disputes that Williams was an avid gun enthusiast with a valued collection in which he took great pride. Williams claims that, on the night of the shooting, he removed the Browning shotgun from its cabinet to show it off to his guests.

Then what happened? According to prosecutors, Williams recklessly shot Christofi. But according to Williams, he never even had his finger on the trigger. Instead, without warning, due to a defect, the gun fired -- killing Christofi. (Williams's attorney points out that this very same defect has embroiled the gun manufacturer in prior legal wranglings, unrelated to this case.)

Plainly, this case should be a simple one: Either the jury believes the shooting was an accident, or it believes the shooting was manslaughter. Logically, then, a single manslaughter charged should have been filed. But logic did not guide the Jayson Williams indictment.

Williams is also charged with "Hindering Apprehension," "Tampering with a Witness," and "Tampering with Evidence." All of these charges stem from prosecutors' claims that Williams disposed of his own blood-spattered suit, moved Christofi's lifeless body to make its position consistent with suicide, and persuaded witnesses at the scene to falsely claim that Christofi killed himself.

Certainly, these actions were illegal. But they are just as consistent with innocence, as with guilt. A drunk Williams may have feared a wrongful conviction. In the end, the core of the case is whether the shooting was accidental or reckless.

If it is found by the jury to be reckless, then tacking on these extra charges is gratuitous; Williams likely will face a long sentence anyway. If the jury finds the shooting to be accidental, then Williams' fearful, drunken, ineffective attempt to cover his tracks may be somewhat excusable.

The "Hindering Apprehension" charge is particularly weak. After all, Williams's plan (if any) was short-lived. Witnesses at the Estate came forward soon after the police arrived. And Williams' "apprehension" was not "hindered" significantly; he was charged and arraigned merely eight days after the incident.

In any event, charging each component of the alleged "cover-up" as a separate and distinct offense, while permissible, is more likely to mislead the jury, rather than paint a true picture of what likely happened.

The oddest feature of the indictment against Williams, though, is its first two counts: First, the indictment alleges manslaughter. Then it alleges, well, more manslaughter.

Since one person cannot die twice, how could prosecutors charge Williams twice for manslaughter in relation to Christofi's death?

The answer is, in part, that New Jersey, like several other states, divides the crime of manslaughter into degrees. First degree, or "aggravated manslaughter" in New Jersey, carries with it a particularly harsh sentence, ranging anywhere from ten to thirty years in prison. It requires proof that the defendant acted not only recklessly, but with "extreme indifference to human life."

In contrast, "reckless manslaughter" - with which Williams is also charged - is slightly easier prove. It requires only that that the defendant acted "recklessly" in causing the death of another. (Reckless manslaughter carries a sentence of up to seven years in prison - significantly less than that for aggravated manslaughter.)

The prosecutors know what they believe Williams did, and how serious they believe it is. They should pick the most appropriate degree of manslaughter - just one - and either prove it, or not.

The prosecutors in Jayson Williams's case plainly packed the indictment with every single charge they could possibly think of that might fit what they believed to be the facts of the case. There is a word for this all-too-common practice. It's called "overcharging" -- the decision to file every charge under the sun.

Usually, the reason prosecutors overcharge is to intimidate a defendant into pleading guilty to at least one offense. First, they fill the indictment with crimes that command severe or cumulative sentences -- even when such crimes are duplicative or only loosely supported by the evidence.

Then, by totaling up the cumulative sentences, and touting the most severe, prosecutors have an easy time placing fear in the hearts of unsophisticated defendants - not to mention worry in the minds of their attorneys, who are familiar with how the game is played.

Often, the defendant -- fearing life in jail, or in some cases, a death sentence -- pleads guilty to one of the listed charges. Ironically, that charge is often the most appropriate description of the offense prosecutors really believe the defendant committed -- the single offense that should have been alleged, and could have been tried, in the first place.

Overcharging is, in my view, the major reason why, according to the Bureau of Justice Statistics, ninety-five percent of convictions occurring within one year of arrest are obtained through a guilty plea.

Why don't the overwhelming majority of defendants take their cases to trial? Because the risk is simply too great. Armed with this knowledge, prosecutors often extend an offer that even an innocent person - one who stands a chance at trial - is too afraid to refuse. For most defendants in this position, the "devil they know" is better than the "devil they don't."

But what if a defendant faced with "overcharging" opts to try to slim down the indictment, by convincing a judge to strike some or all of its counts? That's just what happened in Williams's case, but, in this instance, it backfired.

Unfortunately, prosecutors responded by taking the matter before the grand jury for a second time. They returned with a Superseding Indictment that added a charge; to wit, "Possession of a Weapon for an Unlawful Purpose." The new charge increased by ten years the potential prison sentence Williams could serve.

Prosecutors shouldn't be allowed to penalize defendants like this, simply for exercising their right to their day in court, or for challenging prosecutors' charging discretion. In reality, however, they can and, perhaps too often, do.

