Plea Bargains Generally and in Tax Cases; Moneyball

Plea Bargains Generally and in Tax Cases; Moneyball

In two cases, the Supreme Court has recognized the central role of plea bargaining in the criminal system and held the right to effective assistance of counsel extends to advising the client in plea negotiations.  Missouri v. Frye, ___ U.S. ___, 2012 U.S. LEXIS 2321 (2012) (enhanced opinion available to lexis.com subscribers with summary, headnotes, and Shepard's), (Non-subscribers can download the unenhanced official opinion from the Supreme Court in Missouri v. Frye, ___ U.S. ___, 2012 U.S. LEXIS 2321 (2012)) (failure to advise the defendant of a time-limited plea offer by the prosecutor); and Lafler v. Cooper, ___ U.S. ___, 2012 U.S. LEXIS 2322 (2012) (enhanced opinion available to lexis.com subscribers with summary, headnotes, and Shepard's), (Non-subscribers can download the unenhanced official opinion from the Supreme Court in Lafler v. Cooper, ___ U.S. ___, 2012 U.S. LEXIS 2322 (2012)) (providing the defendant highly questionable advice to reject a proffered plea and go to trial instead).  In an earlier case, the Court had anticipated this broader holding in the context of a plea agreement where the attorney failed to advise the defendant of the collateral immigration consequences of the plea.  Padilla v. Kentucky, 559 U. S. ___, 176 L. Ed. 2d 284 (2010) (enhanced opinion available to lexis.com subscribers with summary, headnotes, and Shepard's), (Non-subscribers can download the unenhanced official opinion from the Supreme Court in Padilla v. Kentucky, 559 U. S. ___, 176 L. Ed. 2d 284 (2010)).

The crux of the holdings is (Missouri v. Frye):

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I do want to address statistics.  As quoted in Frye, the Court observed the "simple reality" that "Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas."  Since this is a federal tax crimes blog, I and, I think, readers of the blog, might like to know what the plea rate in federal tax crimes is.  We know the plea rate is high, but I have found it difficult to ascertain what the plea rate actually is.

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Perhaps the issue is not that important -- does it really make a difference whether the conviction rate is 90 or 97% or the plea rate is 90 or 97%?  Perhaps it does.  It could suggest that, despite the lore that tax cases have a high rate of conviction, they really don't relative to general federal tax system.  It could mean that DOJ Tax is not that selective in picking cases to indict.  It could mean that DOJ Tax criminal prosecutors (including their AUSA colleagues in trying these cases) are not as good as nontax federal criminal prosecutors.  It could mean that convictions in tax cases are just harder to achieve than for the other federal crimes.  At any rate, it would at least be interesting to get the real statistics and see if we can play Moneyball with them.

Moneyball

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View Jack Townsend's opinion in its entirety on the Federal Tax Crimes blog site.

For additional insight, explore Tax Crimes, authored by Jack Townsend and available at the LexisNexis® Store.

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