Friday, July 20, 2007
Let's not rush to judgment
By Mike Sando
NFL commissioner Roger Goodell could score easy points with an angry public by hitting Michael Vick hard before the quarterback gets his day in court.
He could take the politically expedient route by handing down a one-year suspension or even moving to banish Vick from the game.
And who could blame him? The felony dogfighting charges against Vick are gruesome enough to sicken anyone with a conscience.
But if Goodell can reach a logical compromise -- somehow finding a way for Vick to sit out while his federal court case runs its course -- the league can protect its long-term interests without inappropriately coddling the Atlanta Falcons' star along the way.
Think about it.
If the NFL suspends Vick for the season or otherwise punishes him harshly, only to see him prevail in court, Goodell's push for a harder line on discipline might die an unnecessary death, or at least lose momentum.
Goodell has taken back a measure of control from players after team owners lost ground in their most recent labor agreement. If sustained, those gains could give the league needed bargaining power in its next round of negotiations. Making the wrong call on Vick could jeopardize the league's position.
If the federal indictment is true and Vick's dogfighting enterprise electrocuted wounded animals while breeding others to kill, the quarterback deserves prison time and the unmitigated condemnation that is already coming his way.
Animal-rights activists are organizing protests outside NFL offices, demanding action and threatening boycotts. Their outrage is understandable. Vick bears some responsibility for even putting himself in position to be indicted.
And yet a civil society can't let emotions interfere with due process. No matter how repulsive the charges, no matter how much we love our pets, no matter how bad the indictment makes Vick appear, it's unfair to judge without weighing the evidence.
Several phone conversations with defense attorneys and legal scholars drove home a point easily lost amid the outrage: No one has seen all the evidence. An indictment is all we have, and it's not enough.
"The prosecutor can get an automobile indicted," Maryland-based defense attorney Jonathan L. Katz said. "The prosecutor puts in the witnesses that he wants and then at the end he says, 'Look, here's an indictment, please agree to it.'
"It just requires the grand jury members to find there is probable cause to believe that a crime occurred. Well, probable cause is not much more than a hunch."
Katz and others were generally skeptical of a grand jury process that the American Bar Association considers vulnerable to abuse. They warned against giving too much credence to federal indictments that haven't withstood basic tests such as cross-examination. They noted that federal prosecutors claim conviction rates topping 90 percent in part because so many overmatched defendants avoid trials.
"A grand jury indictment is like the opening drive of a football game," said former federal prosecutor Timothy J. Heaphy, a Virginia defense attorney with experience in high-profile cases. "One side gets to go first and that's the government. The prosecutor can keep the other team off the field and score the first points of the game.
"Is there probable cause to believe these criminal offenses were committed? Usually the grand jury says 'yes' because they've heard only one side. The prosecutor is the gatekeeper of what they hear."
As troubling as the indictment might be, securing one was no surprise once the feds convened a grand jury.
"In point of fact, it's incredibly rare for a grand jury not to issue an indictment," said Charlottesville, Va., attorney Neal Walters, a regular lecturer at the University of Virginia. "It makes good drama on TV, but in that sense, if the U.S. attorney goes to grand jury, it's highly likely they are going to get an indictment."
The process is not particularly thorough or evenhanded. There isn't even a judge, only a rush to judge once prosecutors reveal their side of the story.
"The main thing you should watch out for is convicting the guy based on a grand jury indictment," University of Southern California law professor Charles Whitebread said. "People hear 'grand jury' and think, 'Oh, what a grand bunch.' They think he's guilty."
And he might be. The indictment suggests prosecutors have multiple witnesses who can detail Vick's firsthand involvement over several years. Other witnesses could agree to testify as the government, backed by skilled attorneys and virtually unlimited resources, advances its case. It's a grim picture for Vick and the Falcons.
Chuck Rosenberg, U.S. Attorney in the Eastern District of Virginia, has not been mistaken for the discredited prosecutor behind the infamous case of wrongly accused Duke lacrosse players.
"He is known to be a very low-key straight shooter," Heaphy said. "He is not the type of guy who does stuff strictly for press spectacle. He is somebody that is very careful, very meticulous and very responsible.
"So my guess is that he would not have authorized this indictment strictly to make a splash. That's just not what motivates him in my experience."
The nature of the charges against Vick seems to compel immediate action by someone, but whom? Public protests provide one avenue. Sponsors will likely sever ties.
Goodell will presumably respond forcefully if the government proves its case. He has already suspended several of the league's repeat offenders. And yet the league would be wise to proceed with caution until more is known.
"Look, I'm a vegetarian for ethical purposes," said Katz, the Maryland-based defense attorney. "I don't want anyone misusing dogs. It's just that we should let the jury trial take its course and then make judgments when the jury is all done."
Mike Sando covers the NFL for ESPN.com.