If you polled random prosecutors and asked why they routinely engage in overcharging, the likely response - if candid - would be simply, "Because we can."

But should they?

The American Bar Association -- the national representative body of the legal profession, and the largest voluntary professional association in the world -- openly discourages the practice of overcharging.

First, the ABA's Criminal Justice Standards (section 3-3.9) prohibits charging without "sufficient admissible evidence to support a conviction." Put simply: Don't charge what you can't prove. The Williams prosecutors do seem to have honored this rule. They have sufficient evidence to support what they've charged.

But that's not the only ABA guideline. ABA standards also counsel that "the prosecutor should not bring or seek charges greater in number or degree than . . . are necessary to fairly reflect the gravity of the offense." (Emphasis added.) It is this rule that the Williams prosecutors have, in my opinion, broken.

How grave is Williams's offense? Certainly, it is very serious. According to prosecutors, a drunken Williams recklessly pointed his loaded gun at Christofi, touched the trigger and shot him dead. That is, if proven, a terrible act. But it does not merit life in prison.

This was not a premeditated murder; no one alleges that Williams planned his alleged crime, chose Christofi as his victim, or even had any grudge at all against the man. At worst, this was a case of drunken, dangerous boasting that went horribly wrong.

Williams quickly settled the victim's family's wrongful death suit for $2.75 million dollars, and paid what he owed. And he has expressed enormous, and seemingly genuine, remorse for his part in Christofi's death.

All things considered, had prosecutors chosen only to charge Williams with one count - namely, reckless manslaughter, carrying a potential seven-year sentence if convicted - would anyone, including the victim's family, who reportedly made peace with the defendant following settlement, argue that authorities were too light on this defendant, celebrity or not? My guess is no.

But the Williams prosecutors should beware: Sometimes, overcharging backfires.

Consider the 2001 prosecution of the then-twelve-year old Lionel Tate. Tate caused the death of his six-year old playmate. Despite his youth, prosecutors charged him with, and a jury convicted him of, first-degree murder. But the result was later overturned on appeal.

Or consider People v. Knoller, better known as the San Francisco "Dog Mauling" case. In 2002, a jury convicted Marjorie Knoller, a San Francisco lawyer, of second-degree murder and of involuntary manslaughter, after her dog fatally attacked her neighbor. Like Tate's, Knoller's murder conviction was overturned on reconsideration (this time, by the trial judge). Appeals are pending.

Overaggressive charging decisions like these waste taxpayer money, and undermine confidence in the system: People expect defendants to be charged with what they did, period -- not with any square peg clever lawyering can fit into an indictment's round holes.

What Lionel Tate and Marjorie Knoller did was terrible. But it wasn't first-degree murder, in his case, nor was it second-degree murder, in hers. An angry, violent child was charged as if he were a trained assassin; a reckless, careless dog owner was charged as if she plunged a knife straight into the victim's heart.

Martha Stewart's criminal case may also turn out to be a case of overcharging that backfired. As I discussed in an earlier column, the indictment is strange. It's also huge -- packed with different charges. (At forty pages thick, it reads more like a novel.) And some of them are a stretch. Indeed, Judge Cedarbaum may well throw out some of the charges for lack of evidence when the trial concludes next week.

Whereas Williams was charged with both the crime and the cover-up, Stewart, it seems, is charged almost exclusively with the cover-up -- false statements to the government, obstruction of justice, and the like. But if the government thinks she simply covered up something that wasn't, itself, illegal, should it really be throwing the book at her?

Deleting a phone message to cover up your insider trading, when an investigation is pending, is a serious crime. Deleting a phone message because you are innocent but fear it will look suspicious to investigators, is, in my view, a much less serious crime.

As with Williams, one must wonder, did the Stewart prosecutors heed ABA Standards, and pick charges appropriate to "the gravity of the offense"? Or did they just pack the indictment with every possible "creative" charge they could come up with?

Ultimately, it will be up to Jayson Williams' jury, composed of twelve women and four men (four jurors will later be randomly chosen as alternates) to decide whether the events of that fateful night amount to a tragic accident, or to manslaughter.

Unless the jury is instructed otherwise, it will be charged with the task of making a decision on each and every count before it. Thus, as the indictment currently stands, the jury could, in theory, find Williams guilty of both aggravated manslaughter, and reckless manslaughter with respect to the same victim.

The result? The prospect of two sentences for what is, in essence, the same crime. Is that justice? Or something dangerously close to double jeopardy?

To avoid that risk, shouldn't prosecutors be compelled to, simply, pick one charge -- the charge that reflects the nature and gravity of what they believe is the true offense -- and stand behind it?

When it comes to making charging decisions, bigger is not always better. The size of the indictment should neither jeopardize a defendant's right to a fair trial, nor coerce him into an unfair plea. Instead, it should be an accurate reflection of only those crimes for which an accused may be legitimately charged.