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August 22, 2007
Mid-week forum: is it fair for Vick also to face state criminal charges?
This AP article details that local prosecutors in Virginia are talking about bringing state criminal charges against Michael Vick. Here are some of the particulars:
Michael Vick now must wait and worry. Already looking at a possible five years in prison on federal dogfighting charges, the Atlanta Falcons quarterback also could be facing prosecution in Virginia.... Local prosecutor Gerald Poindexter has said he likely will pursue charges against Vick, who has plummeted from favorite son to a symbol of animal abuse in the four months since authorities raided his Surry County property.... Among the state laws Vick could be charged with violating are those against dogfighting and animal cruelty. Both are felonies punishable by up to five years in prison.
I believe that, under traditional dual sovereignty doctrines, there are no federal Double Jeopardy limits on a state prosecutor trying to take a second criminal bite at Vick. However, it strikes me that, at some point, Vick has a right to complain about piling on: in addition to his federal conviction and sentence, Vick will also likely be significantly sanctioned by the NFL and maybe also by the Atlanta Falcons.
My sense is that, at the very least, local prosecutors ought to see what punishment Vick ultimately receives elsewhere before starting to make significant public statements about a possible state prosecution. (Also, I wonder if the local prosecutor has said already whether he will also go after Vick's co-defendants.)
Here's an interesting sentencing twist on all this: can and should the federal sentencing judge consider giving Vick a sightly lower sentence if he knows Vick will be subject to a duplicative state prosecution? Of course, this could create a kind of criminal justice Mobius strip: a federal judge could potentially reduce a sentence based on an expected subsequent state prosecution, and then a state prosecutor could decide to go forward with a subsequent prosecution because the feds imposed a sentence that seemed too lenient.
August 22, 2007 at 08:53 AM | Permalink
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If, in fact, the threat of state prosecution is real and highly likely, Vick's attorneys might consider reaching parallel plea deals with both jurisdictions conditioned on any jail time running concurrently and in a federal facility. Such an approach would resolve criminal cases in both jurisdictions and not expose Vick to jail time longer than he faces for the federal charges (for which he has already reportedly agreed to plead guilty).
Posted by: Harlan Protass | Aug 22, 2007 9:29:04 AM
#1 - Gerald Poindexter, the Surry County Commonwealth's Attorney, seems to be upset that he got upstaged by the Feds on this one. He was dragging his feet on indicting Vick after the first search of the property, and so the US Attys office got involved. Now he's blustering about filing his own charges. Sad.
#2 - Virginia sentences (and probably most other sentences) are usually extremely lenient for first-time offenders, which apparently is the label that applies to Vick. It seems that most state-court judges in Virginia will hand out long sentences but then suspend all of the time or all but a few months, conditioned on good behavior.
#3 - Even if Vick does get a sizable sentence in state court, the time will almost certainly be run concurrently with his federal time, as the crimes are almost exactly the same. That's why this is kind of silly, and looks for the world like Poindexter is grandstanding.
Posted by: Steve | Aug 22, 2007 9:49:21 AM
Dual prosecutions happen all the time, especially in gun cases. It's interesting (read: disappointing, but predictable) that it took a Michael Vick for anyone outside the system to notice. The mandatory federal sentencing guidelines would have required that the federal sentence run concurrent with the state sentence if the state sentence was imposed prior to the federal sentence and the criminal conduct underlying the state sentence was "fully taken into account" in the calculation of the federal sentencing guidelines. There was a circuit split on whether a federal judge could run a federal sentence concurrent with a not-yet-imposed state sentence. In some circuits, judges simply could not do it. Since Booker, however, federal judges have been routinely ignoring the guideline provision (5G1.3) dealing with concurrent/consecutive sentences and have been running federal sentences consecutively with state sentences (which they can do just by remaining silent on the issue; if the judge doesn't specifically order concurrent sentences, the federal sentence will automatically run consecutively) even when 5G1.3 dictates that they run concurrently. Vick's best bet is to get the state judge to run the state sentence concurrent with the federal one.
