Monthly Archives: June 2009

The Government’s Turn: Bernie Is Baaaaaad

With sentencing just around the corner, AUSA Marc Litt has filed the government’s sentencing memorandum and argues that Bernie Madoff should get 150 years in prison for his crimes. There appears to be a wide disparity between Ike Sorkin’s 12 year proposal and the government’s life plus cancer position.

In juxtaposition to Sorkin’s informal and surprisingly short letter memo, Litt submitted a formal memorandum which, for the first time, provides some insight into the real case against Bernie Madoff. Up to now, reports of Bernie’s crimes have been largely cursory and hyperbolic, without much by way of hard allegations of criminal conduct. To some extent, the government’s memo finally puts some meat on the bones, though it’s slim pickings given the scope of the crimes.

From next Monday’s (sentencing date) New York Law Journal :

In a 24-page sentencing memorandum, Acting U.S. Attorney for the Southern District Lev L. Dassin, noted that between December 1995 and December 2008, the Ponzi scheme Mr. Madoff, 71, engaged in was “wholesale fraud” causing net losses of $13.2 billion to 1,341 accounts. It characterized his crimes as “serious and long-running, complex and highly orchestrated and devastating to generations of investors around the country and abroad.”

The government’s loss calculations remain somewhat unclear, though largely a product of what it describes as poor record keeping and the duration of the scheme, going back to the 1970s. Yet $13.2 billion falls short of the initial claim of $50 billion, which was (as anticipated) an exaggeration. On the other hand, even a $13.2 billion loss dwarfs anything that came before it. Imagine, who ever thought we would come to the day when a loss was just $13.2 billion?

The more significant aspect of the government’s memo was the opportunity to grasp the “what” and “how” someone could have managed to pull off a scheme of this scope and duration. Seriously, if strains credulity to believe that someone could create a private brokerage which took in about $170 billion in the course of its existence, without ever actually functioning. Unfortunately, the scenario remains as vague now as ever.

Madoff had represented to his account holders that they had assets with BLMIS worth approximately $65 billion when, in fact, Madoff had not purchased any securities on their behalf. (emphasis added)

This sentence is astounding. How is it possible that no one, but no one, knew that Madoff, one of the highest fliers within the securities, was taking in billions and didn’t trade any securities. “[H]ad not purchased any securities on their behalf” is not the sort of thing that wouldn’t be noticed on the street. Somebody, somewhere, had to notice that Bernie’s trader was sitting there, sipping lattes, for more than 20 years, while the rest of them were busily buying and selling.

In fact, given Bernie’s fabulous success, you would think that every house on the street would have someone whose only job was to keep an eagle eye on what Bernie was buying and selling. They should have known every time a Madoff trader burped. Yet this went on for more than a generation and it never occurred to anyone that Bernie didn’t hold a single position? The cursory description of the scheme, unfortunately, provides little insight into how it was possible that this happened.

Litt knocks down the two primary arguments made by Ike Sorkin in support of his request for “justice and objectivity.” Quickly and easily disposing of the comparison to other white collar frauds, it was noted that the top of the line fraudsters received sentences in the 25 year range, but that their offenses were petty in contrast to Bernie’s based on loss, scope, duration and impact. This comes as little surprise, given how exposed Sorkin’s argument was (based on an in-house “average” of fraud sentences) to being ripped apart.

The government’s response to the mitigation argument is more interesting. Whereas Bernie’s claim was the he ultimately came forward, albeit to his sons (who he claimed he knew would immediately run to the government and rat out their father), on his own accord, the answer is that he did so, after more than a generation of running the scheme, only because the collapse of the scheme was imminent and, within days, would be exposed when he lacked the wherewithal to pay out the withdrawals. In other words, Bernie kinda came clean only when he realized that the game was over.

But there’s another tidbit that further undermines Bernie’s claim to a change of heart.

Specifically, Madoff made plans to distribute to employees, family and close associates the remaining cash that BLMIS had on hand; in fact, $173 million in signed checks were found in his office’s desk drawer.

To the bitter end, according to the government, Bernie was trying to suck the last few pennies out of the scheme. The government alleges that had the FBI not arrested Bernie when it did, these funds too would have been gone.

In its analysis of the criteria of §3553(a), the government’s emphasis is clearly on general deterrence. If nothing else comes of Bernie’s crimes, at least the rest of the investment world should see that such massive theft will result in massive punishment. The other factors, per the government’s reckoning, militate against any leniency toward Madoff, noting that the trail of victims, from elderly individuals to pensions, trusts and charitable organizations, will continue to cause harm for generations. The government dismisses any concern for Madoff, and focuses instead on how this case should serve to prevent anyone else from doing similar harm.

The question posed shortly after this case broke was whether the amount of loss was a meaningful metric for the determination of a sentence for Bernard Madoff. After all, this case showed that the same crimes, committed by someone who was simply better at the scheme than others and had far more money available to steal, could ultimately reach stratospheric numbers. Should sentence proportionality be based on the cash value of the loss, as the Sentencing Guidelines assume, as the correct measure of a sentence? If he stole 20 times as much as the next guy, should his sentence be 20 times greater?

The prosecution’s argument, which relies ultimately on the Guidelines to frame its request for 150 years in prison, only because life imprisonment (as the Guidelines would “advise”) is not available under the statutory maximum term for any of the offense to which Madoff pleaded guilty, goes far beyond mere dollar figures. The government makes a very persuasive case for the human side of the loss calculations, that the elderly individuals, pension funds, trusts and charitable organizations represent a flow of harm that will ripple through families, businesses and society. Forget about the dollar amounts and consider just the people. No matter how you cut it, the effect is huge, devastating and perpetual.

