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December 1, 2007

Lots of speculation concerning Judge Hudson's playbook for Vick

Yesterday's sentencing of Michael Vick's codefendants (basics here) has, unsuprisingly, lots of folks speculating about what sentence Judge Henry Hudson has in mind for Vick.  Here are links to two particularly effective pieces:

December 1, 2007 at 10:03 AM | Permalink

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I guess the government refused to file a 5K1 motion in this case?

Posted by: Rodney | Dec 1, 2007 10:32:41 AM

Doug,

The Vick case gets a lot of attention because Vick is an NFL player, but its legal significance is slight, in my view.

I suppose I should give full disclosure here. Judge Henry Hudson was US Attorney when I was the appellate chief in his Office in the Eastern District of Virginia. I have not, however, talked to him about this case.

Apparently the guidelines range is 12 to 18 months. I very much doubt there will be any departure, so the prison term will be somewhere in that range. A sixth months difference, top to bottom, is just too small to say that sentence X is more than necessary to achieve the SRA's specified goals of sentencing, while sentence Y would suffice. There are many instances in litigation where the parties are tempted by false precision, and this is one of them.

I have always thought a defendant's efforts at rehabilitation should be rewarded if they were undertaken before he knew the authorities were onto him. If rehabilitative efforts are initiated only after arrest, however, it's a different matter. At that stage, the likelihood is that these steps have come about not because of any genuine change of heart by the arresttee, but because his lawyer (wisely) wants something mitigating to put in the sentencing memo. I'll bet you dollars to doughnut holes that it was defense counsel's paralegal, and not Vick, who phoned around to PETA to shovel Vick into the "be kind to animals" course he took.

There are some mitigating factors here, but probably more aggravating ones. On he mitigation side, this is Vick's first offense -- a factor that should, and does, count. And Vick did report to prison early (although that was almost surely a decision motivated by self-interest: He is doing NFL dead time now, and the sooner he starts serving the sentence, the sooner he will have a shot at resumeing his football career).

On the aggravating side, this was, as Judge Hudson correctly noted in the co-defendants' sentencing, a callous and cruel thing to do. And Vick will have a hard time making himself out to be the Typical Downtrodden Defendant, seeing that he's a millionaire sports star and celebrity.

One thing I'll be interested to see is whether Judge Hudson calls Vick to the podium and asks him whether he did or did not kill one or more of these dogs. The plea language does a lawyer's fancy dance around that question, but as the Sports Illustrated article you linked notes, its answer could have some significance in the sentencing determination.

One way or the other, the legal significance of the case is likely to be minor. And if Vick has problems with the sentence, genuine rehabilitation would counsel him to focus less on the supposed depredations of the government, the judge, the prosecutors, the PD and The Usual List of Bad People, and more on whether it was such a good idea to treat these dogs as he did.

Bill

Posted by: Bill Otis | Dec 1, 2007 11:18:56 AM

Aristotle posited that changes in behaviors change attitudes and not the other way around. If that's the case, then even if the new behaviors are coerced, shouldn't a defendant get some benefit for them?

Posted by: federalist | Dec 3, 2007 5:00:14 PM

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