Wednesday, August 29, 2007

Michael Vick Plea Deal:

Is It Over Yet?


The Cool Justice Report
Aug. 29, 2007

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

On Monday, NFL superstar Michael Vick stood before the bar of justice in a federal courtroom in Virginia and pleaded guilty to conspiracy to travel in interstate commerce in aid of unlawful activities and to sponsor a dog in an animal fighting venture.

Sentencing is scheduled for December 10th. A written plea agreement was signed by Vick and his attorneys and made part of the record in his pea hearing. The agreement defined the terms of the offense, the potential punishment and the responsibilities imposed on Vick to cooperate with the government in a continuing investigation.

Such agreements are commonplace in federal courts throughout the country. In contrast, when a defendant enters a guilty plea in Connecticut's Superior Court there is no formal written agreement. Rather, the court questions the defendant to determine whether the plea is voluntary, made with the effective assistance of counsel and with full knowledge of the facts and possible penalties. Defendants must acknowledge they are aware of the constitutional rights that are being waived when a guilty plea enters. Those rights include the right to a trial by a court or a jury; the right to cross examine and confront witnesses; the right to compel testimony by subpoena; and, most importantly, that the defendant cannot be compelled to testify by the state.

The scope of this type of canvass has evolved through decades of case law, addressing instances where defendants entered guilty pleas without effective representation, without a full explanation of the elements of the crime charged and the nature of the rights they were waiving. A guilty plea that is obtained without this type of knowing waiver can be set aside later. Our state judges have refined the procedure and uniformly follow the same script in canvassing a guilty plea.

Vick's plea agreement lays out the potential sentencing guidelines that suggest the appropriate sentencing range. The federal conspiracy statute carries a maximum five-year prison sentence; however, since the advent of the federal sentencing guidelines in 1987, statutory maximums are seldom imposed on a guilty plea.. The sentencing guidelines employed in the federal court are no longer mandatory on federal judges; however, the United States Supreme Court has determined that the guidelines should be accorded substantial deference by the sentencing court. The federal probation office performs a guidelines analysis for the benefit of the court, taking into consideration comments and legal points raised by counsel for each side.

In Vick's case the plea agreement contains two important features that will bear heavily on whether, and to what extent he will serve prison time. In the first instance, the parties have stipulated that the guidelines provisions that apply to the crime of conspiracy understate the severity of the defendant's conduct and that an upward departure is appropriate. Upward departure means that the parties acknowledge that the court can depart from the suggested Guidelines range and impose a greater sentence than is called for under a strict guidelines analysis. This reflects that the lawyers contemplated in their plea negotiations that a penalty greater than that usually imposed in general conspiracy cases was appropriate. In exchange for this concession, Vick obtained an agreement from the government to proceed only on the general conspiracy charge, rather than pursue additional charges. The language of the one count Indictment contemplated that the more serious charge of racketeering (RICO) was also implicated by the conduct alleged. In fact, the government made clear that if not for the guilty plea it was proceeding back to the grand jury to seek a superceding indictment, adding additional charges.

The second important component of the plea agreement is Vick's willingness to cooperate in a continuing federal investigation. In this district, cooperation agreements are employed when a defendant enters a guilty plea and agrees to become a cooperating witness. Such agreements are separate from the formal plea agreement and are generally filed under seal with the court. A public cooperation agreement can destroy a defendant's potential to aid the government, as it clearly announces to his former criminal confederates that he has taken on the status of being a potential informer. In many cases, particularly those involving narcotics and organized crime, public disclosure of a cooperation agreement presents a serious risk to the safety of the cooperator.

Vick's agreement provides that if the government determines that his cooperation is substantial and in aid of its continuing investigation, they will file a motion with the court seeking a downward departure from the adjusted guidelines range. At first the existence of the stipulation for upward departure together with this provision for a potential downward departure appear contradictory. In point of fact they are not. Instead, the confluence of these two provisions demonstrate to the defendant the severity of the potential sentence while placing before him the proverbial "carrot on the stick" that his cooperation can drastically reduce his prison exposure.

Vick now faces the possibility that the Virginia state authorities will seek his prosecution for animal cruelty charges. As a separate sovereign Virginia is free to prosecute Vick as well, without violating the Constitution's prohibition against double jeopardy. There has been considerable public pressure for Virginia to prosecute. State and federal prosecutors cannot bind the other in plea deals. If Vick does possess the potential to aid a continuing federal investigation, the specter of state charges can have a chilling effect; in that, any sentence reduction he obtains through his federal cooperation can be undone by additional prison time that can be imposed in the state court.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, American Academy of Trial Counsel. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

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