As for Bernie, there’s little room for sympathy for the devil. What’s laid bare in the government’s memo is how he made decisions, cut checks and ate caviar (at least metaphorically) for decades that reflected a depth of amorality of shocking proportions. It wasn’t simply that Bernie seemed not to be bothered much by his committing crime after crime, day after day, for so very long, but that he was never touched at all by the damage he was doing to so many others in the process.

Think of it this way: Had Madoff stolen only from the rich, but taken the funds of the Elie Weisel Foundation ($10,680,922) and preserved and invested them, lawfully and properly, he might have had some claim to a limited moral compass. But he didn’t. He took without regard to anyone or anything. He simply took. Even the myth of John Dillinger reflected a heart, when he returned cash to a customer saying that he only stole from banks. Dillinger makes Bernie Madoff look evil.

Come June 29th, Southern District Judge Denny Chin will be put to the test of having to answer one of the most difficult sentencing questions posed, what to do with Bernie. We’ve gotten Ike Sorkin’s take, and now the government’s take. This means, of course, that you’re probably asking yourself, “so what’s Greenfield’s take?” Read on, Garth.

Savanna Redding: Almost a Victory. Almost. (Update)

Following the rather strange, borderline bizarre, comments made during oral argument, the odds seemed stacked against Savanna Redding. Despite a set of facts that strained rational acceptance, from its outset on its path to the Supreme Court, it appeared as if blind deference to school officials, no matter how patently offensive and intrusive and disgusting their decision, would win the day.

The good news is that it didn’t. Justice Souter, writing for an 8 to 1 majority (with Clarence Thomas dissenting), held that school administrators went over the line when they strip-searched Savanna.

Its indignity does not outlaw the search, but it does implicate the rule that “the search [be] ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ ” T. L. O., supra, at 341. Here, the content of the suspicion failed to match the degree of intrusion. Because Wilson knew that the pills were common pain relievers, he must have known of their nature and limited threat and had no reason to suspect that large amounts were being passed around or that individual students had great quantities. Nor could he have suspected that Savana was hiding common painkillers in her underwear.When suspected facts must support the categorically extreme intrusiveness of a search down to an adolescent’s body, petitioners’ general belief that students hide contraband in their clothing falls short; a reasonable search that extensive calls for suspicion that it will succeed.

And so this means that school administrators should stop forcing teenage girls to bare their genitalia on demand? No. It doesn’t say that. Rather, the best Souter can come up with is that it was unreasonable under the particular facts of this case. Your daughter’s mileage may vary.

David Bernstein at Volokh was the first to express his disdain for this tepid decision in a post aptly entitled “I’ll say it if Justice Souter Won’t.”

Justice Souter, writing for the Court, stated that the majority meant to cast “no ill reflection” on the school official, assistant principal Kerry Wilson, who ordered the search. Well, it should have. The combination of drug hysteria and the tyranny of petty government officials is rarely a pretty sight.

It’s become increasingly difficult to determine whether the effort to avoid offense is what makes these decisions, even when they ultimately come out on the right side, so distasteful. Would it kill them to be honest? Would it destroy the fabric of society to proclaim an assistant principal disgraceful for his rush to strip search a 13 year old girl for anything short of weapon of mass destruction?

And if you thought Souter’s luke-warm, apologist critique of this conduct fell short of the mark, consider Justice Thomas’ dissent:

The majority imposes a vague and amorphous standard on school administrators. It also grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge. This deep intrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis under which “the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order.”

In other words, Thomas would allow petty tyrants to do as they please, holding that courts have no business “second-guessing” their actions. Did anyone mention to Clarence Thomas that “second-guessing” the actions of government officials is one of the primary reasons we have courts?

While I appreciate Bernstein’s ridicule of Souter’s opinion as much as the next guy, it falls far short of the mark as far as I’m concerned. It’s not that I disagree with the two points raised, but that this failure runs far deeper than its lack of recognition of drug hysteria and the tyranny of school administrators. I’ve certainly done my share of complaining about both.

The decision stands for the court’s willfully turning a blind eye to the rights of everyone, students included, to fundamental personal security from those who feel empowered to decide when, how or if we are to be subject to the compulsion of government force. Whether it’s a 13 year old girl being forced to comply with the orders of an assistant principal, or a 50 year old man being forced to comply with the orders of a beat cop, it doesn’t matter. Whether it’s a search for ibuprofen, heroin or a switchblade, it doesn’t matter. There is a reason why our Constitution requires those people who believe themselves empowered by the might of the government to compel people to comply with their orders to present their views to a neutral magistrate first, before simply doing as they please.

This decision merely side-steps this fundamental problem. By parsing the details, in a particularly egregious case, the Court has managed to eke out the right outcome, but for the wrong reasons. Ironically, this is where Clarence Thomas gets it right. The majority, in its effort to be mushy and apologetic, does impose a “vague and amorphous standard.” A “reasonableness” standard offers no direction, and a reasonableness standard left to the discretion of the very people least inclined to be capable of being reasonable is absurd. Is Souter suggesting that Kerry Wilson, the same assistant principal that he simultaneously exculpates with his “no ill reflection” comment, was an unreasonable person? It must be so, as he concluded that Wilson’s decision to strip search Savanna was unreasonable, and hence Wilson’s judgment can’t be trusted. Yet the decision leaves it up to the Wilson’s of the world to decide what is reasonable?

