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In the end even a player with the moves of Michael Vick couldn’t get away from his past. Facing up to five years in federal prison for conspiring to run a dogfighting ring, and with his fellow defendants flipping faster than fry cooks at an IHOP, the star quarterback for the Atlanta Falcons was forced to strike a plea deal with prosecutors. Vick won’t be sentenced until next week, but you can well imagine what the embattled NFLer is thinking: How in the world did it ever come to this? The answer is that the fleet-footed Vick was caught in one of the oldest traps in American justice: the illegal shift. On the football field when a player fails to properly reset after going in motion and is flagged for an illegal shift, he earns his team a five-yard penalty. In law, however, the consequences are much more severe. The classic illegal shift occurs when an activity that is technically against the law, but rarely enforced as such, suddenly launches into public prominence, leaving those targeted for prosecution disoriented and disbelieving. Often they feel unjustly persecuted, and their plight draws sympathetic clucking from supporters about how “too big a deal” is being made of their offense. In Vick’s case, the shift moved dogfighting from the category of being ostensibly illegal but no big deal, to one of dogfighting being a matter of serious criminal concern and public outrage. Vick isn’t the only athlete to be caught in an illegal shift recently. For years baseball players juiced up with steroids and sent their home run totals rocketing up through the record books. Never mind that steroids have long been classified as a controlled substance under federal law, and distributing them is a felony. Hey, chicks dig the long ball. Former Maine Sen. George Mitchell is still investigating the extent of steroid use in baseball, but the BALCO case and assorted other evidence has already made it clear that their use was rampant in Major League Baseball for many years. And who cared? No one, really. Least of all baseball itself. Then came the shift and Major League heroes like Mark McGwire and Sammy Sosa were hauled before Congress to testify about their steroid use. When San Francisco Giants slugger Barry Bonds broke Hank Aaron’s home run record recently, Aaron wasn’t there to see it. Bonds’ alleged steroid use so tainted his feat in many people’s eyes that they refuse to acknowledge its legitimacy. Pro athletes are hardly alone in being trapped by illegal shifts. In the 1980s, traders on Wall Street swapped inside information like they were trading recipes over the back fence. Illegal? Well, sure — if you want to get technical. But everyone was doing it, so what was the big deal? Then an ambitious federal prosecutor, one Rudolph Giuliani, intersected with the Black Monday stock market crash of 1987, and suddenly insider trading was front-page news. In short order wealthy financiers like Ivan Boesky and Michael Milken went from standing on private helipads to wearing prison orange. Washington has seen its fair share of illegal shifts. For years well-heeled lobbyists like Jack Abramoff conducted their influence peddling more or less out in the open, or at least at prominent tables in high-end eateries. Then the shift hit, and suddenly the line dividing the plainly illegal from the merely sleazy oozed over a couple of spots, helping land Abramoff and several of his associates in jail and sending other lobbyists running for cover, at least for a while. A similar sort of shift caught President Bill Clinton by surprise. Before the Paula Jones case, no one really imagined a sitting president could be hauled into court on a civil suit and quizzed about his sexual escapades. Clinton protested on national TV that he had been forced to answer questions that “no American citizen would ever want to answer.” He objected, but to no avail. The line had shifted, just as it had for presidential candidate Gary Hart in 1987 when previously accommodating reporters defied convention and splashed his extramarital dalliances across the front page. But perhaps the greatest self-proclaimed victim of the shift was President Richard Nixon, who long after he was driven from office by the Watergate scandal continued to claim that his predecessors had engaged in far worse political shenanigans than he ever had. Nixon clearly saw himself as the victim of an illegal shift about which kind of dirty tricks were allowed a politician and which were not. Like so many others, he failed to notice not so much that he had crossed the line, but that the line had crossed under him. “I am not a crook,” Nixon famously declared near the bitter end of his struggle. Funny, that’s pretty much what Michael Vick’s been saying.
Douglas McCollam, senior editor of Legal Times , can be contacted at [email protected].

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