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Vick's Woes

Failed drug test, Va. indictment lead to new questions

Posted: Wednesday September 26, 2007 12:19PM; Updated: Thursday September 27, 2007 11:37AM
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How does the failed drug test affect Vick's case?

Michael Vick's legal troubles just got bigger as a grand jury in Virgina brought two felony charges against him.
Michael Vick's legal troubles just got bigger as a grand jury in Virgina brought two felony charges against him.

Michael Vick's pretrial release in the federal case stipulated that he "refrain from use or unlawful possession of a narcotic drug or other controlled substance," as well as comply with other behavioral restraints. As a result, while Vick has remained free during his pretrial release, he has been free with significant strings attached.

Unfortunately for Vick, he has now severed one of those strings, which has prompted U.S. District Judge Henry Hudson to impose additional conditions on Vick's release, including confinement to his home and wearing an electronic monitoring device. Should Vick violate another condition, Hudson could incarcerate him or impose additional restrictions.

It is unclear, however, whether this drug violation will expressly or implicitly factor into Judge Hudson's forthcoming sentence of Vick on Dec. 10. On one hand, Vick's violation of an express condition of his release may suggest a continued failure to adhere to rules. Furthermore, Judge Hudson may be justifiably aggravated by Vick apparently believing that he could break a rule imposed by the legal system and either not get caught or not suffer serious consequences. Also, one might question that if Vick is as contrite as he claims to be, why would he not do everything possible to conform to the release's conditions?

On the other hand, Vick could contest the test's results or perhaps provide a mitigating explanation. In addition, Judge Hudson may not consider Vick's use of marijuana relevant to a prison sentence for dogfighting conspiracy charges.

The NFL will also evaluate whether Vick's failed drug test violates the league's drug policy. As we know from Ricky Williams's troubles with the drug, marijuana is prohibited by the NFL's drug policy. The precise manner in which Vick was tested, however, may or may not be compatible with the policy's rules and regulations.

Regardless, when compared to Vick's other, more serious legal problems (e.g., an upcoming stay at a federal penitentiary; new state criminal charges filed against him), a failed drug test may not prove very consequential in NFL commissioner Roger Goodell's mind as he calibrates what will likely be a very long suspension of Vick from the NFL.

What happened in state court on Tuesday?

A grand jury in Surry County, Va., brought two felony charges against Vick: one count of unlawfully torturing and killing dogs and one of promoting dogfights. Each charge carries a possible five-year prison term, although Vick, should he be convicted as a first-time offender, would likely receive a much lighter sentence. Surry County Commonwealth Attorney Gerald D. Poindexter and his staff will now try to prove Vick's guilt, while Vick's legal team, led by Billy Martin, will try to raise reasonable doubt. Vick will be arraigned on Oct. 3.

What is the legal significance the grand jury's indictment?

The grand jury has identified "probable cause" relating to two of 10 charges brought to them by Poindexter. By identifying "probable cause," the grand jury believes that Vick more likely than not committed the crimes of unlawfully torturing and killing dogs and promoting dogfights, and that Vick should stand trial for those charges. In declining to indict Vick of the eight other charges, which pertained to animal cruelty, the grand jury implicitly signals that it did not identify probable cause for those charges. Alternatively, the grand jury may have declined to indict Vick of those other charges because they were aware, and disagreed with, the more heavy prison sentences associated with them.

An indictment, however, is far from a criminal conviction. Grand jury hearings are typically secret and feature rules that tilt the proceedings in the government's favor. Moreover, the standard of "probable cause" proves much more obtainable for the government than the taxing "beyond a reasonable doubt" standard required for conviction.

That said, Vick has already plead guilty to federal charges that confirm his involvement in a dogfighting ring on his property. Indeed, through his sworn statements in the federal proceedings, he may have already admitted to the necessary elements of the state charges.

Of potential benefit to Vick, however, Poindexter previously indicated some ambivalence towards the federal government's charging of Vick. How aggressively he now pursues Vick on very similar state charges remains to be seen.

Why are there now state charges against Vick when the federal case against him seems largely resolved?

In many instances, a defendant's alleged behavior can violate both federal laws and state laws. Although the federal and state charges against Vick pertain to similar and, in some ways, identical underlying behavior -- particularly the financing and promoting of dog fights -- one might characterize the state charge of "unlawfully torturing and killing dogs" as more specifically addressing the most sordid facts at hand: the alleged electrocution, drowning, and other torture and murder of the animals.

In addition, under the doctrine of dual sovereignty, federal and state governments, which utilize separate sets of criminal laws that presumably reflect separate sets of values (i.e., a federal law reflects the values of Americans; a state law does so of one state's citizenry), may proceed in successive prosecutions of a defendant based upon the same alleged conduct.

As a result, the federal government's prosecution of Vick does not preclude Virginia from bringing its own set of charges. Therefore potential concerns about "double jeopardy," which, pursuant to the Fifth Amendment to the U.S. Constitution, bars repeated prosecutions for the same specific offense, do not apply.

Then again, and as Martin mentioned in a statement Tuesday afternoon, Vick may question the fairness of the state charges and regard them as at least partly duplicative of the federal charges: "We are disappointed that these charges were filed in Surry County, since it is the same conduct covered by the federal indictment for which Mr. Vick has already accepted full responsibility and pleaded guilty to in U.S. District Court in Richmond, Virginia."

After Vick is arraigned on state charges on Oct. 3, what will happen?

Foremost, Vick and his attorneys will continue to prepare for a state trial, tentatively scheduled for Nov. 27.

But there is a very good chance we never see that trial. Much like they did with federal prosecutors, Vick's attorneys could reach a plea agreement with county prosecutors. A plausible agreement could entail the following: in exchange for a period of incarceration that, with a judge's approval, runs concurrent with his federal prison sentence (and thus also served in a federal penitentiary), Vick pleads guilty to the state charges.

The upside for Vick in that scenario would be a final resolution of criminal charges against him and, more important, certainty that his prison sentence would not be elongated. For the county, it would end the case with a guilty plea, a desirable outcome for prosecutors. It would also save thousands of tax dollars that would have been spent by the government in trying the case.

The downside for Vick would be admitting to new criminal charges and giving Goodell further reason to not let him back into the league.

If convicted of state charges, will Vick face a longer prison sentence?

Possibly, as the judge sentencing Vick for the state crimes could command that the state sentence run after the completion of Vick's federal sentence (so that sentences run "consecutively").

But I believe that a consecutive sentence would be unlikely. Vick would be a first-time offender of these particular Virginia laws, and sentences for first-time offenders not only tend to be lighter than for repeated offenders, they are also more likely to run concurrent with a federal sentence, should there be one. Considering that Vick will likely be spending at least a year in a federal prison pursuant to Judge Hudson's forthcoming sentence on Dec. 10, a concurrent, rather than consecutive, state sentence would seem likely.

Moreover, some have asserted that Vick has been selectively prosecuted for crimes that are usually ignored by the police and prosecutors. To the extent those commentaries are true, a concurrent sentence would prove even more appropriate.

Michael McCann is a law professor at Mississippi College School of Law. He specializes in sports law. McCann can be reached at mmccann@mc.edu.