Posted by: Fedef | Aug 22, 2007 9:55:59 AM
Just for the sake of efficiency, the state prosecutors should let this go.
Posted by: | Aug 22, 2007 10:00:14 AM
Of course it's not fair that he face charges in both jurisdictions but the unfairness is that he is facing federal charges, not that he might also face state charges.
Remember this started out as a state investigation (Vick's cousin was arrested for Marijuana and listed Vick's property as his address and the state searched the home and found the dogs and dog-fighting paraphernalia) before the feds stepped in and took it over. This should have been a state matter from the beginning and the feds should have stayed out of it.
As I understand it, the federal "Animal fighting venture prohibition" statute is a misdemeanor. (see § 2156
The federal felony that he was charged with was a conspiracy to commit a state felony. Both animal fighting and gambling are felonies in Virginia. In other words, the underlying felony offense is itself a state crime, not a federal crime. But, of course, federal conpsiracy laws make it possible to convert almost any state offense into a federal offense with harsher penalties and easier burden of proof.
For a complete analysis see http://www.animalblawg.com/wordpress/?p=116
I am sure Vick's head must be spinning. While he had to know he was violating state laws, I don't think there is anyway that someone involved with a small private dog-fighting operation could have ever anticipated being prosecuted federally in this way. Has anyone ever been charged like this before? I would be surprised.
While I don't doubt that Poindexter is a grandstander, I might be a little upset also if the feds came in and intervened in what is, in reality, a local matter. Had it not been Michael Vick, does anyone really believe the feds would have bothered? THAT is what bothers me about this case. Michael Vick is being made the poster child for a national campaign to end dog-fighting. It is purely a coincidence that this occured at the same time that a new federal law was signed strengthening federal penalties against dog fighting
Posted by: Dr Bill | Aug 22, 2007 10:08:46 AM
I am sure Vick's head must be spinning. While he had to know he was violating state laws, I don't think there is anyway that someone involved with a small private dog-fighting operation could have ever anticipated being prosecuted federally in this way.
This is silly. The more organized, businesslike, and "interstate" your crime becomes, the more it starts to look like something that would interest the feds. If you believe what's in the indictment, Vick shouldn't have been surprised by federal charges.
Posted by: | Aug 22, 2007 11:05:35 AM
It is also interesting that this is one area where no criminal law affords defendants more protection than criminal law. Civil defendants can invoke res judicata (and even the incomplete defense of collateral estoppel) when a matter resolved in a federal proceeding is raised in a state one, or visa versa.
Vicks case, moreover, while a blatant one, is hardly the worst possible scenario. The general rule of criminal jurisdiction is that you can be prosecuted both in the state where the act took place, and in the state where the victim was harmed (the man who kills someone with a shot fired over the state line is the typically law school example, both states have jurisdiction).
In the heartland of federal interstate criminal litigation, which is white collar crime, often there will be victims in every single state, potentially provoking 51+ separate criminal prosecutions for a single overt act (e.g. sending a fraudulent e-mail to a group of people on a mailing list).
Comity has largely prevented this from happening, but securities fraud and mortgage fraud cases have show just how dastardly complex such cases can be, and when the defendants are a small number of small time individuals (perhaps guilty only of misdemeanors) rather than a major national corporation, the potential for repetitive prosecutions and grossly disproportionate punishments are huge.
Posted by: ohwilleke | Aug 22, 2007 11:23:45 AM
Does anyone know if Virginia has a state double jeopardy statute, which would preclude prosecution?
Posted by: federalist | Aug 22, 2007 11:28:12 AM
The man vicsiously, savagely and insidiously slayed innocent animals he deemed unworthy. His conduct is filth 101. I hope he gets the ultimate punishment, and never plays another down of professional football.
Posted by: rls | Aug 22, 2007 12:02:18 PM
As a former resident of Surry County, I have the utmost respect for Poindexter. One person's foot-dragging is another's thoroughness.
He had alot to deal with for a position that is both part-time and elected -- local outcry (going both ways), national interest (rare in this county of 6000 or so), a bad warrant, and the feds showing up unannounced. What else could he do?