Given that I had serious doubts that the Supreme Court reach the right outcome, I must say that it’s gratifying to know that eight of our nine top jurists think it’s wrong to strip search a 13 year old girl in a witch hunt for advil. That will be relief to fathers across the nation. But I can’t help but wonder what the next excuse for strip searching a 13 year old will be.

To add insult to injury, of course, the Court also held that the administrators can’t be held liable for damages, since “clearly established law” failed to show that this conduct violated the fourth amendment. In the eyes of a 7-2 majority (Stevens and Ginsburg dissenting), this wasn’t sufficiently outrageous that one would expect the assistant principal and his posse to know that you don’t strip search a 13 year old in search of ibuprofen. Perhaps the justices are awaiting the anal penetration of a kindergartner before reaching the true measure of outrageous governmental conduct?

Sorry, but despite the outcome on the primary issue, this is a monumentally disappointing decision.

Update: Scott at Grits for Breakfast has posted about the case (as have many others, of course), but posed an interesting question:

A commenter over at Sentencing Law & Policy wondered, “Is the message that the 4th Amendment is a facts and circumstances question, rather than a clean cut set of doctrines?” IMO that’s exactly the message, and it’s the same one the court’s been sending on the Fourth Amendment for the last 25 years or so.

I believe that what this means is that the court is producing and encouraging result-oriented law, and to that extent I don’t think there’s much to dispute in this case. But the problem is that 4th Amendment law has tended to be limited to either the creation of ever-increasing exceptions or, when the rare defense decision comes in, it’s a fact-bound decision that precludes easy doctrinal adaptation. In other words, it’s either a fact-specific decision or it’s a pro-police decision. Some message, bad or worse.

How Long Before The Plug Gets Pulled?

I have to wonder what went through Edward Trujillo’s mind as his lawyer dozed during his trial. Did he think to give his lawyer a nudge? Did he think that he should have hired a lawyer rather than go 18b? Did he think that he was better off letting his lawyer sleep?

Brooklyn Supreme Court Justice Vincent Del Giudice vacated Trujillo’s conviction after trial for third degree weapons possession based on ineffective assistance of counsel in People v. Irazarry. On its surface, the decision might be taken as a funny one, comparing New York criminal defense lawyers in low degree felonies with the sleeping lawyers in Texas capital cases.

The lawyer involved, whose name was omitted by Justice Del Giudice but was identified in this Law.com post, Michael Harrison, challenged Trujillo’s allegations of ineffective assistance.

Reached by phone Wednesday, Harrison called his opening statement “very logical and precise.” As for the laughing jurors, he said, “Well, laughter’s very good when you’re looking at many years in prison.” Regarding the allegation that he slept throughout the trial, he added, “That sounds very relaxing.”

Harrison added that “just about everything” alleged in the decision was untrue, and that he intended to “take [the matter] up with the judiciary grievance committee.”

Clearly, Harrison is dismissive of the of claims, which is an interesting approach subsequent to a decision granting a motion to vacate alleging that he not only slept and read a fitness magazine during trial, but that his opening statement and cross-examination was so bad that the jurors laughed at him. Not with him, but at him.

But this isn’t a funny decision. Not for Harrison. Not for Trujillo. Not for the rest of us either. Justice Del Giudice found:

It is very unusual for this court to criticize a member of the bar and I am hesitant to do so in this opinion. This is a learned profession and I appreciate and enjoy watching members of the bar perform their craft. However, during this trial, I found myself very uncomfortable whenever defendant Trujillo’s counsel addressed either a witness or the jury. It was impossible to predict what he was going to say. Based upon all of the foregoing, I conclude that this defendant did not receive the minimum level of representation that is required by law.

It’s unlikely that the judge realized the gravamen of this statement, but it’s quite clear to me. Justice Del Giudice admits that as he sat there, putatively presiding over a criminal trial in Brooklyn Supreme, he observed a lawyer before him whose conduct failed to meet the minimum level of representation required under New York law. And he did nothing.

In New York, ineffective assistance of counsel isn’t based on Strickland v. Washington, as it is under federal law, but rather People v. Baldi. It requires that counsel provide “meaningful representation,” without requiring the prejudice prong of Strickland. If the attorney’s choices can be attributed to some strategic purpose, even though it failed to achieve success, then the lawyer wasn’t ineffective. But it need not be judged by resulting prejudice. This means that a trial judge need not wait for the jury to convict to determined that counsel has been ineffective.

Del Giudice confirmed that he witnessed much of what Trujillo alleged.

“At one point during the trial, this court stopped the proceedings and required all parties to engage in a side bar, because I observed [Harrison] apparently sleeping at the counsel table. The court asked counsel, at side bar, if he was feeling well and if he needed a break to eat or drink,” the judge wrote.

He added, “[Harrison] did, indeed, give a bizarre opening statement. The beginning … was so off topic and irrelevant that this court was compelled to stop counsel and direct that he address what he intended to prove during the course of the trial. The jury was, in fact, laughing during counsel’s opening statement and such laughter at a member of the bar created an unprofessional atmosphere.”

The judge also stated that although he did not witness Harrison reading magazines while witnesses were being examined, he did see him drop one.

At what point does the judge, whose responsibility includes assuring that the defendant is afforded his constitutional rights, including the right to counsel at trial, decide that it’s time to do something? Whats striking here is that the judge concedes that he saw the train wreck coming, and he did nothing. He saw it happen, and he did nothing. He saw the aftermath, and still he did nothing. Not until new counsel was appointed and moved to vacate did the court figure out that it has a role to play in this trial.

