Tuesday, September 25, 2007
News / Sports Double jeopardy for Michael Vick
Posted by Scott Freeman on Tue, Sep 25, 2007 at 3:54 PM
On a day when fallen boxing champion Mike Tyson pleaded guilty to a cocaine charge and faces four years in prison, the county prosecutor in Surry County announced that he will seek a state indictment against Michael Vick for dogfighting and cruelty to animals.
And if the fallen former Falcons quarterback is convicted of state charges, he would face an additional 40 years in prison.
One presumes that Vick's legal team would fight any state indictments on the grounds of double jeopardy. It is a basic legal right, addressed in the Constitution, that forbids the government from trying Americans twice for the same offense.
In recent years as the U.S. Supreme Court has grown more conservative, it has become more "liberal" in its interpretation of what constitutes double jeopardy. According to our friends at Wikipedia:
Double jeopardy is ... not implicated for separate offenses or in separate jurisdictions arising from the same act. For example, in United States v. Felix (1992), the Supreme Court ruled: "a[n]...offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes."
Which would seem to place Vick in a tenuous situation where he could face serious jail time on top of whatever federal sentence he may receive in December.
It will be argued that Surry County Commonwealth Attorney Gerald G. Poindexter is piling on and using the indictments to save face. Poindexter's office originally pursued the dogfighting allegations against Vick, and was criticized for not being aggressive enough. In fact, the feds swooped in and basically took the case away from Poindexter.
He told the AP last night:
"Most of the matters that I'm presenting have already been admitted in sworn statements authored by the defendants in the federal proceedings," Poindexter said.Poindexter couldn't detail the exact indictments he will pursue, but said the local investigation and the federal investigation largely focused on different crimes.
"The killing of dogs is one of those statutory prohibitions. Dogfighting is a crime, the mistreatment of animals is a crime, so you could take your pick, or take them all," Poindexter said before cutting the conversation short. "I don't have anything else to say about it. I'm through with it. Hopefully it's coming to an end."
For Michael Vick, it appears, the end is not coming anytime soon.
Comments (5)
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This is not a case of double jeopardy. Virginia and the feds are separate sovereigns and so the bar against subsequent prosecutions does not apply. In addition, the elements of the two crimes are not identical because the federal statute requires transport of dogs across state lines or through interstate commerce, which the Virginia statute does not.
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Sara, that is correct. However, I'm sure in Mr. Vick's mind this is a case of "WTF? I thought this was over with!" And, philosophically, I wonder if the founding fathers didn't intend the double jeopardy clause to cover instances like this. Do you have insights on that? My impression is the courts in recent years have made it easier to charge people on the state and federal level with different crimes that arise out of the same incidents.
I think probably the founding fathers were only concerned about preventing real prosecutorial abuses such as trying someone for the crime and then if you don't like the result declaring that trial null and void and trying them again somewhere else. The justification is that basically the prosecution should have to put their best case on for the specific charge, and if they lose then it's game over. But if you have multiple separate and distinct criminal acts resulting in charges, there is nothing that forces to bring all of them in one prosecution. And if you commit a crime in multiple jurisdictions simultaneously (best example would be publication of child pornography on the internet, which is theoretically punishable in all 50 states and federally because it's viewable everywhere) then you take the risk of multiple prosecutions. Same thing with kidnapping or drug crimes. I'm sure Vick is pissed right now but my guess would be it's at his lawyers for not pushing harder to negotiate some sort of deal with Virginia and any other states that may prosecute at the same time that they were negotiating the federal plea deal. He could have several other states' charges coming at him too if he was involved in transporting dogs to fights in other states or if he attended fights in other states. I believe Arizona and Florida have acknowledged open investigations involving Vick.
I'm suspecting that Vick's lawyers did try to work a deal with Poindexter, who didn't want to deal. Lester Munson, the legal expert at ESPN, makes a couple of good points in his analysis of the indictments. First on the question of whether other states might prosecute him: "Under the "dual sovereignty" rule, local authorities could file charges against him. But, unlike Poindexter, most local prosecutors would conclude that they had more important things to do. They would defer to the federal prosecution in Richmond and serve their citizens by focusing their work on local murders, rapes and robberies." Second, on the question of whether the "summary of facts" that Vick plead to in his federal case can be used against him by Poindexter in the state case: "Poindexter will face fierce arguments from Vick's lawyers. They will argue that using the summary of facts in that manner violates numerous rights that are available to people charged with crimes in American courts. And Vick's lawyers might succeed. Although the legal principles that apply to the use of the summary of facts in a second prosecution are a bit muddled, most American judges and lawyers will be appalled that Poindexter has filed a second set of charges. It violates protocols and expectations that have long been part of the American legal culture. The judge who hears the case likely will be looking for a way to stop Poindexter and will reach for any theory that will help. The judge probably will find something somewhere, and Poindexter then will be forced to gather his own witnesses and his own evidence if he persists in his prosecution of Vick." Third, on why Poindexter is pursing this case: "Vick's dogfighting kennel was in operation in Poindexter's county for six years. It must have been embarrassing, if not humiliating, for Poindexter to watch as federal authorities came into his county and quickly pushed Vick into a corner and forced him to plead guilty. It was particularly bad for Poindexter because he is up for re-election on Nov. 6. An indictment now against a celebrity athlete cannot hurt his chances for re-election."
I agree that the dual sovereignty doctrine will likely apply. Here in Florida at least, the doctrine has come under some judicial scrutiny recently for its consequences, as I discuss in more detail on my blog at http://beckandlee.wordpress.com/ Ultimately though, I think Vick's lawyers should bear the brunt of the responsibility for his current fix.
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