Being Fair to Michael Vick

Here is my choice for the most atrocious law-related story of the week. There are so many things wrong with it -- journalistically, legally, even morally -- that I hardly know where to begin. I focus upon it here only to show how the news media should not cover the law (if the media want to treat people fairly).

The story is about Atlanta Falcons quarterback Michael Vick. So we are clear about what I am talking about, here are the first two graphs of the article written by ESPN's Len Pasquarelli:

Two law enforcement officials familiar with the investigation have told ESPN.com they believe there is sufficient evidence to indict Michael Vick in connection with a suspected dog fighting ring that was run on property the Falcons quarterback owned in Virginia.

The sources, however, cautioned this week that, based on the current evidence, it might be difficult to successfully prosecute Vick, who has denied knowledge of dog fighting at the property in Surry County.

Those words, collectively, are the written equivalent of asking the "Have you stopped beating your wife" question in open court. Shame on the unidentified folks for saying those things to Pasquarelli. And shame on Pasquarelli and his editors for allowing the story to be posted.

Why the outrage? Let me count the ways.

1. The story contradicts itself on its most fundamental point. If there is "sufficient evidence" to indict Vick than there ought to be "sufficient evidence" to convict him, because prosecutors have a duty to indict people only when the evidence supports a conviction. In other words, if a prosecutor does not believe he or she could or would gain a conviction at trial, that prosecutor ought not bring the case to begin with. (See, Nifong, Michael.) The "law enforcement officials" Pasquarelli cited ought to know that. And even if they don't, Pasquarelli, it seems to me, has a responsibility to know something about the nature of a criminal investigation (and thus why his column turns on itself) before he starts allowing these "sources" to use ESPN.com to point a finger at Vick.

2. The use of unidentified "law enforcement officials" to anonymously and prematurely portray Vick as culpable (even with the phony caveat in the second sentence) is one of the more unfair and deplorable tactics used by police and prosecutors all over the country -- just like the staged "perp walk" that ensures that a grim picture of a particular defendant is shown over and over again in the months, weeks, and days leading up to a trial. Pasquarelli's sources are probably breaching certain rules by talking to him in this manner. And Pasquarelli's attempt to weasel out of the main thrust of the piece -- that there is sufficient evidence to indict -- is not nearly enough to balance things out.

3. By failing to inform his readers that law enforcement officials often leak information like this in this fashion as part of an overall strategy to put pressure on a suspect or target of an investigation, Pasquarelli failed to allow his readers to understand that there may be impure motives and intent behind the cooperation that his "sources" were giving him. In other words, the column desperately needed a paragraph explaining how "unidentified law enforcement sources" often are dead wrong -- especially at this stage of an investigation-- and that even when they are, the faulty information they leak can taint jurors for months or years to come. This problem is particularly unfair for suspects or targets because at this stage of a case there is no judge around to impose a gag order on anyone.

4. Pasquarelli should never have posted the piece without comment from Vick's attorney -- his article says that he he did not return messages -- or some other countervailing voice that might have mentioned some of the things I have pointed out. As it stands, the column is nothing more than a shill piece for the columnist's "sources."

I have no idea whether Vick knew that dog fighting was going on at his property or whether he was involved in it (and, really, I'm not sure I care). But I do know from covering the law that people deserve more from the media than Vick has received in this instance.

Other than that, the piece was great. If anyone of you have any good "bad" law stories to share, send them along. And have a great weekend.

By Andrew Cohen |  June 1, 2007; 8:06 AM ET
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Comments

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I think Mr. Cohen suffers from severe case of pointless and excessive hyperbole.

There are plenty of extant examples of bad police reporting to be taught in j-schools the world over. Try the Richard Jewel case, who was once accused of being the Atlanta (Olympic) Bomber, or the case of the Duke Lacrosse team, or the case of the man wrongly accused in metro articles by the Washington Post and the Park Police of drowning his wife and daughter in the C&O canal.

If it is simply examples of bad writing, derivative journalism and poor logic that must be taugher in j-schools, I nominate this blog and its blogger.

Posted by: Constitutionalist | June 1, 2007 10:00 AM

I assume constitutionalist is a name meaning the person takes his daily "constitutional" to keep his bowels moving.

