Federal prosecutors have long used the threat of more serious charges as a way to compel defendants to plead guilty and avoid a trial.
But when Andrew Lelling, US attorney in Massachusetts, actually announced new charges recently against actress Lori Loughlin and 10 other parents implicated in the nationwide college admissions cheating scandal, some defense attorneys saw those indictments as an unusually aggressive attempt to strong-arm defendants seeking to exercise their Sixth Amendment right to a jury trial. This time, the defendants were charged with bribing university officials to improve their children’s chances at admission.
“The idea that the prosecutor is outwardly coercing people into pleading guilty by piling additional charges on them, I believe, is an abuse of prosecutorial power,” said John Amabile, a veteran defense attorney who has faced off with prosecutors in federal and state court. “That seems beyond the pale.”
To other legal observers, the round of charges is a routine part of plea bargaining that is drawing attention because of the high-profile nature of a scandal that has drawn nationwide attention.
Prosecutors “are trying to improve their negotiating position and they do that sometimes by overcharging or holding charges in abeyance,” said Robert Bloom, a professor of law at Boston College. “I wouldn’t go as far to say it’s an abuse of his power because unfortunately it’s part of the system. It doesn’t make it right but that’s the way it is in America.”
Loughlin and the other parents were initially arrested in March for allegedly conspiring with former college consultant, William “Rick” Singer, to bribe SAT and ACT exam administrators to allow someone to secretly take the test in the students’ place or correct their answers afterward.
Dozens of parents were implicated in the scheme, but actress Felicity Huffman and other parents quickly announced they would plead guilty and released statements apologizing for their wrongdoing. Loughlin and the other defendants, in contrast, maintained their innocence and vowed to fight the charges.
Soon after, prosecutors charged those defendants with conspiring to launder the bribes to the exam administrators by funneling them through Singer’s purported charity. Singer, who has pleaded guilty, is now a cooperating witness for the government, which named the investigation “Operation Varsity Blues.”
The new charges, handed down by a federal grand jury, accuse the parents of bribing University of Southern California employees in exchange for presenting their children as athletic recruits to admissions officials, even though the prospective students did not participate in the sport, prosecutors said.
Loughlin and her husband, J. Mossimo Giannulli, allegedly paid $500,000 in bribes so USC employees would designate their two daughters as crew recruits, even though neither of them rowed.
Lelling declined to comment, but in a statement he said the new charges were the result of an ongoing inquiry.
“Our goal from the beginning has been to hold the defendants fully accountable for corrupting the college admissions process through cheating, bribery, and fraud,” he said. “The superseding indictments will further that effort.”
In an interview with WCVB-TV earlier this month, before the new indictments, Lelling said that “it will probably go better” for defendants who “take responsibility for their conduct early on.”
Lelling said Huffman’s 14-day sentence for paying for a stand-in to take her daughter’s SAT test for her was fair, given her quick acceptance of guilt and clear remorse.
“The longer the case goes, let’s say [Loughlin] goes through to trial, if it’s after trial, I think certainly we’d be asking for something substantially higher,” Lelling said in the interview, referring to a prison sentence. “If she resolved her case short of trial, something a little lower than that. It’s tough to tell at this point.”
Some legal observers said such comments and the new indictments are blunt reminders of the enormous power of the prosecutor’s office.
“They’re doing it precisely because [Loughlin] wants to challenge them with a jury trial,” said Jack Cunha, another veteran defense attorney. “It may not be illegal but it’s not fair. The effect is that they are potentially punishing someone for exercising their right to a jury trial.”
But former prosecutors said there is nothing surprising, unusual, or unfair about Lelling’s latest move.
“I expected this,” said Adam Citron, a former state prosecutor in New York who is now senior counsel at Davidoff, Hutcher and Citron. Loughlin “is in no way, shape, or form acknowledging that what she did was wrong. She is putting the government and the court system through a lot of work. Judges and prosecutors want to see people step up and acknowledge that what they did was wrong and show remorse.”
Since 2000, the annual number of federal civil and criminal jury trials has dropped by more than 53 percent, a statistic that has alarmed many federal judges. Boston US District Court Judge William Young has written extensively on the decline and the historical importance of the jury as a check on the executive branch.
“It’s a constitutional right to have our case heard by our peers rather than a single judge,” said Nancy Gertner, a former federal court judge in Boston’s US District Court. “We have ceded sentencing to the prosecutor in large measure, which is wrong.”
During her time on the bench, Gertner said, she repeatedly saw defendants plead guilty rather than risk going to trial after prosecutors brought additional charges against them, particularly in drug cases where there were mandatory minimum sentences.
“It’s not illegal, but it’s a distortion of the system in the sense that it undermines the right to a jury trial,” she said. “The more penalties [defendants] are exposed to, the more burdensome going to trial is.”
Maria Cramer can be reached at email@example.com.