He's been called racist (read: taking Vick's side), Nifongesque, and the like. Now that he has announced that he will seek an indictment next month, he's "grandstanding?"
Posted by: Anne | Aug 22, 2007 12:04:50 PM
We are all over Vick and how awful his acts are. Why don't I just take a rope and tie it ever so tightly around the testicles of a male cow (a bull) and call it a sport, let's say 'bull riding'. Is that a crime or is that animal abuse?
Well, is it? Because if it is, then we need to look at that too 'IF' animal cruelty is the real issue. This issue, no this country, is so divided along racial lines it just isn't odd any more.
Joe
Posted by: Joseph | Aug 22, 2007 12:06:51 PM
Well, is it? Because if it is, then we need to look at that too 'IF' animal cruelty is the real issue. This issue, no this country, is so divided along racial lines it just isn't odd any more.
Right. Our country is divided along racial lines because we treat dogs better than bulls. I was at the kennel the other day, and there was a sign that said "no bulls." I cried, but no one cared.
Posted by: | Aug 22, 2007 12:21:05 PM
is it fair for Vick also to face state criminal charges?
Fair? We have blood sucking prosecutors looking another notch on their belt and a possible bump upstairs, under the guise of "doing their sworn duty". Fair doesn't play into this at all. Granted, the guy's a dirtbag of the highest order, but still no worse than these prosecutors who will charge their grandmother if it means a front page story with their name in bold type.
Posted by: BabbaLu | Aug 22, 2007 12:54:16 PM
Nice going, BabbaLu. The only reason prosecutors exist is to get headlines. What a well reasoned and carefully thought-out position.
We look forward to additional intellectually stimulation observations from you.
Posted by: Steve | Aug 22, 2007 1:30:34 PM
And the only reason defense lawyers exist is to get clients off with emotional arguments.
(Sure, both arguments are crazy, but both are made with straight faces by otherwise sane people advocating various positions.)
Posted by: S.cotus | Aug 22, 2007 2:16:14 PM
Simplest way to test the influence of race in the prosecution of Michael Vick: ask yourself, if it were Brett Favre / Peyton Manning / Tom Brady, would they be in the same hot water?
The answer is, unequivocally, yes. And rightfully so.
If anything, this is about FAME, not race.
Posted by: Tony | Aug 22, 2007 3:43:49 PM
"Brett Favre / Peyton Manning / Tom Brady"
Who are these guys?
Posted by: S.cotus | Aug 22, 2007 3:53:13 PM
Manning and Brady, yes.
Favre, no. The media is pathologically weird about Favre. The commentary would go something like this:
That's just the old gunslinger showing another side of himself that's been hidden from view all this time. Throughout his stellar 16-season NFL career, he's provided us with countless memorable moments, and America has gotten to know him personally as we watched him deal with the death of his father, his wife's breast cancer, and Hurricane Katrina blowing through his home state. We've known about his struggle with painkiller addiction in the 90's as he fought to keep his battered body in top playing shape, and we watched him endure speculation about his possible impending retirement as his career draws to a close. Just when you thought you knew everything there is to know about Brett Favre, he calls an audible late in his career and reveals that he's involved with the controversial sport of dogfighting.
Well, we all have our guilty pleasures, and it shouldn't surprise us that a competitor like Brett even relishes competition among members of a different species. We tip our hat to him and wish him good luck as he endures yet another struggle in his star-crossed life, not with death, hurricanes, diseases, the media, or blitzing defenses, but with the legal system. It may be his toughest battle yet, but if anyone can emerge victorious, it's 3-time MVP Brett Lorenzo Favre.
If it was Brady or Manning, they'd be treated much like Vick has.
Posted by: | Aug 22, 2007 3:53:50 PM
While BabbaLu did not word his/her post diplomatically (respectfully) as lawyers are wont to do for good reason, that does not make the essence of it invalid. Indeed, federalist can use the same tone and because he applies it to criminals, it is fine. That is how the Right was able to shift the debate from due process to individual crimes and criminals.
Do prosecutors let themselves be swayed by politics, or by policy are they required to shift focus depending on the crime du jour or other politics?
