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.