The Madoff Gambit (Update)

News has broken from the Curcio hearing that Bernard Madoff will plead guilty to 11 counts in an information, with no deal from the government.  None.  Zero.  Nada.  Having handicapped the possible tactics behind a plea, things are now getting really interesting. 

Either Ira Lee Sorkin has the most brilliant, the most fantastic, the most daring plan ever devised by a criminal defense lawyer up his sleeve, or this is utter madness. 

On its surface, it appears that Madoff has given it all away.  Granted, it’s not good enough for the victims, but short of him paying every one of them back personally, and then allowing each to individually shove a knife in his heart, it’s unlikely that they will ever feel satisfied.  Still, from the defense perspective, Madoff can anticipate receiving nothing more than the standard 3 point reduction for acceptance of responsibility, which will likely do absolutely nothing for him given his age and the fact that he has so maxed out the guidelines (ending at a mere $400 million fraud loss) that he’ll never walk out of prison under any circumstances.

So what gives?

Jeralyn at TalkLeft notes that he’s likely to be put in on Thursday, when the plea is scheduled to be taken.  That seems reasonable, given that there’s little basis to argue that he should be left out until sentence under the circumstances.  But then why agree to waive indictment?  Why agree to plead guilty?  Run the government through its paces and stay home with the wife for as long as possible.  Who knows how much longer he’s going to live.  Fight hard and he may never see the end of this case.

Since hearing the news that Madoff was taking an open plea, I have strained to come up with a reason why.  I tried so hard that I think I’ve broken something, to no avail.   If Sorkin has a reason, some trick up his sleeve, I can’t figure out what it could be.  While there are very good reasons to take an open plea under certain circumstances, I don’t see how any apply in this case.  I’m totally blown away.

It could well be that Bernie Madoff has decided, as have many defendants before him, that he can’t stand the pressure and wants to end this prosecution as quickly as possible.  Is this just unconditional surrender?  Has Bernie collapsed on the ground, quivering like jelly and prepared to silently accept his fate?  Perhaps, though I would certainly expect Sorkin to talk him out of it, allowing the defense a couple of days to cut some sort of deal that would bring Madoff some sort of benefit.  Something. 

As it stands, he gets nothing.  Worse than nothing, since Jeralyn is likely right that he stands a very good chance of being put in at the plea, while the case will go on for quite a while before sentence is imposed.  Did he at least get a concession to stay out pending sentence?  According to Lev Dassin, not only are there no concessions whatsoever, but

“The filing of these charges does not end the matter,” said Acting Manhattan U.S. Attorney Lev Dassin. “Our investigation is continuing.”

That means Ruth and boys are still at risk, as is Bernie should the investigation unearth something new, which may well happen.

If Ira Lee Sorkin has a plan, I can’t figure it out.  Otherwise, this just looks like the Fool’s Gambit, with Bernie Madoff as the fool.  I don’t get it.

Update:  It would appear that similar thoughts have run through the minds of  Doug Berman and Jeralyn Merritt as well, who asks:

He’s 70 years old. Even if he gets a 25 year sentence with good time, he’s likely to die in prison. He’s not going to a minimum security camp. So why is he pleading guilty? Are there secret agreements we don’t know about?

It’s not like the Government could give him any more time if he went to trial and lost. What was he afraid of? That he’d be sentenced to life plus cancer?

She’s very funny, that Jeralyn.  Life plus cancer.  That’s a keeper.

13 thoughts on “The Madoff Gambit (Update)

  1. Dan

    The only thing I can think of is that any deal would have required Madoff to give truthful information about his sons and/or wife and he didn’t want to do that. But as you ask, why then plead guilty or waive indictment? I dunno. Maybe he thinks he’s slowing the investigative momentum against his sons by pleading guilty. Still, you’d think he’d want to enjoy his current bail status for as long as he can.

  2. Jdog

    Well, since I’m always happy to flaunt my ignorance: is it possible that there’s some discreet understanding to leave the wife and kids alone, or more alone than they would otherwise be left? (I know of that happening elsewhere, in less visible cases; locally, is that’s what finally got Minneapolis’ famous madame to plead out; now, of course, we have no prostitution here, so it all ended well.)

    Conspiracy theorist that I am (well, not much), it’s not inconceivable to me that the message to the Feds might be, “Hey, do what you want with me, but if you should happen to announce, at some point, that the wife and kids skate, it’s not impossible that some Anguillan bank account numbers might be passed along to the Feds.”

  3. SHG

    Under other circumstances, I think your theory might have legs.  But here, where there are thousands of additional eyes (both media and victims) watching, any scent of a backroom deal will cause it to explode.  Plus, even if the government was willing to trade off the wife and kids for something, what’s to say that they won’t flip after they get the loot?  It’s not like Madoff has a lot of leverage left, unless he plans on giving them a Swiss account per year until all the players are dead.

  4. Jonathan Edelstein

    Wow, 10M in legal fees and the guy pleads to a Pimentel letter.

    The only chain of logic I can think of is this: (1) the US Attorney’s office won’t deal, so (2) the only hope of leniency lies with the court, and (3) the best shot is to admit everything and throw himself on the mercy of the judge, who might be more detached from political pressure. Maybe Sorkin is planning to submit one hell of a 3553(a) letter, hyping up Madoff’s age and lifetime of good works, in the hope that the court will impose something less than a de facto life sentence.

    I don’t anticipate that it will work, but I can see how Madoff might believe it’s his only chance.

  5. SHG

    I guess that’s possible, but I wouldn’t believe it and I doubt you do either.  Just thinking about them having a good laugh while preparing the Pimentel letter has me laughing.  “Should we include ‘sophisticated means?”  Sure, why not…” 

    In fairness to Ike, I’m just guessing as to the $10M fee.  It might be more. 

  6. Jonathan Edelstein

    No, I don’t believe it, and if Madoff were my client, I’d have slapped him upside the head for even thinking about going along.

    They didn’t miss much in the Pimentel letter, did they? If I wanted to push the envelope, I might also have gone for a position-of-trust enhancement, but I can’t think of anything else. The sad thing is that this is precisely the kind of guideline stacking that Judge Rakoff condemned in the Adelson case (especially the enhancements for stealing from 250 or more victims and endangering the financial security of 100 or more people, which seem duplicative), but since it’s Madoff, the only reaction will be applause.

    And hey, even if it is only $10M, I’d take that for a straight-up plea.

  7. Turk

    Perhaps nothing more complicated than a guilty conscience. When Elie Wiesel is calling for your head, you know you’re in bad shape.

    Sorkin likely did exactly what he was directed to do by his client, notwithstanding his protests that he could string it out for awhile. End it now. Stop the decades of lies. And the sooner the rest of his family and (former) friends can move on the better.

  8. SHG

    Twenty, thirty, forty years of running this scheme and building up an awful lot of calluses in the process, and now he has a guilty conscience?  Hey, it’s possible. 

  9. Jdog

    I dunno. Maybe he’s decided that a federal prison is the safest place to be, all in all, and he’s tired of looking over his shoulder. He’s not likely to run into, say, Elie Weisel, Ira Roth, Jeffrey Katzenberg and/or Senator Lautenberg there, after all.

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