I don’t know Michael Harrison, who “[b]y his own count, he has taken more than 600 trials to verdict.” Let me say that I am skeptical of this claim, in the extreme. But even if he’s tried 100 cases to verdict, still quite a lot, it does nothing to counterbalance what happened in the trial of Edward Trujillo, who was as entitled to competent counsel as any other defendant.

The judge’s expressed reluctance to “criticize” a member of the bar reflects misguided priorities. His job was to give the defendant a fair trial, where all constitutional rights were fully afforded. His job is not to cover for a fellow lawyer, or even sit back and enjoy the show. There’s nothing funny about this.

500 Comments Later

Personal to my spammer “Nick”.

Nick,

You worked hard again last night. It’s not easy posting 500 spam comments. I would have thought that you would have learned that your efforts would come to naught the last time you did it. Yes, I was forced to waste my time deleting all of them, but I do what’s necessary. Your posting another 500 comments last night must have been tedious and monotonous. It must have taken a very long time. I admire your persistence and perseverence.

But I still deleted all of them. Every one. Even if I hadn’t, your comments would never see the light of day. I realize that you’re just trying to do your job. I realize you’re just trying to make a living. But it won’t happen here. If you can’t find a position that provides something more societally useful, then at least spend your time at a blog that will tolerate your efforts more. If you post another 500 comments, I will delete them again. And if need be, again. You will not make any money here. Sorry.

Yours,

Scott

The Old Guard’s Last Stand

Robert Morgenthau, the august District Attorney of the County of New York, has one last thing to do before he takes leave of his office at the age of 89 years: make sure that Leslie Crocker Snyder never sits in his chair.

Later today, Morgy will endorse his former assistant district attorney, Cy Vance, Jr. Caroline Kennedy threw a party for him this week. Leslie wasn’t invited. According to New York Magazine, Morgy’s official position is that he’s offended by Leslie Crocker Snyder’s claim to fame, her outrageously harsh, loud pro-prosecution stance while serving as an Acting Supreme Court Justice.

She’s living in the past,” Morgenthau, who turns 90 next month, says. That past was Manhattan’s crack-and-murder years: a time when Morgenthau wanted his overload of violent cases argued in Snyder’s courtroom, a period she detailed in her memoir, a tell-all of the death threats against her and the exploits of gangs like the Jheri Curls.

Morgenthau doesn’t care for the book, starting with its title.

Twenty-five to Life?” he says, his face in full pucker mode.

Having been one of the twelve people to read the book, I can attest to the fact that it sucked. Rarely has a judge proclaimed her impropriety on the bench as proudly as Leslie. In fact, the only other book to come close was Harold “The Prince of Darkness” Rothwax’s “Guilty”, a paean to psychopathy.

But that’s just Morgy’s public stance. The fact is, his office enjoyed the benefit of Leslie’s harshness many times, steering the most difficult cases to her courtroom any way they could, knowing full well that they would find no more loving ear than Leslie’s. There was no better way to guarantee a conviction in the spottiest of prosecutions than to make sure it went straight to Part 72.

Four years ago, Leslie Crocker Snyder took a calculated risk. She wasn’t getting any younger, and Morgenthau showed no sign of realizing that he was indeed getting older. She felt like the paid her dues, and if her mentor wasn’t going to hand her the crown, she would snatch it. This violates the first rule of royalty: kill the king.

But the root of Morgenthau’s problem with Snyder is her impertinence. Four years ago, Snyder challenged Morgenthau in a Democratic primary, his first serious fight in twenty years. One central tenet of her campaign was that Morgenthau was too old. “He’s the district attorney of the past, and I’m the district attorney of the future,” she said. Morgenthau won handily—but that was the easy part. The hard part was to ensure that, once he left the job, Snyder couldn’t step in to take it.

Having lost, Leslie was faced with Morgenthau’s wrath. Now, she can never be District Attorney. Not that he ever actually wanted her to succeed him, but he would likely have not felt so strongly that it was his duty to make sure that she never, never, wins the office. Once Leslie challenged him, however, this became his mission. She must not win.

I’ve enjoyed watching Leslie reinvent herself over the past few years. The new, kinder, gentler, less patently offensive Leslie Crocker Snyder has enjoyed epiphany after epiphany. Suddenly, she’s against the death penalty, whereas before she would beg to pull the switch. Suddenly, empathy toward drug defendants and their needs supplants her rants that they are the scourge of society and deserve life plus cancer. Suddenly, she is all about fairness. How she would know what fairness means is beyond me. I’ve certainly never seen any evidence of it in her before.

Isn’t it amazing how running for office and epiphanies go hand in hand?

Despite the emergence of the new Leslie Crocker Snyder, there is one thing she can never be. Old guard. Morgenthau is the last of the Old Guard in Manhattan, from the families of wealth and breeding whose sons turned to public service as demanded by noblesse oblige. The Office of the District Attorney of New York County is the last bastion, the place where duty trumps all else. It’s not for the social climber or the self-aggrandizer. There are other, lesser offices for people of that ilk. Let the nouveau riche take the flashier positions they so crave; leave DANY to those who were bred to the post.

There is only one potential candidate who is suitable today. Cyrus Vance, Junior.

Of course, Leslie has something that Cy Vance doesn’t, quite marketable in today’s political arena. She’s a woman. That detail alone is likely to play a huge role in the election. On top of that, Leslie will likely have the support of the police unions, given that she has single-handedly brought vast overtime wealth to more cops than any other human being. No cop has had a better friend than Leslie.

And finally, nobody wants the job more than Leslie Crocker Snyder. And nobody wants to stop her from getting it more than Robert Morgenthau. This should be interesting.

