In our last posting, we mentioned that we were awaiting Baker & Hostetler's response concerning the process whereby the firm chose Eugene F. Collins Solicitors in Dublin, and Lovells LLP in London, to assist in Madoff-related activity in Ireland, the United Kingdom and on the European continent.

Having not yet received a response from Baker & Hostetler, we decided to send e-mails and/or to telephone the retained firms directly.

To that end, on Wednesday we called and left a message for David Cantrell, the managing partner of Eugene Collins, following up yesterday with an e-mail.

We also called Lovells, where we spoke briefly to Joe Bannister, a London-based partner with expertise, according to his biography, in "financial services insolvencies."

Responding to our query as to how Lovells had been selected by Baker & Hostetler, Bannister replied, "I'm not in a position to comment on Lovells' position in relation to that. Could I ask you to speak to Cary Kochberg please?"

Of course he could ask.

We then put in a call to Kochberg at Lovells' London office and were informed by his P.A. that he was in a meeting. Leaving our telephone number, we followed up with an e-mail. Calling again today, we were informed by Kochberg's P.A. that he was again in a meeting.

Was this the continuation of yesterday's meeting?

It is increasingly clear that neither Baker & Hostetler nor the firms it has retained have any interest in answering questions regarding the process by which these firms were selected.

While this may be standard procedure in the world of high-profile law firms dealing with high stakes cases, neither the victims' nor the the publics' need to know exactly how Irving Picard and his counsel, Baker & Hostetler, operate, is being satisfied.

What is known is that Picard, Baker, Eugene Collins, Lovells, Lazard Freres and any other entity to be retained in the future will share--likely substantially--in the nearly $1 billion already recovered by Picard.

To date, neither Picard nor Baker & Hostetler--the firm he joined as a partner one week after the court awarded them their plums--has shown serious interest in transparency.

That does not bode well for Bernard Madoff's victims.

Our conversation with Sammy Antar, the former chief financial officer of Crazy Eddie, Inc., and self-confessed possessor of a criminal mind, is so far-ranging that we are sharing it with our web readers in installments.

In today's installment, Sammy tells about the "Fraud Triangle," which, as you will soon learn, actually has four sides!

"It was developed by criminologists trying to study white collar crime," Sammy explains. "The first element is incentive. You may think that money is the incentive for economic crime; money is a byproduct of it. There is always a spectrum of reasons for crime.

"People commit crimes for a whole host of reasons. In Madoff's case, it could have been sheer ego--he didn't want people to know he was a failure--and, of course, the byproduct was money. It could have been because he liked the stature of being successful--some people commit crimes to get in the sack with someone."

The second element:

"Opportunity; your code of ethics limits your behavior but it doesn't limit ours. In Madoff's case, that came from lack of checks and balances. lack of effective oversight by the SEC.

The third element:

"It's called 'rationalization'--the idea that criminals rationalize their crimes. In white collar crime you're dealing with a highly intelligent individual. Studies show that between ninety-two and ninety-six percent of white collar criminals have no prior criminal record. You can estimate that the higher the economic value of a white collar crime, the less likely that the person has a criminal record."

Now Sammy tells us that this "triangle" has a fourth element:

"Capability--the experts went beyond the triangle: to be capable you have to be intelligent, to be intelligent you have to know right from wrong. We look at our criminal behavior as being no different from what everyday people do. There's no moral differentiation. We enjoy doing the crime; it's challenging. And, of course, the money is good. But that doesn't mean that money is always the primary factor. I knew what I was doing. I enjoyed it. It was fun!

Our conversation with Sammy Antar, the former chief financial officer of Crazy Eddie, Inc., and self-confessed possessor of a criminal mind, is so far-ranging that we are sharing it with our web readers in installments.

In today's installment, Sammy explores the nature of Bernard Madoff's criminality while continuing to burnish his own credentials as an unrepentant bad guy.

"Was Bernie Madoff category one, like me, or [the less sinister seeming] category two? My guess is that he is probably category two," Sammy says. "We all live with criminal temptation every day: some people jaywalk. Of course, I'm not equating that with a large crime, but we all have our levels of temptation. Some of them don't rise to the level of criminality, as they do for me."

Now Sammy, who an hour ago ran ahead of us as we entered the coffee shop, excusing his gaffe by saying, "I'm hyper," and immediately on sitting down at our table downed a cup of Java, summons a waiter, politely asks for a refill, and continues his assessment of the Ponzi King: "I don't think Madoff started out to be a criminal," he theorizes. "I believe that he succumbed to temptation. He may have had a bad quarter or had borrowed from one person to pay the other."

Madoff's success at convincing seemingly savvy movers and shakers to invest with him:

"Madoff increased the comfort level by building a wall of false integrity around him. How did he do it? He donated to charities; he was a fiduciary to these charities by managing their money; he was even on the board of NASD. As a criminal, I did these sorts of things too."