There should be no need, then, to dump on this blog, but he/she may have been housebound for a few days....

Cohen is right, it was a smear job.

Posted by: Pogo | June 1, 2007 11:48 AM

Vick has been a "bad actor" who has skated for years simply because he's an immensely talented athlete (see previous Washington Post stories).

As noted above, this isn't a "Duke lacrosse" team rush to judgment or the FBI's Atlanta Olympics bombing fiasco. Vick has been too close to the legal edge too many times to not deserve harsh scrutiny in the public arena.

Remember the dope in the water bottle incident at the Miami airport, where Vick was skewered by Saturday Night Live, for among other things, "if he's a millionaire why didn't he just throw away that small amount of dope, because he must have a stash at home, which is where he was traveling to." Maybe "the dogs ate" the stash.

How do we know Pasquarelli didn't corroborate the information with multiple indenpendent sources? Isn't that what the Post does, when it keeps its sources anonymous?

"The use of unidentified "law enforcement officials" to anonymously and prematurely portray Vick as culpable (even with the phony caveat in the second sentence) is one of the more unfair and deplorable tactics used by police and prosecutors all over the country" - but you guys always report it.

"Pasquarelli should never have posted the piece without comment from Vick's attorney" - Getting the truth from a celebrity's attorney is nothing but an exercise in futility.

I don't even think that there is necessarily a contradiction in Point 1. Do you as a prosecutor not indict a celebrity, who might not be convicted because they will be able to afford the best counsel, when you would indict John or Jane Doe with the same evidence, and most likely get a conviction?

Pasquarelli may not have written a quality piece, but the likelihood is that he is close to the truth - which is what we're told journalists are striving for all of the time, isn't it?

Posted by: DC | June 1, 2007 12:03 PM

It is good to know that Mr. Cohen has a loyal following. I used to read him more frequently, and check him occasionally to see what he is up to. Usually not much that is good.

The article is not great reporting but it is not a smear job. There are some very serious AND PUBLIC allegations against Mr. Vick around his involvement in dog fighting. Anyone who has seen "Amores perros" (8.2 stars on IMDB), would know the cruelty and evil of dog fighting, whether they like dogs or not.

Even if he cannot be proven guilty of a crime, the NFL may very well take into account strong evidence, the kind that would stand up in a civil case, in determining his future as a player.

Also, it seems the question around whether the indictment would stand up mostly revolves around whether the evidence would be admitted under the 4th amendment. This is usually determined after the indictment. So I really think Mr. Cohen has either mischaracterized this story or else he is simply wrong. There is sufficient evidence to indict, but some of that evidence may be excluded later resulting in a not guilty decision by a jury.


Posted by: Constitutionalist | June 1, 2007 12:04 PM

Yes, Constitutionalist, I remember those days not so long ago few when you were one of the few brave voices arguing the virtues of Gonzo Justice.

I find it ironic that in reference to Cohen's statement:
"Here is my choice for the most atrocious law-related story of the week" you would accuse the author of engaging in "hyperbole" by "rebutting" his statement offering up shining examples from the past several YEARS.

You missed yet another qualifier. Here's a hint: "the most atrocious law-related story of THE WEEK" does not make me think about Richard Jewell and the 1996 Atlanta Olympics. Apparently that and the Duke lacrosse team were among the first things that jumped to your mind? LAST week?

I think you might have missed the tongue in cheek there too. Either way, unless you have found a wormhole in the space-time continium "week" should not equal "of all time".

Perhaps this explains why you see pointless hyperbole, when others see a tongue-in-cheek, semi-serious Friday writing exercise.

Please remember, most of us mere mortals are still bounded by a more conventional experience and understanding of space and time.

Posted by: JP2 | June 1, 2007 01:23 PM

Different strokes for different folks. I'm amazed each day at how fine Mr. Cohen's writing is, and I really appreciate his perspectives on legal issues. And I very much enjoy his sense of humor.