H/T Former Kings County ADA under Eugene “The Child Molster” Gold, Andrew Lavoott Bluestone.

Pro Se Meets Confrontation

There are few crimes that evoke the degree of anguish in a trial witness than rape, where the victim, assuming the witness to have indeed been a victim, must relive the experience with the eyes of the accused upon her. This was how the “victim” felt as she was questioned by the prosecutor, according to the Seattle Post Intelligencer.

[Senior Deputy Prosecutor Julie] Kays gently questioned the woman about that night, subtly blocking [defendant Sankarandi] Skanda’s line of sight to the witness box. Skanda was left to shift in his seat, trying to reacquire a view of his alleged victim.

But there is no trial more susceptible to wrongful conviction than the single eyewitness sexual assault, Whether due to fabricated accusations or mistaken identification, rapes are particularly suspect. But the efforts of the prosecutrix to block the defendant from being able to look into the eyes of his accuser were pointless.

Skanda, whose name was Frank Antill until he converted to Hinduism while serving a stretch in Idaho for a “similar assault,” was going to get his chance to look his accuser square in the face. He was pro se.

A self-described “religious doctor” who was attempting to found an Ecstasy-fueled “Temple of Love” when he was arrested, Skanda, 36, contends he and the woman had a long-running affair and had been propositioned by her to kill her husband. Three weeks into his trial, Skanda has offered scant evidence to support his claim, which prosecutors contend is entirely baseless.

Not surprisingly, the religious use of ecstasy does not tend to enhance one’s advocacy skills. It apparently didn’t do much for Skanda.

When given an opportunity to question his alleged victim, Skanda quickly violated pre-trial orders against raising certain unsupported allegations against the woman and her husband. Skanda had previously violated those restrictions in opening statements, but — to the consternation of prosecutors — had not received a contempt citation from King County Superior Court Judge Douglass A. North.

The limitations on the Skanda’s questioning are curious, given that they are characterized as “unsupported allegations.” As Skanda was the source of the allegations, and by his own accord the witness to his claims, they are every bit as supported as the allegations against him. Nutsy crazy, perhaps, but still supported. And if this fellow was sane enough to stand trial, and sane enough to represent himself, then why would his allegations be so unworthy of credit as to deny him his right to present his defense?

The prosecutrix was not amused by Skanda’s questioning of the victim, as one might well expect. If one believed the victim, as Julie Kays obviously did, then this trial was an outrage.

“This is the most offensive line of questioning I’ve heard in 10 years of practice,” said Kays, struggling to contain her disdain for Skanda and apparent anger over his failure to abide by North’s earlier orders.

“This is a court of law, not a court of terror for him, and I can’t help but believe he is getting off on terrorizing this woman again,” she added. “He is thumbing his nose at this process and he’s using it to terrorize this woman.”

While it may well be that having a rapist question a victim constitutes “terrorizing this woman,” the defendant was hardly thumbing his nose at the process. As unseemly as it may be to the prosecutrix, the defendant has both the right to confront witnesses against him and the right to represent himself. That is the process.

While it’s difficult not to feel for the witness, forced to take questions that impugn her credibility, dignity and sexual conduct, assuming that she was in fact raped at knife point by Skanda, this ugly and painful scene is precisely what’s demanded of a trial. Indeed, as long as they prosecution seeks to convict, and the defendant is deemed psychologically convictable, it would appear that the limitations placed by the judge on the pro se defendant are unjustifiable. He’s entitled to defend himself, and if he, as a person with actual knowledge, says it’s so, then he has a good faith basis to pursue a defense that involves attacking the purported victim based upon his rather bizarre claims.

Does it all sound too ridiculous and outrageous? Perhaps, but that’s the price of having a trial. Due process isn’t limited to situations where everybody feels happy and comfortable.

When Classrooms are Lined in Rubber

More often than not, parents are convinced that the secret to better education is higher pay for teachers. It’s never dawned on most that if you pay a lousy teacher more, you get a better paid lousy teacher. But perhaps this AP story, the confluence of some perverted version of due process and your tax dollars at work, will change a mind or two.

Hundreds of New York City public school teachers accused of offenses ranging from insubordination to sexual misconduct are being paid their full salaries to sit around all day playing Scrabble, surfing the Internet or just staring at the wall, if that’s what they want to do.
Because their union contract makes it extremely difficult to fire them, the teachers have been banished by the school system to its “rubber rooms” — off-campus office space where they wait months, even years, for their disciplinary hearings.

Yes, years. And they get paid for every minute of it. And benefits. In NYC, the cost is estimated at $65 million. That would be $65 million that people believe is being spent on the education of children.

One might think that if it was prudent to remove teachers from the classroom, the very least the NYC Board of Education might do is use them to perform some useful function. Grading papers perhaps, or reviewing textbooks. Granted they can’t scrape the lead paint off classroom walls, as they aren’t qualified and it would violate the paint scrapers’ union contract. But something. Nope. Scrabble is huge. You have to find some way to kill eight hours, day after day, month after month, year after year.

“No one wants teachers who don’t belong in the classroom. However, we cannot neglect the teachers’ rights to due process,” Davis said. The union represents more than 228,000 employees, including nearly 90,000 teachers.

The complaint from many of the rubber room teachers is that their “crime” is making enemies with someone in power, which certainly has the smell of truth given how things work in schools. Vindictive and retaliatory co-workers are not exactly unheard of in public service

Many teachers say they are being punished because they ran afoul of a vindictive boss or because they blew the whistle when somebody fudged test scores.
“The principal wants you out, you’re gone,” said Michael Thomas, a high school math teacher who has been in a reassignment center for 14 months after accusing an assistant principal of tinkering with test results.