What is the politics in a D.A.'s office? My guess would be...
1. arrested, strike one
2. made the local paper? strike two
3. made national news? strike three
4. crime du jour? strike four
5. election year? strike five
Celebrities getting off, OJ, are not the norm, of course.
The News Media's Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness
Posted by: George | Aug 22, 2007 5:33:25 PM
This is silly. The more organized, businesslike, and "interstate" your crime becomes, the more it starts to look like something that would interest the feds. If you believe what's in the indictment, Vick shouldn't have been surprised by federal charges.
Are you kidding? I reread the indictment. Almost everything took place in Vick's backyard... you can't get more local than that. 4 dogs were purchased from North Carolina (which is only a few miles from Surry County) and 1 from New York. On about 6 occasions, Vick and friends took a dog to SC, NC or NJ for a fight. 66 dogs were found on his property and presumably he owned a lot more over the years. Doesn't look like much of an interstate operation to me. It looks like virtually all the dogs were bought and fought right at home in Virginia.
This is as far away from "organized, businesslike, and interstate" as conduct can be. This is a handful of private individuals staging private fights mostly in their backyards.
I am not arguing the conduct is not and should not be illegal, only that this is clearly more a local matter than national one. The only reason I believe the feds got involved is because it is Michael Vick and they are engaged in a national campaign to eradicate dog fighting and they found their poster boy in Vick. I can't argue with the effectiveness of their strategy as a political matter. It has been quite devastating. I just hate to see someone specifically singled out for their celebrity status.
Also, by the way, almost all of the conduct (80 of the 84 paragraphs) was over 4 years ago -- I am surprised the codefendants had such good memories that they even remembered dogs names and states! I also find it odd, and suspicious, that Vick is not identified with participating in any acts of violence against dogs until this last April... paragraph 83 at the very end. That is why I am very curious to see what conduct he admits to. His guilty plea does not require him to admit to hurting any dogs and yet that seems to be the conduct that people are most disturbed about.
Posted by: Dr Bill | Aug 22, 2007 6:15:33 PM
Are you kidding? I reread the indictment. Almost everything took place in Vick's backyard... you can't get more local than that. 4 dogs were purchased from North Carolina (which is only a few miles from Surry County) and 1 from New York. On about 6 occasions, Vick and friends took a dog to SC, NC or NJ for a fight. 66 dogs were found on his property and presumably he owned a lot more over the years. Doesn't look like much of an interstate operation to me. It looks like virtually all the dogs were bought and fought right at home in Virginia.
This is as far away from "organized, businesslike, and interstate" as conduct can be. This is a handful of private individuals staging private fights mostly in their backyards.
I am not arguing the conduct is not and should not be illegal, only that this is clearly more a local matter than national one.
This is the most interesting question in the controversy, to my mind. The general impression I get from the media is that dogfighting an interstate network thing. To get these dogs, to learn how to train them, to find opponents, and to get paying and betting audiences, Vick and his friends would have to have been plugged into a larger network. Moreover, the "handful of private individuals staging private fights mostly in their backyards" seems hard to square with the idea that the entire house and surrounding property existed for the sole purpose of housing a dogfighting operation.
In some neighborhoods, some people probably set up fights between their pets and bet on the results. Here, it looks like Vick's operation was much more sophisticated than that. This could be media hysteria, or it could be my poor reading comprehension, but I'm having trouble understanding the view that this was a fairly local matter.
Posted by: | Aug 23, 2007 12:57:06 AM
Okay, this is me thinking cynically.
1. I have some reservations about using federal law to prosecute dog-fighters. However, I realize that “interstate commerce” has been extended quite widely, and there is nothing illegal about prosecuting this guy. The indictment alleges quite a network which was both interstate and commercial.
2. The fact that the state was ready to make the first move (but perhaps was more deliberate) is somewhat curious.
3. Perhaps the choice of this defendant was a cynical ploy to curry political favor, and show that the DOJ is good at more than just firing US Attorneys and bugging our phones. Americans love their animals, and unless you are an animal-hating reactionary, dogs and cats are considered pretty much sacred in the US. The selection of a high-profile defendant in a case that everyone can understand (rather than the amorphous “false statement” prosecutions, securities fraud, or even drug cases) definitely will strike a cord with many voters. So, was Vick singled out for political reasons? I don't know. But, I think the possibility is out there.
