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April 25, 2019 Practice Points

What Practitioners Should Know About Navigating the Prosecutor’s “Trial Tax”

How to advise your white-collar clients on the risks associated with rejecting a plea deal.

By Paige A. Nutini

Every criminal defense lawyer knows the cautionary tale: Your client is charged with distributing drugs and rejects the initial plea offer of two years. Weeks before trial, the prosecution gives notice of two prior drug convictions against your client, or perhaps brings additional charges because the drug sale occurred in a school zone. Now, instead of two years, your client is facing a maximum sentence of life without parole.

Studies estimate that well over 90 percent of criminal cases are resolved by plea bargaining than by trial. For better or worse, plea bargaining has become essential to the criminal justice system. And because the same criminal act may be charged in a variety of ways, and/or certain enhancements may be applied, a prosecutor has immense discretion to determine the fate of those facing criminal prosecution. Often referred to as the “trial tax,” a prosecutor may elect to bring more serious charges against a criminal defendant who rejects a plea deal and elects to proceed toward trial.

It’s a tactic increasingly employed in white-collar criminal prosecution as well. Even Hollywood’s elite cannot escape, as evidenced by the recent “Operation Varsity Blues” college admissions bribery scheme. Recently, actress Lori Loughlin and her fashion designer husband, Mossimo Giannulli, were indicted with additional charges of money laundering and conspiracy to commit mail fraud, each carrying a 20-year maximum jail sentence, after reportedly rejecting a more “lenient” plea deal. The superseding indictment against Loughlin, Giannulli, and 14 others quickly followed the announcement that more than a dozen of Loughlin’s co-defendants agreed to plead guilty to their own charges.

As feelings of regret no doubt settle in for Loughlin and others, this high-profile scenario is the perfect reminder to the white-collar defense bar to engage in up-front, comprehensive client counseling.

White-collar clients likely understand that prosecutors retain wide latitude to negotiate a plea deal. But clients must also understand that a prosecutor’s power includes the power to seek sentence enhancements or additional charges even after he or she rejects a plea deal, and that criminal plea negotiations can be unlike other business negotiations in which the parties may feel compelled to exchange offers for counteroffers in an attempt to reach a mutually beneficial resolution. This is not to say that all is lost or that a prosecutor cannot be negotiated with. However, a client must adequately understand the risks associated with rejecting a plea offer, and the limitations the attorney has in determining the charges he or she may face.

Paige A. Nutini is with Polsinelli PC in Atlanta, Georgia.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).