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Richard Sherman went from potentially facing an extremely serious burglary domestic violence felony charge that could have carried up to life in prison to the probability that he will face little more than probation in less than 24 hours. So what happened?
Here’s a dose of my “Legal Easy,” to make this super simple. When news broke that former 49ers cornerback Richard Sherman had been arrested and booked on burglary domestic violence, it was unclear to many what that even meant. Had he committed an actual burglary? Had he harmed his wife or another family member? In Washington, illegally entering the home of a relative or refusing to leave someone else’s home is burglary domestic violence. The domestic violence designation doesn’t necessarily mean that assault or battery took place. It is merely chalked up to the relationship between the accused and the alleged victims, in this case, it was Sherman’s in-laws’ house. Burglary DV can be first degree or second degree. First degree requires assault against at least one person, OR, the possession of a weapon by the person entering, whether or not it’s used. The penalties are harsh if convicted. Burglary is always an extremely serious charge. In fact, it’s a felony, and in some states, if you burglarize a home and someone is killed in the process, you can serve life in prison without parole, even if you did not kill that person and even if you never imagined someone would die in the process. There have even been cases where a homeowner has tried to defend his home against a burglar and brought his own weapon out and been killed with it by accident. The burglars didn’t even bring weapons into the house, but because the homeowner was killed, even by his own weapon, in the course of a felony, the burglars were responsible for his murder. Even an unarmed, simple burglary could land a person behind bars for life under the highly controversial felony murder rule. Of course, whenever a felony is being committed things can escalate, and unanticipated things can go wrong.
In Washington, Burglary carries up to 10 years in jail for second-degree charges, but first-degree burglary carries up to life. In a 911 call that was released by KIRO radio, a man who was following Richard Sherman as he allegedly drove drunk and chased down his wife’s car told the 911 operator that Sherman may have a knife on him. “A kitchen knife?” asked the operator. “Yes,” he said. If Sherman did in fact have a kitchen knife on him and if he not only had it in the car but had it on him inside the in-law’s house, he could’ve been charged with first-degree burglary.
It was unclear if he ever entered the house. An earlier 911 call from his wife could have been interpreted either way, as him being inside or trying to get in. However, as more details came to light, three critical legal facts became clear. One, no one in the family was injured by Sherman. While an earlier 911 call by Sherman’s wife described Sherman as “wrestling” with one of her male family members, police later released information indicating Sherman had not physically attacked or injured anyone. The second fact that came to light is that police said they found Sherman outside when they arrived, attempting to get into the house. The third very important fact was that Sherman’s wife told a 911 operator he was allegedly drunk, and she claimed he had drank two bottles of liquor. Why are these facts so important? I will explain that in a moment.
Yesterday at Sherman’s hearing, we heard nothing of the felony burglary domestic violence allegation that accompanied his original booking. Prosecutors asked a Judge to find probable cause to charge Sherman with a series of misdemeanors and gross misdemeanors including criminal trespass, malicious mischief (for alleged damage to a door), resisting arrest (he was taken down by cops when prosecutors said he “stiffened and flexed” his muscles and was then subdued by a K-9) and driving while under the influence. So, why no burglary charge?
Here’s why. In Washington, burglary is a specific intent crime. It requires unlawfully entering or remaining in a residence with “intent to commit a crime against a person or property therein.” Number one, did Sherman actually enter? Police say he was found outside, trying to get in but no facts indicate he actually got inside. Even if he did, it would be hard to prove without his wife and her father’s cooperation. Right there you have a problem. Without entry, this would be attempted burglary, not burglary. Next, did he intend to commit a crime against someone inside? Well, his wife said on the 911 call that he was allegedly making suicidal threats, and the man on the second 911 call said to the operator that at some point Sherman had allegedly threatened his wife. But, what about all of that alcohol? Sherman was allegedly intoxicated off of two bottles of hard liquor. While voluntary intoxication is usually not a legal defense for a general crime, it can provide a partial or at least mitigating defense in a specific intent crime. If Sherman was intoxicated, how could he form the requisite intent to commit a crime against someone inside the residence? It would be very hard to prove that malicious and specific intent was formed by someone who was allegedly so heavily influenced by so much alcohol and biologically probably not able to even think straight, let alone meet the legal standards to form intent for a felony.
Prosecutors recognized they would have a difficult time proving burglary. This is why when people are arrested, police must hand over all of their evidence to the district attorney. The D.A. then looks at what the law requires to prove the crime and sees if the facts match up before deciding whether to formally charge. In this case, criminal trespass, a misdemeanor, was a more appropriate charge. Also, Sherman has no criminal history and his wife likely advocated on his behalf to help him avoid any other felony charges. Since Sherman has no criminal record, the Judge decided to release him without bail on the condition that he return to his next hearing, refrain from using drugs or alcohol, agree to a ban on firearms (which he did), and stay away from his father-in-law (a no contact order). Sherman’s wife declined a no contact order, which was offered to her as well.
Sherman’s attorney told the Judge that Sherman is taking this very seriously and realizes his professional career hangs in the balance. He also said Sherman is committed to following all of the rules of the court. It sounds like Sherman will be striking a plea deal on the series of misdemeanors and will likely serve probation, be assigned community service, and hopefully get mental health services or enter treatment programs if the court decides that he needs it. The state attorney did tell the Judge that the state believed that Sherman remained a potential risk to himself and others, including the community at large. Based on the reports so far from police and the 911 calls, including allegations of driving drunk, allegedly cutting off his wife in her car, allegedly crashing a car into a construction site, and the alleged suicidal threats and scuffles with cops, it is a miracle no one was hurt or killed, including innocent people on the road. The arrest just may have saved Sherman’s life and the lives of others. But these incidents are not solved overnight and should be viewed as red flags. It would behoove the NFL to also step in proactively and see if it can help Sherman get any services and evaluations he may need as well. All can agree, that for Sherman, who runs an active charity foundation and is the Vice President of the NFLPA’s executive committee, this incident is alarmingly out of character.
Disclaimer: "This is an editorial and contains the author's opinions and subjective legal takes. Anyone accused of any crime is innocent until proven guilty in a court of law. Allegations are merely that: allegations. This editorial does not offer any legal advice and is meant to be educational only."