First, the scorecard, because you need to know the players.  For the United States Attorney, Southern District of New York, there’s Marc Litt and Lisa Baroni, who are charged with the Bernie Madoff case and its penumbras.  For the defendant, Frank DiPascali, Bernie’s number 2 man in charge of covering the flank, there’s Marc Mukasey.  If the name sounds vaguely familiar, he’s the son of former federal judge and Attorney General, Michael Mukasey.  And the Judge is Richard Sullivan, former assistant in the Southern District, where he was Marc Mukasey’s supervisor, and appointed in 2007 by President George W. Bush to take Michael Mukasey’s seat.

Whew.  So you think that DiPascali could have gotten a lawyer who was in any deeper?

And still, he sits in jail.  From the WSJ Law Blog :

Judge Sullivan isn’t AUSA Sullivan.  Marc Mukasey may be winking his heart out, but Judge Sullivan isn’t winking back.  For those of us who remember Richard Sullivan as one tough AUSA, disinclined toward empathy as has become the fashionable way of saying that a judge isn’t downright cold, he hasn’t warmed up much on the bench.  Even toward old friends.

When a defendant flips, and the government and defense sign Kumbaya in a rousing two-part harmony, judges tend to keep their fingers far away from the messy details, leaving it to the government to decide whether the defendant will be more useful on the outside than in. 

From the judge’s perspective, the issue is flight, since a defendant in the wind is a blot on the judge’s record, a sign of mistaken judgment.  In case of this magnitude, with so many victims (not to mention the media) watching closely, and nerves still very raw, the risk of DiPascali using some of this hidden billions to carry him over the tough times in some exotic locale isn’t one Judge Sullivan is prepared to take.  At least not without more nasty details.

Would it be more convincing if DiPascali signed the PRB in blood?  Not for Judge Sullivan.

Mukasey, who worked under Sullivan when both were federal prosecutors in Manhattan, said his client was hoping for a “Hurculean [sic] downward departure” from the judge at sentencing, based on his cooperation.

There’s the deal-maker.  If DiPascali has provided such great cooperation that he’s likely to get a “Hurculean downward departure,” meaning that his sentence won’t be reduced from 150 years to, oh, say 127, but rather 36 months, then he’s got a reason to stick around. 

But Judge Sullivan is creating a bit of a problem for himself by asking for the details and hinging his decision on the extent of DiPascali’s cooperation.  On the one hand, if he cuts the defendant loose, he’s effectively pre-announcing sentence prior to the defendant’s having fulfilled his cooperation to the government.  The judge is going to be in quite a squeeze later when the actual sentencing comes around, having tied his own hands with this bond ruling.

On the other hand, should he refuse to allow DiPascali out on bond, despite having heard all the gory details of his cooperation, he’s effectively telling the defendant that his cooperation isn’t going to produce that Herculean downward departure that Mukasey is counting on, and that will be the end of DiPascali’s incentive to snitch.  No matter what benefit he might receive for his 5K1.1 letter, he’s going to die in prison.  Not quite what DiPascali thought he was buying from his deep insider lawyer and his buddies.

And you thought cooperation was the easy way to play the system?