Assuming the good intentions of both the City and the United Federation of Teachers, the question remains: Why should it take months and years, with teachers wasting away at full salary, to conduct a hearing to determine whether the teacher should be returned to the classroom, fired or otherwise disciplined?

Once their hearings are over, they are either sent back to the classroom or fired. But because their cases are heard by 23 arbitrators who work only five days a month, stints of two or three years in a rubber room are common, and some teachers have been there for five or six.

Do the math, guys. If it costs you $65 million to have the teachers sit there, and you have only 23 arbs working five days a month, what about taking, oh, say $10 million from the cost of teacher dead time, put it into 100 more arbs working full time, and cut the length of wasted time down by, oh, say 80%, with a net savings of $42 million?

And we entrust these people with our children.

H/T Kathleen Casey, our hinterlands correspondent

Madoff’s Turn

Having heard what the victims had to say, Dickstein Shapiro’s Ike Sorkin has now laid out Bernie Madoff’s argument for sentence. In an 11 page sentencing letter, Sorkin makes his pitch:

We seek neither mercy nor sympathy. Respectfully, we seek the justice and objectivity that have been — and we hope always will be — the bedrock of our criminal justice system.

Awkward. Not that it doesn’t use nice sounding words, but that Sorkin starts out with the same argument that could well be used by the government in seeking an assurance that Bernie never breathes free air again. That’s one of the fundamental problems in using the broad brush “truth and justice” rhetoric that some advocate. They are merely matters of perspective, and are just as easily argued in favor of severity and leniency.

Sorkin then seeks to undermine the impact of the victims.

Both [Madoff] and his counsel acknowledge the scope and magnitude of those losses and understand the victims’ calls for reprisal . . . Nevertheless, we believe that the unified tone of the victim statements suggests a desire for a type of mob vengeance that, if countenanced here, would negate and render meaningless the role of the Court.

Clearly, Sorkin sought to diminish the emotional appeal of the victims’ letters and emails, but I’ve got no idea what he’s trying to suggest by arguing that if Judge Denny Chin considers the pleas of the victims, it would “negate and render meaningless” his role as judge. It seems to mean that Judge Chin shouldn’t rubber stamp the victims demands for blood, but does Sorkin really contend that Judge Chin abdicate his duty and let the victims dictate sentence?

That’s rather insulting to the judge, and certainly not to be expected of Judge Chin, who is fully capable of reading the victims’ letters, giving them appropriate weight and fulfilling his responsibility independently. Moreover, while the victims’ letter share a sense of anger and outrage, they do not smack of mob vengeance, but of many, many victims, all of whom suffered greatly at the hands of the defendant. While it’s appropriate for Sorkin to address them, this smacks of an effort to trivialize the impact on the victims, almost ridicule their pleas for justice (see how that word comes up again?). It’s a bit unseemly to attack the victims.

Finally, Sorkin comes to the part where he offers some mitigation in favor of the defendant, a critical argument for sentencing purposes.

Affording due consideration to Mr. Madoff’s voluntary surrender, full acceptance of responsibility, meaningful cooperation efforts and in light of the non-violent nature of the offense, Mr. Madoff should be sentenced to a term of years short of effective life imprisonment. Mr. Madoff is currently 71 years old and has an approximate life expectancy of 13 years. A prison term of 12 years — just short of an effective life sentence — will sufficiently address the goals of deterrence, protecting the public, and promoting respect for the law without being “greater than necessary” to achieve them.

After all the speculation about what Bernie Madoff had up his sleeve when he copped an open plea, we now have the answer. Not much. There’s no neat trick involved, no twist of the guidelines or legal ploy. The strategy was nothing more than making the best possible lemonade out of 50 billion lemons.

This is Madoff’s primary sentencing position, no doubt offered with little expectation that it will capture the judge’s sensibilities under §3553(a). The argument is to sentence Madoff to life minus 1 year, his best case scenario. The life part is based on actuarial life expectancy, not a guarantee that he will die in 13 years. It might be more persuasive if Sorkin could offer the court an assurance, because 83 years of age might well be his actuarial life expectancy but we all know that Bernie could have plenty of good years after that.

The real reason for this argument is to set up the “fallback” position:

Alternatively, we respectfully submit that a 15 to 20 year prison term will effectively achieve the stated goals of §3553(a) without disproportionately punishing Mr. Madoff. Indeed, such a range will appropriately eliminate concerns for disparate treatment among similarly situated non-violent offenders.

The primary and secondary positions are facially inconsistent, which Sorkin obviously knows, as will Judge Chin. If the former satisfies §3553(a), then the latter must by definition be excessive. But the argument for a 12 year sentence is made for rejection, to make the more harsh, 15 to 20 year sentence, more palatable. Sorkin recognizes that whatever sentence he requests, it will be deemed far too lenient by the victims and likely the public, and Judge Chin will realize that the general deterrent purpose of sentence will not be satisfied by an overwhelming public reaction that Madoff got away with “murder”. This sentence is all about general deterrence.

For this reason, Sorkin has put in some effort to establish the average range of sentences imposed on large scale fraud defendants.

Significantly, for fraud-related cases between 1999 and 2008 in which a defendant was assigned a guideline range of life imprisonment, did not receive a downward departure pursuant to Sentencing Guidelines §5k1.1, and plead guilty, the average sentence imposed was 184 months, or approximately 15.3 years. . . . Because the majority of these cases involved loss figures in excess of $400,000,000 — as does Mr. Madoff’s case — we respectfully urge this Court to impose a sentence on Mr. Madoff that reflects a just degree of proportionality.