(By the way, since I like animals, I don't think he should ever get out of jail.)
Posted by: S.cotus | Aug 23, 2007 7:44:36 AM
C'mon Dr. Bill. All it takes to get federal jurisdiction is for me to pick up the phone and make a call next door or fire off an e-mail down the hall. You know better. If this criminal enterprise that Vick ran and financed was selling drugs or planning a dirty bomb, even if it was "confined to his property," nobody would question if it was federal in nature.
Also, I'm sick of people saying this is just a "cultural" or racial thing. At it's heart it doesn't matter whether he set up a criminal conspiracy to fight dogs or sell dope, it's still a criminal enterprise, and he'll get a slap on the wrist compared to someone who invested the same amount of time and money in an illegal crack operation.
Posted by: Dweedle | Aug 23, 2007 12:37:49 PM
C'mon Dr. Bill. All it takes to get federal jurisdiction is for me to pick up the phone and make a call next door or fire off an e-mail down the hall. You know better
I don't think Dr. Bill's arguing that this is unconstitutional. Rather, that it's something of an outlier relative to what the feds usually do.
The cultural/racial thing is a copout. The best argument I've seen to the contrary is here (it's actually pretty good)
http://sports.espn.go.com/espn/eticket/story?page=vicksatlanta
Posted by: | Aug 23, 2007 2:41:06 PM
First, I don't think I have said anything about culture/race so I will assume you are responding to someone else's comment on that point. I did, however, suggest that celebrity played a role in the feds coopting the case and the incredible laser speed with which they have pursued it (it is amazing that Vick will likely find himself in prison within 8 months of having his property searched). I think as a policy matter, especially after the recent signing of the new Animal Fighting Prohibition Enforcement Act on May 3, 2007, that this gave them an opportunity to put a public face on an issue the feds wanted to push. The timing was very convenient for them. Although Vick cannot be prosecuted under the new law, it wasn't hard to cobble together enough other statutes, including conspiracy to violate a state law, to accomplish the same objective.
Your point that it is very easy to make this a federal crime is essentially the point I was trying to make... it is TOO easy. I am not arguing that the feds, under the constitution (or what remains of it), can't do this, only that there is no longer a line and that any crime, no matter how seemingly local, can be turned into a federal matter with something as simple as a phone call or an email (as you suggest). The initial question posed was whether it is fair for Vick to be prosecuted in state court after being prosecuted federally. My response was that the feds never should have got involved to start with, not because they can't (they obviously can and did), but because as a policy matter the line between state matters and federal matters should have favored the state in this case, especially since they are the one's that discovered everything.
I think I asked at one point whether anyone has every been prosecuted federally for this type of offense. My guess is no. Had this been anyone but Vick, this would have been a state matter?
Posted by: Dr Bill | Aug 23, 2007 8:08:40 PM
So it's a selective prosecution argument? Well isn't that basically true of all federal offenses, even those that are charged far more than any other? In the SD of Texas there are three thousand or more people charged with illegal re-entry every year, but thousands more are simply sent back over the border in buses after technically committing the same offense (in fact, thousands *every week*). The US Atty makes a call on every case that could easily be questioned. In fact, those sent back in buses from Texas would likely be prosecuted in, say, Iowa -- but that's a different story. It seems to me that "selective prosecution" is a fundamental fact of any penal regime and it is hardly unique in Vick's case. Certainly it doesn't strike me as abnormal compared to how other federal offenses are charged.
The timing is not odd. How long do you think a dog fighting investigation that includes three flipped co-d's should last? "I saw #7 bet on the dog, take the money, kill the dog." It's not Enron. And while some jurisdictions have a slow calendar, that also is a function of the region involved. When you have a docket of 6000+ criminal cases per year in your district, a plea within weeks (or days) of information or indictment is not a rarity at all.
