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Madoff and Bail Pending Sentencing

By Jeralyn, Section Crime in the News
Posted on Wed Mar 11, 2009 at 06:19:00 PM EST
Tags: Bernard Madoff (all tags)
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Does anyone find it unusual that Bernard Madoff's lawyers didn't file a motion today for bail pending sentencing? I just checked the court docket and the only thing they filed were their entries of appearance. The only filing by the Government was the emails it received from victims, which it filed under seal.

Has the Government agreed to let Madoff stay out on bond pending sentencing? If not, why wouldn't Madoff's lawyers file a big brief arguing for it? The Judge said yesterday it's one of two issues he will take up tomorrow./

Here's Reuters and Bloomberg's latest articles with speculation from lawyers and sources they interviewed about why Madoff may have agreed to plead guilty, but it's still not adding up for me. I have a long post ready on other possibilities, but I'm holding off in case some real information emerges tonight or tomorrow. I don't feel like just fueling more speculation. [Updates below]

This AP article suggests the Judge will grant bail pending sentencing:
Chin has not said how he intends to rule on the bail issue, but he indicated he would give victims who disagreed with his decision a chance to speak before he makes his order final.

What victim is going to argue for bail? If this is what Chin said, then it seems he's going to grant bail. Do the prosecutors also agree? If so, then that's a concession they made to get his guilty plea and while there may not be a formal "plea bargain," there is a plea deal.

A plea deal is any concession made in exchange for a plea of guilty. It doesn't just refer to a sentence reduction or an agreed upon sentence. If the Government agrees to let someone plead guilty to 8 charges when it would otherwise charge them with 9, that's a plea deal. If the Government agrees not to oppose bail pending sentencing, that's a concession and a plea deal.

Obviously, the two sides conferred and reached an agreement on what counts Madoff would plead guilty to. If, as Bloomberg reports, the Government wanted a plea to a conspiracy charge but agreed to forego it in exchange for Madoff pleading guilty to the other 11 charges, that's a concession and a plea deal.

It also seems there was an agreement (if only to disagree)on forfeiture. Madoff has agreed to plead guilty to the criminal forfeiture counts and the Government has agreed in return to let him dispute the amount of the forfeiture with the Judge having the final say.

If there really was no agreement, there would no Information, there would have been an Indictment. I wonder what else they agreed to in their non-agreement?

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    Madoff and Bail Pending Sentencing | 11 comments (11 topical)

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    It doesn't add up. (5.00 / 1) (#1)
    by Bourges on Wed Mar 11, 2009 at 07:04:19 PM EST
    I agree.  Even if Madoff is giving up in the literal sense of the word, why wouldn't he want every last minute he could muster in his own home? How does this help his employees who many think must have been complicit in this scheme?

    re (5.00 / 1) (#10)
    by Bemused on Thu Mar 12, 2009 at 07:15:40 AM EST
      In a manner of speaking that is a "deal," but it's likely that the government simply recognized that no "carrot" it could realistically offer Madoff would suffice to compel his cooperation. In the absence of terms which would give Madoff either a practical possibility of not serving the remainder of his life (and the man's 70 years old) what could the government possibly offer him without provoking mass outrage which would make him decide to cooperate fully? Why either take others down or voluntarily disclose and surrender assets if any benefit is entirely illusory. At 70 years old there is no practical difference between a 150 year sentence and a 30 year sentence.

      Given the circumstances here, if the government were to allow Madoff to enter a plea only to charges which tied the judge's hand by establishing a maximum potential penalty which made it likely he would be eligible for release  under the terms of the sentence itself, the criticism would be overwhelming even if the government could claim the deal allowed it to prosecute others successfully or uncovered assets which could provide partial restitution. there is also the requirement that the court accept any plea agreement and it's possible neither side thinks the judge would accept a plea agreement to only a couple of the lesser charges based on finding such a deal does not adequately reflect the nature and seriousness of the criminal conduct.

       As for not filing a memorandum of law in favor continued release pending sentencing, it might be simply recognizing that filing paper that tells a