Posted by: lisatann | June 1, 2007 02:24 PM

Even before this article, I believed that Mike Vick was the subject of an unfair smear campaign. As Cohen points out, he very well may be shown to be guilty, but if he is not, his reputation will still be scarred and -- as usual -- there will be no accountability on the part of the media currently dragging him through the mud.

A good case in point (referenced, ironically, by DC in defense of Pasquarelli) is the water bottle incident. No marijuana was ever found, no charges were pressed, and yet people continue to use this incident against Vick -- as above, among many other places -- to show him to be a "bad actor".

Posted by: hiphoplawyer | June 1, 2007 03:14 PM

"Vick has been too close to the legal edge too many times to not deserve harsh scrutiny in the public arena."

Perhaps, but "harsh" should not equal "unfair". And just because other people are treated unfairly doesn't make that treatment appropriate for them or for Vick. I'm sure Cohen advocates fair treament for all people accused of crimes. Vick happens to be his example for this week.

Posted by: Ian | June 1, 2007 04:02 PM

"Even if he cannot be proven guilty of a crime, the NFL may very well take into account strong evidence, the kind that would stand up in a civil case, in determining his future as a player." (Con's statement)

SO WHY REPORT IT AS A CRIMINAL MATTER? if it's an investigation by the NFL, then that is the story-- from the NFL, not a prosecuting agency.


"Also, it seems the question around whether the indictment would stand up mostly revolves around whether the evidence would be admitted under the 4th amendment. This is usually determined after the indictment." (Con's statement)

IN ANY COMPETENT PROSECUTOR'S OFFICE, a 4th amendment question is seriously reviewed before a filing or indictment; there are of course, close cases and occasionally one which the prosecutor would pursue despite a problem, but prosecutions cost time and money, and those are not often wasted on cases that can't be won.

"So I really think Mr. Cohen has either mischaracterized this story or else he is simply wrong. There is sufficient evidence to indict, but some of that evidence may be excluded later resulting in a not guilty decision by a jury." (Con's statement)

SO IT WOULD ONLY BE BY EXCLUSION OF evidence, not LACK OF SUFFICIENT EVIDENCE in the first place? There may be some heft to the case, but from the information in the initial story, you would never know it was more than innuendo or speculation by an investigating agent.

The story is bogus, a smear job, maybe out of carelessness, but it epitomizes what all too often passes for journalism these days--just passing on a provocative story, without any real checking on its truth.
It's not the Jewell case, but it is a paler version of it.

Posted by: Pogo | June 1, 2007 05:06 PM

Posted by: Really! | June 2, 2007 12:06 PM

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Posted by: 8466103 | June 4, 2007 03:58 AM

So Mike Vick deserves a break, but Gonzo should be tarred, feathered, shot and hung and then tried by a jury?

Posted by: Not Paul McNulty | June 4, 2007 04:15 PM

Pasquarelli's not the only one reporting on the Vick matter, and SI's story a week or two ago also raises serious questions about his degree of involvement.

Posted by: CP | June 4, 2007 04:35 PM

Perhaps Cohen should consider gaining a better understanding of the law before making such strong statements about the work of other journalists. In order to obtain an indictment, a prosecutor must get a grand jury to find that there is probable cause that a crime has been committed. On the other hand, in order to obtain a conviction, a prosecutor must prove beyond a reasonable doubt that the defendant committed the alleged crime. They are two completely different standards and, therefore, Pasquerelli's statements are not contradictory.
As a side note, perhaps Cohen may not care that many of the dogs found on Vick's property were emaciated and had various injuries, but it IS A CRIME - legally and ethically.

Posted by: Lee | June 4, 2007 05:16 PM

the SOB was either running or tolerating a dog-fighting ring on his property.

i am sick of 'star athletes' getting free rides because they're multi-million dollar 'properties' in some big-time, big-dollar 'game'.
Screw him...Throw the farouking book at him...
or better, turn the dogs loose on him and his 'cousins.'

Posted by: konopelli | June 4, 2007 05:17 PM

NotPaulMcNulty, I wouldn't put it past this administration to appoint an NFL QB with no legal experience as our chief law enforcement officer; but last time I checked Michael Vick was not the U.S. A.G. Maybe things are different in NotPaulMcNultistan? Hence the confusion?