This is a rather tricky statement in many respects. Initially, the sentencing structure under the guidelines changed dramatically in 2003 in response to the perceived lenient guidelines sentences for massive frauds in such cases as Enron’s Jeffrey Skilling and Worldcom’s Bernie Ebbers. If one was to change the equation by limiting the statistics to frauds over $400,000,000 post 2003, it might reveal a very different picture. And, of course, $400 million is the maximum amount under the fraud table of the guidelines. It must have seemed like a lot of loss at the time, but that was before Madoff’s case. Who knew that the guidelines needed to go well into the billions?

But this Bloomberg story makes the point quite clearly:

Ebbers is serving 25 years in prison and Rigas 12. Ex-Enron Corp. Chief Executive Officer Jeffrey Skilling was sentenced to 24 years. A federal appeals court has ordered that he be resentenced.

Bernie Madoff isn’t your average white collar fraudster. He was always better before, and he’s still better. He wins the prize for the greatest loss ever, no matter how hard Sorkin seeks to reduce his client to merely the “mean”. As he pleads for proportionality, it’s this very concept that makes his argument collapse around him. Proportionality demands that the sentence imposed on Madoff dwarf those imposed on the closest comparables by the magnitude of the loss he caused. It’s hard to ignore the fact that no one, but no one, caused as much loss as Bernie.

It’s unlikely Madoff will receive the requested sentence, Anthony Sabino, a business-law professor at St. John’s University in New York, said today in an interview. Sorkin advanced the best arguments he could, Sabino said.

This is a peculiar statement, and one with which I am not inclined to agree. It’s not that Ike Sorkin did a lousy job of it, but the arguments on behalf of Madoff are, given the financial resources he had available, relatively tepid. Maybe the thought was that there really wasn’t anything particularly effective that could be said, since this isn’t exactly a case that’s flying under the radar and everyone has a thought on the subject.

But if that was the theory, then perhaps Sorkin should have gone for broke. After all, that’s how Madoff left his victims.

Kindle DX: An Opposing View

There is sudden flurry of interest around the blawgosphere about something called the Kindle DX. Ken at Popehat cuts to the chase:

I’ve had 24 hours with the Kindle DX now, so time for some first impressions.

Short answer: it’s just great.

Mike at Crime & Federalism was much longer winded:

The .pdf feature is what sold me on the DX rather than the Kindle 2. The DX is larger, though. With the Kindle 2, you must convert .pdf files. Not everyone has had good luck with the conversion. Most of my day is spent reading trial transcripts. It’d be nice to take my “office” to the dog park. Looks like that will be much easier with the DX. I can probably justify it as a tax write off, too.

Gushing? Oozing love? Well, now it’s time for Scott at Simple Justice to chime in.

Are you guys nuts? Is there nothing new and shiny that you boys won’t buy?

Back in the olden days, we have a telephone, for which we paid rather dearly on a monthly basis. We were always careful about who we called, and how far away they were. this was because the charge varied by calling area, some inexplicable concept that made the cost entirely different based upon how many miles the sound had to travel. It was like the call passed through itty bitty telephone toll booths on the way to the recipient of the call. Dial the wrong number and you could have a heart attack when the bill came.

But at least television was free. All 7 channels, though three of them really weren’t worth much except on Sunday mornings, when the only show on was Davey and Goliath. It was horrible, but it’s not like there was a plan B. We managed.

Time has changed everything. We now have cell phones, internet, cable television and all the various permutations and inter-relations thereof. The price of a long distance call no longer matters, but then Ma Bell gave us the phone. Today, it’s not just the cost of our monthly basic necessities, but the newest, coolest must-have hardware that makes life worth living.

I’m perplexed. I don’t understand how young people can afford their toys. They still have to eat, put a roof over their heads, wear clothing and get places. Then there are student loans. All these things cost money, and from what I can tell, a fairly good amount of it. But that’s just the beginning. I see crackberries and iPhones everywhere. And they aren’t those old, yucky iPhones from last month, but new, shiny iPhones that make their owner more virile.

Granted, the trend toward moving into their parent’s basement may alleviate some of the financial strain, though the notion that they would happily live in mommy’s house so that they can afford a shiny toy and all the waves necessary to juice it up, flies in the face of my priorities.

I’m not a total Luddite. I’ve got a cellphone, though it doesn’t have a keyboard of any sort and I only turn it on to make outgoing calls. My plan is the same as the one I started with, although the cellphone company has increased my minutes from 30 to 100 without raising my fee. I’ve never come close to using them all up, and wish they would roll over.

The cable company has tried to force me to use a converter box. And if I needed their remote control, why do the television makers include one in the box? I’m not that easily fooled. The same with this HD nonsense. I’ve seen a show on regular TV and HDTV, and it looks exactly the same to me. Of course, I don’t have HD eyes anymore.

And now Kindle. I take it that you guys must be so well-heeled that you can’t possibly come up with ways to squander the vast wealth you’ve accumulated, because you now need to purchase a device that costs almost $500 on Amazon to, get this, read a book. No, you still have to buy the book, but now you also have to buy the machine on which to read the book. And buy it again when the next generation comes out, the Kindle DXX 3.2. It’s the one that comes in colors with a sparkly exterior.

You do realize that eventually, someone is going to come up with Kindle Green, eerily reminiscent of what your grandparents used to call “a book.”

