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In Defense of Michael Vick

By Jeffrey Standen

Before you throw down your mouse and storm off the internet in anger, hear me out on this one. I?m not going to make any technical legal arguments about search and seizure law: that?s for lawyers getting paid by the hour. Instead I?m going to try to address Vick?s alleged conduct on a more moral plane, considering the practice or ?sport? of dogfighting in a slightly broader context. I?m probably going to fail, as this whole activity is pretty gruesome. Still, deep down I believe the instant hatred directed toward Vick is a little undeserved and overdone.

Click on the jump to consider a few thoughts.

1. I used to litigate in the Eastern District of Virginia, which, as everyone now knows, the local lawyers have long called the "Rocket Docket." The nickname is well-deserved. Michael's lawyers, here's some advice. Double knot your wing tips and cinch up your neckties: when the judge schedules a major pre-trial conference for a date three weeks' hence, the conference will happen in three weeks. Don't bother telling the judge about your vacation plans, Vick's training camp, or the needs of your other clients. Just draw a line through your daughter's birthday party and fill in your hearing. And I might add: the judges in this district as a rule are strict, by the book, and do not much abide pleas for leniency. And this: God help Michael Vick if the Commonwealth of Virginia brings state charges. Virginia sentencing law does not view felons charitably. And more: ask for a jury trial. Despite the reputation of the judges, Virginia juries (especially in Richmond) tend to be pro-plaintiff on the civil side and pro-defendant on the criminal side. Finally: ask the Falcons to trade Vick immediately to the Redskins, the much beloved "local" Richmond team. You need all the help you can on something like this.

2. Let me make this clear at the outset. I love dogs (have owned several, and just got a new one two weeks ago), never strike them or hurt them, and couldn't for a minute stand the sight of one dog ripping into another, especially at the instigation of the dog's master, whom the dog is bred to trust and whom most dogs want nothing more than to please. I would never for an instant allow my dog to be hurt in any way. Dog fighting is deeply wrong and not to be countenanced.

3. So how can I defend Vick? Start here. Vick maintained, when the news erupted, that he was personally unaware of the dogfighting at his house. This claim has been ridiculed in the press and apparently now contradicted by certain witnesses. Is it ridiculous? Many star athletes and celebrities own several homes, largely for investment, but also, especially in the case of athletes from impoverished backgrounds, to provide housing for relatives. It is in fact possible (although not probable) that Vick seldom actually stepped foot in the house, despite his nominal ownership. What if we find out he actually did not know? Let's go slowly here.

4. What about the witnesses? They were bribed. Not by cash money, of course, but by the promise of non-prosecution or prosecutorial leniency that they were or will be given in exchange for their incriminating testimony. Is that a bribe? No, not in the legal sense. But a prosecutor's promise (enforceable in court) functions like a bribe. Clearly the prosecutors are seeking to convict Vick on this case because convicting a famous public figure maximizes law enforcement, sending a message to the rest of us that a successful prosecution of some unknown person would not replicate. So to a person implicated in the dog fighting, the threat of prosecution paired with the promise of leniency in exchange for implicating Vick functions as a substantial inducement to fabricate. And if you don't think fabricated evidence poses a problem in criminal prosecutions, go read some of the research discussing the quality of evidence of "jailhouse informants," who will say just about anything to lessen their exposure to further criminal sanctions and whose imaginative stories have led some judges to refuse to allow them to testify at all. Now, to be clear, I'm not saying the witnesses in the Vick case are lying or that the prosecutors misbehaved, not at all. But I am pointing out that witnesses in these matters have obvious motivations to lie. Prosecutors, when they offer such leniency, are to an extent buying a "pig in a poke" (Virginia saying), not entirely sure what testimony they're getting for their offer. If the testimony proves to be a lie, the offer will be retracted. But still, the testimony promised (and leaked to the press) may not be the actual testimony that is given under the threat of perjury in a court of law. Again, let's see how these witnesses hold up over time before we believe them.

5. What about the charges? How bad is dog fighting? It's bad, in my view. But my stomach would be equally turned by cock-fighting, bull-fighting, and many of the other blood sports that are not uncommon, still, in the contemporary world. Michael Vick witnessed a dog fight. Has Pau Gasol (from Spain) witnessed a bull fight, where the large, sentient creature is slowly and cruelly (at least it looks cruel to me) put to death through a succession of pricks, stabs and other wounds? Cocks may not be as sentient and intelligent as dogs, but still I couldn't watch them fight, pecking each other to a bloody pulp. Yet people, both men and women, do enjoy such fights, and I assume the rest of us treat these people with normal respect and politeness. I see glimpses of Ultimate Fighting on television, and even though no one's fighting to the death in that ring, I have seen men fall and their opponents jump on top of them, pounding them in the head unto submission. Again, I don't have a taste for such blood sports. But some people do. Should we deny them that taste? Yes, emphatically. But by the same token, when they act on that taste and attend a dog-, cock-, bull-, or ultimate-fight, I think the rest of us have to understand that a taste for blood sports is a somewhat normal and (in some places) culturally accepted means of enjoyment.

6. Why were the dogs killed? The indictment contends that dogs at the Vick house were killed by strangulation, shooting, drowning, and the like. What could possibly justify such barbarity? Perhaps charity and humaneness? As I've written before, on occasion I take my boys bird hunting. Now my boys are excellent shots, seldom missing the birds that flush into their zone of fire (those young eyes are nice). For TSLP, with poor vision, well, I do practice but I'll confess I miss sometimes. It's not good to miss (which is why I never attempt difficult shots and always remind my boys to be ready to fire in case I do miss). Missing can wound the bird instead of kill it. I have wounded birds and like any ethical hunter it becomes my duty to track that wounded bird down and finish the job as quickly and humanely as possible. Tired and hungry, my boys and I have crossed much rugged terrain in chasing down my wounded prey. When we find the bird, we don't just shoot it on the ground (sluicing). Sluicing is reckless and dangerous, as you never know how a BB from your shotgun might richochet; plus you never know what else is hiding in that bush. No, what you have to do is grab that poor wounded bird and twist his neck so he dies. I don't like killing birds that way, but it's the only humane thing to do in the circumstances. Now, I have no idea why people were strangling dogs at the Vick property. Maybe it was just malignant, and if that's the case, it's despicable. But we might learn that these particular dogs were injured from fights to such an extent that the humane thing to do was to put the dog down, and strangulation or shooting was the quickest and most painless way to end the dog's life. I don't know why these killings happened (and neither do you), but my point is that there might be non-malign explanations. Let's not jump to conclusions.

7. Talk of ending Vick's career or punishing him at this point seem absurdly premature. The criminal trial, if it goes that far, may bring many facts to light that could change the tenor of public opinion and affect the seriousness of Vick's conduct. Kobe Bryant, now returned to icon status, was tried for forcible rape of a human being. Michael Vick has been charged with less.

Full post as published by The Sports Law Professor on July 23, 2007 (boomark / email).