For defendants facing federal charges, the chances that they will plead guilty once indicted are high ... very high ... like 95%. There are two main reasons for this; 1) the heavy financial burden of going to trial and 2) the long sentence that await those who lose at trial. So when Lori Loughlin pled guilty, it was interesting because she had a great case and plenty of money to go the distance. So why the change of heart?
Actress Lori Loughlin (C) and husband Mossimo Giannulli (C rear)exit the Boston Federal Court house ... [+]
The cost of defending oneself in a federal criminal trial can cost hundreds of thousands or millions of dollars. A few years ago, I spoke with noted defense attorney Jack Sharman of Lightfoot, Franklin & White, LLC in Birmingham, AL about the rising legal costs for white-collar defendants. "Over a long and complex case, you wonder if you could even afford yourself.” He is right. Most defendants I have talked with tell me of liquidating most of the assets they have before deciding to plead guilty.
Long prison terms also await those who are found guilty at trial. A paper in 2018 by The National Association of Criminal Defense Lawyers concluded, “Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt ...”
The government’s case was built on a series of recordings made by Rick Singer, the star cooperating witness and the consultant who was going to get the children of his wealthy clients into top universities. Singer recorded numerous conversations with a number of people with those who were ultimately indicted, including Loughlin. The contents of those recordings were often leaked or made part of government proceedings to pressure the defendants into pleading. However, in April government prosecutors “belatedly disclosed Singer’s contemporaneous written notes [on his iPhone] revealing that those recordings were a sham carefully engineered by government agents in an effort to “entrap” Defendants and ‘nail’ them ‘at all costs.’”
Assistant US Attorneys Karin M. Bell and Stephen E. Frank responded that, “the government should have produced the notes earlier, under the applicable deadline set by the Local Rules. But the defendants’ contention that the government acted in bad faith is baseless; in a sprawling, fast-moving prosecution, the failure to produce the notes earlier was simply a mistake.” That ‘mistake’ was withholding information on Singer’s iPhone where he noted pressures put on him by authorities to entrap parents. How long was that information withheld? 16 months !!! It was finally produced in February 2020, initiating the prosecutorial misconduct claims made by Loughlin’s lawyers.
What is more disturbing is that prosecutors, who were holding on to this potentially exculpatory information, put additional pressure on Loughlin last October by bringing additional charges.
Judge Gorton ruled in May that he had concluded that he was “satisfied that the government had not lied or misled the Court.” Gorton also stated that Loughlin, if not happy with his decision, would have ample opportunity to cross examine Singer if and when he testifies at trial. After the ruling, Loughlin’s attorneys held discussions with federal prosecutors who must have been feeling lucky with Gorton’s ruling but not so much looking forward to trial. A deal was struck for a guilty plea.
Loughlin pleaded guilty to conspiracy to commit wire and mail fraud, and Giannulli pleaded guilty to conspiracy to commit wire and mail fraud and honest services wire and mail fraud. Sentencing is set for August 21.
Loughlin’s plea is not your regular plea agreement. It is referred to as a C-plea, a reference to Fed. R. Crim. P. 11(c)(1)(C), which takes the guess-work out of the prison sentence by tying the judges hands. Loughlin’s C-plea states a prison sentence of 2 months in prison and Judge Gorton could either accept the plea or reject it ... if he accepted the plea, the sentence will be 2 months ... no more, no less. He accepted it.
The calculus of whether to accept or reject such a plea for someone who in Loughlin’s shoes was quite simple. Alternatively, this case could go into a trial where she could face years in prison (my guess would have been 4-5 years if guilty ... but I think she had a strong case).
Loughlin’s plea is a blow to our justice system. Trials are few and the outcomes are usually certain (guilty). This case would have done more than given Loughlin her day in court, it likely would have exposed some of the government prosecutor tactics used to strong-arm defendants into guilty pleas.