Atop the Fence

Via Skelly at Arbitrary & Capricious, a young PD blogging at Sloth Bear Diaries posts about the types of defendants who annoy him. For anyone who’s practiced criminal defense for more than 12 minutes, the descriptions will be familiar and bring a knowing smile to your face. There are some other “types” left off the list, the defendant who believes lawyers can see into the future, for example, or the defendant who thinks we have some magic way to make their case go away, but we save it for “special” defendants.

One type on the list doesn’t fall into the annoying category for me, but rather the disturbing. This type is all too common, and impairs my ability to provide the best possible defense. For me, that’s the most problematic defendant.

The Fence Sitter – This guy doesn’t want to go to trial. But he doesn’t want to plea either. In fact there is no course of action that he wants to take. He just wants to stare at the case and think eventually it will go away. He’s terrified of having his day in court, but doesn’t want to admit fault either. Please try not to be this guy. Make a decision!!!

In white collar defense, this is unfortunately an extremely common attitude amongst defendant. Ironically, these are defendants who are often masters of their own industry and fate, capable of making difficult decisions in the course of their business without blinking. Yet when it comes to their defense, they are paralyzed.

The problem derives from the confluence of three factors: They are psychologically ill-equipped to come to grips with the fact that they are the target of a criminal prosecution. These defendants can’t perceive themselves as criminals, and they immediately resort to denial, whether of their conduct or their circumstance. They are indignant. They are outraged at their treatment. They refuse to face the fact that they are, indeed, a criminal defendant.

The second factor is the refusal to accept the proposition that there are, at the outset of a criminal defense, only two options. They can fight or they can acquiesce, whether by plea or cooperation. They demand a third option, usually involving an apology from the prosecutor and a tropical vacation. When informed that there is no third option, the immediate reaction is that they obviously need a better lawyer.

The final factor is that they expect to get what they paid for, meaning that they view the lawyer as a plumber who guarantees that, when he’s done, the pipes won’t leak. These defendants tend to be regular consumers of services, and expect their service providers to meet expectations. When told the truth, that lawyers provide time, experience, intelligence and effort, but not a guaranteed outcome, they are not satisfied. They make demands, and they are used to making demands. They have no interest in paying for ambiguity.

Like most people whose knowledge of the criminal justice system is limited to the nonsense they see on TV or read in the New York Times Magazine, they do not believe in trials. They are convinced that the fix is in, that no one wins at trial. They instruct you on Day 1 that they are not going to trial. No trial, period. You explain to them that this is a perfectly fine choice, provided that they understand that this leaves only two options, cooperate or plead guilty. This is when they look at you like you’re nuts. They announce that they’ve apparently retained the singular stupidest lawyer on the face of the earth, who is unaware of the only viable option in their case: Explain to the prosecution that this is all a big mistake, so that everyone can have a good laugh about it, shake hands and go home. Duh.

The defendant, upon hearing the word “cooperation”, immediately lights up. This is their opportunity to explain to the prosecution the error of its ways, how it’s misunderstood and misinterpret perfectly innocent and understandable conduct that some ignorant agent has mistakenly cast as impropriety. If their stupid lawyer can’t manage to explain this adequately, then they will be forced to do so, they inform you. Of course, being good and lawful citizens, they like the sound of the word “cooperation”, as it puts them on the same team as the good guys, the government. They want to be on the good guys team. They are good guys.

This is a particularly dangerous point in the discussion, as the client in denial thinks that he can waltz into a proffer session, explain his innocence, and put this whole silly misadventure to rest. After explaining what a 1001 violation is, the concept of confession is raised. As with the attempted exculpatory statement upon arrest, this is the most likely way to seal one’s fate and destroy any possibility of a viable defense. No matter what “harmless” statements the defendants believes will come out, you can be assured that someone will ask a question that will either require a deceitful response or admit criminal conduct. Either way, the defendant isn’t walking out with an apology and a friendly slap on the back.

The root of the problem is that white collar defendants, unlike good, solid criminals, reject the idea that anyone could seriously believe that they have committed a crime, no matter what the evidence may be against them. Without a full recognition of the harsh reality that they are criminal defendants, every bit as much a defendant as the drug dealer or the batterer, they cannot begin to mount a viable defense. They cannot come to grips with the fact that they are now embroiled in that horrendously unfair system that they vigorously supported throughout their careers. They are now on the other side of the fence, and they refuse to accept it.

For some, the ones who have skirted the edges of the law if not trampled it with reckless abandon, their disgruntlement is a matter of foolish bravado. Yes, you were a master of the universe, but now you’re a defendant. You need to deal with it. For others, whose conduct or intent was innocent and who have done no wrong, welcome to the crazy world of the prosecuted, where even innocent people are accused of crimes. No, it isn’t fair or just, but it’s still your reality and you still need to deal with it.

Fence sitting is the result of a disconnect with reality. Some people just need a grieving period, a time to adjust to the fact that their lives will never be the same now that they’ve become enmeshed in a system that isn’t nearly as perfect as they want to believe. Some people never regain their grasp of reality following their arrest. None are necessarily bad people. Most are quite likable under other circumstances, the kind of folks that you would happily chat with at cocktail parties. But when your relationship is one of attorney and client, the nature of your relationship is entirely different, and your responsibility is to make clear what they are facing on either side of the fence.

It’s not our choice which side of the fence a client ultimately chooses. But there is little we can do while the defendant remains on the fence. And the longer they sit there, the more opportunities are lost. Yes, we understand how difficult it is for you. That’s why we want you to get off the fence so that we can help.