Posted by: JP2 | June 4, 2007 05:19 PM

Didn't know the point about finding injured dogs on the property. Uncannily Andrew makes virtually the same points I would first think of, and I am very glad he makes them, as "truth" without proper procedure (it's there for a f..g reason!)I think isn't worth its name.
Re Lee, I don't see the standards for indictment and for conviction as being totally different, just fairly slight degrees of certainty. Very likely substantive probable cause of the defendant committing the crime (90% certainty)and confirmation as much as humanly possible for a conviction (should be 99-100%).
Contrary to popular "theories" (almost degenerate in my opinion), false accusation, not to mention false conviction, can't really be "compensated" (I know the party in this situation isn't that much of a victim, but many are in analogous ones), and those who made our system of law were ACUTELY conscious of this fact, to be deferred to at the expense of glib convenience if need be.
Don't agree with DC's implication that because someone has been in trouble before (statistically independent events unless one knows for sure otherwise?), that shortcuts become justified.

Posted by: Rupert Rochtofen | June 5, 2007 11:57 AM

Just for the record I think Ian above meant
"harsh" should not equal "fair", rather than "unfair"; unfortunately that is an misbelief that is frequently made, many times tragically and unnecessarily (I hate to say, often by religious people and/or many women; strange in a way because their sympathies and fears should lead them in the opposite direction from this misconception)

Posted by: Ben G | June 5, 2007 12:26 PM

Lee: I am a lawyer and, like Mr. Cohen, I have a firm grasp of the relevant law. I think you're missing Mr. Cohen's point. He's not saying that a grand jury could not indict without sufficient evidence to convict. He is instead saying that the prosecution has an ethical obligation not even to seek an indictment unless the evidence is sufficient to convict. That is absolutely true. It is also true that prosecutors have an ethical obligation to either indict or be silent; they cannot make accusations about a person's indictability prior to indictment, as the person may never be indicted (which even the prosecutors here acknowledge is a very real possibility. This is, for example, the purpose of grand jury secrecy). Thus, the statements made to Pasquarelli are doubly unethical.

Pasquarelli's story, in turn, has two core problems. First, it knowingly allows these unnamed prosecutors to violate important duties, and to smear an unindicted individual, without taking responsibility for their actions. This is not the mere use of anonymous sources; this is repeating raw conclusions with no intrinsic support and no additional reporting to support the conclusions. Second, regurgitating conclusory satements, without more, deprives the reader of the ability to determine independently if the conclusions are fair.

Posted by: Tony | June 5, 2007 05:37 PM

When the prosecutor in the Duke lacrosse case made even more inflammatory statements early on about the guilt of those defendants, Andrew chided his readers for not giving the prosecutor the benefit of the doubt. Now he's quite adamant in the other direction.

Posted by: Tom T. | June 7, 2007 01:08 PM

Well Tom T., maybe he has come around

Posted by: | June 7, 2007 03:54 PM

Mike Vick will be found innocent..He has never lied to the Atlanta Falcons fans,not once..He as "Brutally Chastised",for being open and honest about not giving 100% in a game that he knew if we won it we were not in the playoffs..

He should have given his all,but he didn't,and,he was man enough to own up to his low play when other players on the team didn't give full effort and didn't say nothing nor did they apologize like he did..

He said he was innocent about the water bottle incident,and Miami police investigated and examined the bottle and found out he was telling the truth..

He spoke about the "STD,Ron Mexico"story..And signed a confidentail agreement not to comment about it to the press with the young lady..But,his medical records were released and he was found not to have herpes in the 1st place..


He missed an awards dinner in Washington D.C.,in his honor,for all the charitable events and things he did for kids with his foundation,and his particaption with other players with theirs..In other words,he did more than anyone else..Always giving..

THUGS DON'T GIVE..THEY TAKE..MICHAEL VICK IS NO THUG,PEOPLE!!!!

The mishap on the Plane flight...He was at a charity golf event in Tampa the night before the breakfast..

Afterwards he left and got to the airport in time for his flight,but the flight was delayed over an hour and he missed his connecting flight back to Atlanta so he could catch the flight to Washington D.C...
Airtran did what Mikes recievers did a lot last year,and that was,"they dropped the ball"..!

