Commentary

State dogfighting charges present a fresh round of challenges for Vick

Updated: September 26, 2007, 12:37 AM ET
By Lester Munson | ESPN.com

The Surry County (Va.) prosecutor indicted Michael Vick on dogfighting charges Tuesday that Vick already has admitted in federal court in Richmond, Va. The action by Surry County District Attorney Gerald Poindexter raises a host of questions. Here are some of the questions and the answers:

Vick already admitted he was involved in dogfighting for six years in five states. How can the local prosecutor in Surry County charge him again?

Ordinarily, the local authorities defer to federal authorities. Instead of duplicating efforts, the local police and prosecutors agree to permit federal agents to complete the investigation and pursue the prosecution. It is a matter of allocation of the limited resources available to law enforcement. Most law enforcement people agree to cooperate and to focus their efforts on a single prosecution. That did not happen in the Vick dogfighting investigation. Agents of the U.S. Department of Agriculture raided the Vick kennel compound when they believed Poindexter was hesitating and delaying his investigation. They worked quickly and effectively, forcing Vick to plead guilty less than three months after the dogfighting scheme was discovered.

How can Vick be prosecuted twice for the same crime? Isn't it double jeopardy, and isn't that barred by the U.S. Constitution?

The legal phrase "double jeopardy" is shorthand for the rule that a citizen can be prosecuted only once for the same crime. But the idea of "dual sovereignty" might trump the idea of "double jeopardy." In a case known as Heath v. Alabama, the U.S. Supreme Court ruled in 1985 that a man who hired two thugs to kidnap and murder his wife could be prosecuted twice, once in Georgia and once in Alabama. It's a case that has prompted argument among legal scholars, but it is a basis for Poindexter to file a second set of charges against Vick. The theory espoused by then-Justice Sandra Day O'Connor, who delivered the majority opinion, was that if two states had distinct sources of their power from their own constitutions, each state could prosecute its own case. It's a scary legal precedent for Vick. His lawyers will try to stop Poindexter from pursuing Vick. They will argue "double jeopardy," but they will run up against the ruling of the nation's highest court. And Vick, like the guy in the Supreme Court case, could end up with two convictions and two jail sentences.

In the federal court in Richmond, Vick admitted in his guilty plea that he was involved in dogfighting in North Carolina and South Carolina. Can he be prosecuted in those states, as well?

It is possible, but unlikely. 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.

Why is Poindexter pursuing Vick in a second 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.

What should Vick do?

The first thing Vick should do is gather his five lawyers together and ask them some hard questions. In most situations in which both local and federal prosecutions are possible, the negotiations for a guilty plea include a promise from the local authorities that they will not prosecute. It is an obvious element of the lawyer's work as the lawyer seeks the best bargain for his client. In their rush to conclude the federal cases before additional charges were filed against Vick, did Vick's lawyers talk with Poindexter? Did they explain to Vick that a second set of charges was possible? Vick's next meeting with his lawyers might be difficult for the lawyers.

Vick admitted to serious crimes in his guilty plea in federal court. Can Poindexter use those admissions against Vick?

Vick signed a 10-page "summary of facts" that admitted dogfighting, gambling and the executions of nonperforming dogs. He swore that each of the allegations was true as he signed it. Poindexter certainly will try to use it against Vick. But 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.

Lester Munson, a Chicago lawyer and journalist who has been reporting on investigative and legal issues in the sports industry for 18 years, is a senior writer for ESPN.com.