Additionally, there are a multitude of offenses that "start out" as state investigations and become federalized. This is especially true in drug cases.
I fail to see the abnormal circumstances you see other than Vick seems to be getting a lot of undeserved sympathy from people who discount the crime of criminal conspiracy. If the conspiracy involved selling that evil crack rock instead of killing dogs for a thrill (and cash) then we wouldn't be having this discussion about whether the state court should handle it.
So, at it's heart, the argument against this prosecution is that running a criminal enterprise that relies on the torture and killing of animals for profit is not as serious as running a criminal enterprise to sell substances that make people forget they live in Virginia. How noble of those seeking a less intrusive federal government to remind me of the proper priorities.
Posted by: Dweedle | Aug 24, 2007 11:46:39 AM
Of course prosecutors have to make calls about which cases will be prosecuted and which will not be. There are limited resources and prosecutors have to engage in some form of legal "triage." Presumably, however, those decisions are made strictly on the merits of the case, not the celebrity of the defendant. Not all critera for selecting prosecutions are equally acceptable. If in fact Vick is the only person to have ever faced this particular set of federal charges, then I would submit that this case is the poster child for selective federal prosecution. How much more selective can you get than that.
As for discounting the crime of criminal conspiracy, well, yes! Conspiracy laws coerce false (or at least exaggerated) testimony from codefenants in exchange for discounted sentences and they invert the punishments of defendants... the least culpable oftentimes get the longer sentences while the most culpable, since they have more "information" to provide prosecutors, get lighter sentences. Defendants with negligible involvement in an enterprise get draconian sentences based on the size of the entire enterprise. Furthermore, conspiracy laws make for lazy prosecutors and investigators who don't actually have to dig up real evidence. They merely have to overindict, or threaten to indict, several codefendants they suspect of wrongdoing and watch them fight over who will flip first and say whatever the prosecutor wants them to say. Then everyone goes to jail based solely on what a bunch of people say about each other without a single piece of substantive evidence against anyone. The feds in this case did almost nothing. The state seized all the evidence. The feds just stepped in, put a lot of pressure on 4 codefendants to get the indictment, 3 more after they were indicted and Vick was screwed. I'm not saying Vick is innocent, just that conspiracy laws suck.
Don't get me started on federal drug laws (and I even get a slight sense that you are actually not that fond of them either). You seem to be suggesting that because no one would argue that drug cases shouldn't be federalized, then surely Vick's case should also be. But of course there are a lot of people who would argue that federal drug laws and prosecutions illustrate the federal criminal justice system at its absolute worst. Surely you agree that the worst horror stories involve drug prosecutions.
So, at it's heart, the argument against this prosecution is that running a criminal enterprise that relies on the torture and killing of animals for profit is not as serious as running a criminal enterprise to sell substances that make people forget they live in Virginia.
I made no such argument. I don't think I said anything about drugs at all. In fact, I could be persuaded that drugs are a less serious offense and also should not be federalized.
I still stand by my suspicion that had this not been Vick, the feds would not have gotten involved.
Posted by: Dr Bill | Aug 24, 2007 5:55:04 PM
Someone wrote that Vick would be considered a "first time offender" under Virginia law - that isn't accurate because the Virginia sentencing guidelines base the prior record on previous sentencing events and thus would count the "previous" federal conviction as a prior conviction. It may not make any difference under the guidelines though because convictions where the max is 5 years only add a couple of points. But two points could be the difference between "probation, no incarceration" and 30 to 60 days incrarceration or worse.
Also, as a search on the Virginia Court information system would show, while he was indicted on one state charge, the prosecutor actually brought 8 separate animal cruelty charges (for the death of 8 dogs), but the other 7 counts were returned by the Grand Jury as a "no bill." Also, the prosecutor only charged with animal cruelty not under the state anti-gambling law which would have been a class 5 felony with a maximum penality of 10 years and also would have been the closest charge to the federal charge. Arguably, since the feds charged with conspiracy to run a gambling operation, the state cruelty to animals charge was a completely different charge - definitely under double jeopardy analysis since it requires proving a separate element than the charge of illegal gambling.
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