So he missed his flight,and was stomped and kicked by the media..When it wasn't his fault..

U may call me a "Vick Apologist",and are tired of people like me coming to his defense..Well,i am someone who believes in being innocent until proven guilty..

ANd i for one,is sick and tired of those of u accusing him of being guilty when u have no proof!!!!

Posted by: Nunna Yo Biznezz | June 28, 2007 10:23 AM

Mike Vick will be found innocent..He has never lied to the Atlanta Falcons fans,not once..He as "Brutally Chastised",for being open and honest about not giving 100% in a game that he knew if we won it we were not in the playoffs..

He should have given his all,but he didn't,and,he was man enough to own up to his low play when other players on the team didn't give full effort and didn't say nothing nor did they apologize like he did..

He said he was innocent about the water bottle incident,and Miami police investigated and examined the bottle and found out he was telling the truth..

He spoke about the "STD,Ron Mexico"story..And signed a confidentail agreement not to comment about it to the press with the young lady..But,his medical records were released and he was found not to have herpes in the 1st place..


He missed an awards dinner in Washington D.C.,in his honor,for all the charitable events and things he did for kids with his foundation,and his particaption with other players with theirs..In other words,he did more than anyone else..Always giving..

THUGS DON'T GIVE..THEY TAKE..MICHAEL VICK IS NO THUG,PEOPLE!!!!

The mishap on the Plane flight...He was at a charity golf event in Tampa the night before the breakfast..

Afterwards he left and got to the airport in time for his flight,but the flight was delayed over an hour and he missed his connecting flight back to Atlanta so he could catch the flight to Washington D.C...
Airtran did what Mikes recievers did a lot last year,and that was,"they dropped the ball"..!

So he missed his flight,and was stomped and kicked by the media..When it wasn't his fault..

U may call me a "Vick Apologist",and are tired of people like me coming to his defense..Well,i am someone who believes in being innocent until proven guilty..

ANd i for one,is sick and tired of those of u accusing him of being guilty when u have no proof!!!!

Posted by: Nunna Yo Biznezz | June 28, 2007 10:23 AM

Mike Vick will be found innocent..He has never lied to the Atlanta Falcons fans,not once..He as "Brutally Chastised",for being open and honest about not giving 100% in a game that he knew if we won it we were not in the playoffs..

He should have given his all,but he didn't,and,he was man enough to own up to his low play when other players on the team didn't give full effort and didn't say nothing nor did they apologize like he did..

He said he was innocent about the water bottle incident,and Miami police investigated and examined the bottle and found out he was telling the truth..

He spoke about the "STD,Ron Mexico"story..And signed a confidentail agreement not to comment about it to the press with the young lady..But,his medical records were released and he was found not to have herpes in the 1st place..


He missed an awards dinner in Washington D.C.,in his honor,for all the charitable events and things he did for kids with his foundation,and his particaption with other players with theirs..In other words,he did more than anyone else..Always giving..

THUGS DON'T GIVE..THEY TAKE..MICHAEL VICK IS NO THUG,PEOPLE!!!!

The mishap on the Plane flight...He was at a charity golf event in Tampa the night before the breakfast..

Afterwards he left and got to the airport in time for his flight,but the flight was delayed over an hour and he missed his connecting flight back to Atlanta so he could catch the flight to Washington D.C...
Airtran did what Mikes recievers did a lot last year,and that was,"they dropped the ball"..!

So he missed his flight,and was stomped and kicked by the media..When it wasn't his fault..

U may call me a "Vick Apologist",and are tired of people like me coming to his defense..Well,i am someone who believes in being innocent until proven guilty..

ANd i for one,is sick and tired of those of u accusing him of being guilty when u have no proof!!!!

Posted by: Nunna Yo Biznezz | June 28, 2007 10:23 AM

I only hit the submit tab once,and it came up with my comments more than once, sorry..

And,i forgot about the water bottle incident..It was tested and no illegal residue was found in it..

LEave the man alone!!

Posted by: Nunna Yo Biznezz | June 28, 2007 10:26 AM

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