Thursday, June 25, 2009


The talk of the town is Madoff, assuming one is limited to discussions in the white collar area.  With some comparisons and non-comparisons to Stanford, (see here) and others looking at Skilling's case. (See Business Week here). The sentencing is set for Monday, and the latest is that Bernie Madoff will be allowed to appear in civilian garb. (See here)

Not surprisingly, defense counsel for Madoff filed a sentencing memo asking for 12 years, a number that some victims are not happy with. Will the sentence be higher because cooperation has not reached a level of assisting the government in providing information (if it exists) on others close to him? See David Glovin & Thom Weidlich, Madoff’s Failure to Name Accomplices Cripples His Leniency Bid

Or maybe it will be higher than the amount requested by defense counsel, for the reason that the fraud involved here is not what is seen in many white collar cases. In white collar cases, especially ones coming from the corporate sector, we often see the accused arguing that he or she did not know the conduct was illegal.  Some will argue that admitting the wrongdoing and accepting responsibility should be credited as the Sentencing Guidelines advise.  Others, however, may wonder if this is the perfect example of a case that demonstrates why one should not be penalized for going to trial. Maybe it is easy to say one is guilty when they are the sole person who committed the crime.  But when the acts of others are involved, or the crime involves ambiguous business conduct, it becomes more questionable. So, the real question here is not whether Bermie Madoff should receive 12 years, but whether this sentence is proportionate to others who went to prison for longer amounts of time for conduct they believed was not illegal or for which they should not be held accountable.  It is normally the government that argues that the lesser sentence should go to the one who pleads and cooperates.  But will the government really take that position when the case involves Bernie Madoff? 

Madoff''s Sentencing Memo - Download US_v_Madoff_Sentencing_Letter_June_23_2009 ( w/ a hat tip to Peter Henning)

(esp) (blogging from Tuscon, Arizona)

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It would be akin to rubbing their faces [victims] in the mud - if the DOJ dared to seek less than the max.

Arguably - anything beyond 12 years could be seen as "the rest of his life" sentence.

However, that is not a Life sentence - being that the Fed guidelines are calculated by years - nor has Madoff claimed any specific Illness as germane.

The fact of the matter is the DOJ and the Courts must send a clear message that deliberate fraud is Intolerable!

Nothing more - but most certainly
Nothing Less!

Posted by: Laser Haas | Jun 26, 2009 10:46:46 AM

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