On the afternoon of Jan. 14, when U.S. District Judge Lawrence M. McKenna affirmed Magistrate Judge Ronald L. Ellis’ order denying the application for Bernard Madoff’s pretrial detention, the public was again outraged and inflamed by this latest “defeat” in the Madoff bail watch. To most, it seemed a further betrayal of justice and grave insult atop the already devastating injuries suffered by so many. Madoff smirked his way out of the courthouse and back home to the lap of luxury.
Forget about merely jailing him; before Ellis’ decision was issued on Jan. 12, responsible commentators for CNBC literally favored waterboarding Madoff “to get him to talk,” or placing him in an open-air stockade “right on Wall Street” so that the man on the street might air his grievances with Madoff face to face (with whatever consequences that might mean for his physical safety). Following the decision, bloggers on the New York Times online irresponsibly speculated that Ellis, in deciding as he did, may have been on the receiving end of one of Madoff’s famous post-midnight checks. Unbelievable!
The surging mentality to exact vengeance that Madoff calls to mind is, for this author, much like the summer of 1977 in New York, although not in a bail context, when the entire city was gripped with disdain and, in that case, outright fear, of a particular offender, the Son of Sam, and the question of whether that wretched criminal would ever meet justice. With Madoff, people across the country and the world are up in arms as to this brazen thief and whether he will ever get what he is rightfully due.
Get past the emotional reaction
On an emotional level, the judges’ decisions to allow Madoff to be confined to his home — where, admittedly, there is virtually no risk that he can abscond and little risk that he can further deplete his assets — simply “feels” wrong. Madoff’s post-arrest transmission of jewelry and gifts to family and friends was, from all appearances, a dissipation of assets and contemptuous of the freeze order. But Ellis’ perhaps overly talmudic — in my judgment, wrong — decision made a distinction between the prohibitions against asset dissipation in the preliminary injunction in the U.S. Securities and Exchange Commission case and the less onerous bail conditions in the criminal action. Ellis declared specifically that “no violation [of the bail conditions] is apparent.”
Most important, though, and aside from the issue of whether Madoff violated the bail conditions, the magistrate judge and district judge recognized the true purpose of bail — to secure the defendant’s presence in court for trial (in part determinable by his willingness to obstruct justice) and to ensure that the public isn’t further endangered in the interim.
The lay public, however, and ordinarily objective commentators have a harder time accepting that legal justification. Because Madoff allegedly confessed his crime to his sons and the FBI, the public has called the ballgame over and decided that Madoff is ready for sentence and should begin to serve it — in jail. To the understandably angry observer, anyone in the justice system who thinks otherwise is wrongheaded, or maybe even corrupt.
One may speculate that the government’s reversal of its prior position, from house arrest to detention, was partly motivated by Madoff’s refusal to further cooperate (meaning self-incriminate by disclosing assets) and presumably assist in uncovering further guilty scalps; there undoubtedly are a number there to uncover. Ellis apparently saw that change of heart in that light and ruled that the government’s anger and frustration at Madoff’s most recent acts, without more, does not justify detention. However frustrating, the government is not permitted what amounts to a contempt citation and detention until Madoff has a change of mind — even though his stated intent to cooperate may have led the government to initially agree to lenient bail terms.
Troubling to the “average guy” is the perception that Madoff got “rich man’s justice.” To him, “Madoff defrauded people out of $50 billion and sits in his plush penthouse awaiting trial, while some poor jerk who stole a flat screen TV but can’t afford $5,000 bail will languish in jail for a year, almost forcing him to plead guilty to get it over with, and at least get credit for doing that time.” That “appearance” is reality. The TV thief cannot afford a monitoring system or a $10 million bail package secured by real estate, whereas Madoff (or at least his wife) can. Indeed, that reality, and the disequilibrium it represents, need to be remedied somehow. But that’s a subject for another day.
As we continue to monitor what happens to Madoff, the commentators need to get it straight. They must resist getting swept up in the public outcry against Madoff (who surely deserves it) and explain clearly to viewers the time-honored protocols and procedures of the criminal justice system. Simply put, every pretrial defendant is accorded the presumption of innocence even if he is apparently guilty, as well as the presumptive right to bail — both until proven otherwise.
Joel Cohen, a former state and federal prosecutor, practices white-collar criminal defense law at Stroock & Stroock & Lavan in New York. He is an adjunct professor of professional responsibility at Fordham University School of Law.