All in the family:

"Look at why Madoff was successful. Madoff and his people shared common backgrounds, religion, and family loyalty, as do the Russian Mob, the Mafia, and our family of Crazy Eddie's. Those are the cohesive groups--the toughest groups to crack. I'm not saying the other family members were involved, but it was his family's cohesiveness that enabled him to be successful for a long period of time."

The con man's appeal for the rest of us:

"Most white collar criminals are charming, likeable people; that's why we're called 'confidence men'--we gain the confidence of our victims." Then, leaning mock-menacingly toward us again, Sammy adds, "We can pick your pocket as we are talking to you."

We criminal are different:

"What you have to understand is that you are dealing with an element of society that doesn't play by your rules: we are economic predators, no different than serial killers. The only difference is that we commit our crimes with a smile while serial killers do it with weapons. The effects of our crimes are just as brutal as violent crime.

"Madoff was almost the classic white collar criminal. He didn't kill twenty or thirty people, but you have fifty billion dollars in damages: he wiped out peoples homes, their life savings; there are probably thousands of people out of work as a result of his crime. He got caught in his old age and will probaby be dead by the time he goes to jail."

Log on tomorrow for the next installment of "Dinner with Sammy," his explanation of the "Fraud Triangle," criteria developed by criminologists to better understand what makes people like Bernie Madoff--and, of course, himself, tick.

Is Bernie Madoff a born criminal or an opportunist?

What motivates one possessed of a true criminal mind? Greed? The thrill of getting away with fraud? Conning innocent people? All of the above?

Once punished, can a born criminal become one of the good guys?

These are but a few of the questions we posed to Sam E. "Sammy" Antar, an extremely vocal, self-confessed possessor of a criminal mind, during a conversation on a cold evening last week in a midtown Manhattan coffee shop.

Sammy, the former chief financial officer of Crazy Eddie, Inc., was a mastermind, along with his cousin Eddie "Crazy Eddie" Antar and an uncle, Sam M. Antar, of one of the largest security frauds of their day, having cost investors hundreds of millions of dollars.

Becoming the government's key witness against his cousin and uncle in both the criminal and civil prosecutions, Sammy pled guilty to three felony counts and was sentenced to six months' house arrest, twelve hundred hours of community service and three years' probation, as well as being fined.

Our conversation with Sammy is so wide-ranging that we are sharing it with our web readers in installments.

"Dinner with Sammy," Part One

In today's installment, Sammy burnishes his own credentials as an unrepentant and confirmed bad guy.

"I solemnly swear to tell the truth, the whole truth, so help me God!" Sammy exclaims in mock gravity as he tucks into his dinner: a scoop of tuna surrounded by rings of green and red peppers and circles of Bermuda onion.

"Before we talk about Madoff, you have to understand that there are two types of criminals," he explains, "the one that plans to be a criminal and the one that when the opportunity presents itself becomes a criminal. I'm not going to say that one is better than the other; both are evil. I was the worst kind of criminal; I committed my crime simply because I could. I enjoyed it and if I'm not a criminal today, it's only because I got caught."

Cooperating with the Feds:

"The only reason that I cooperated with the United States government is because I didn't want to pick up a bar of soap and worry who my boyfriend was going to be; it just wasn't my style. I did not cooperate because I wanted to do the right thing; I did not cooperate because I believed in God; I did not cooperate because I found God; I did not cooperate for any moral or heroic reasons. The only reason I cooperated is because I got caught--most people cooperate because they got caught."

Rehab for criminals

"The zebra doesn't change its stripes. All of this sorrow, all of this morality, all of this redemption is baloney! I do free speaking engagements all over the country. I pay out of my own pocket. People often ask me if I'm redeemed. I say, 'Just because I do good deeds now that doesn't mean I'm redeemed.' When I was a criminal, I walked old ladies across the street too."

The criminal's attitude toward potential victims:

"The criminal considers your humanity as a weakness to be exploited in the execution of a crime," Sammy confides. Then, staring intently at us across the table, he drives his point home, observing, "You are being nice to me now, sitting down with me. You are having a code of ethics: you believe in innocence until being proven guilty, which is a wonderful thing. I'm not demeaning that. That just gives us the the initiative to commit our crimes."

Sammy's credo:

"Having consumed the mound of tuna at his plate's center, Sammy proceeds to systematically attack the surrounding rings of peppers and onions. Energized, he expands on his theme by invoking the late Ronald Reagan. "He said 'trust and verify.' I say, 'don't trust, just verify,' because when you give me your trust that gives me the initiative. Your code of ethics, your willingness to believe that today Sammy Antar may be a reformed felon; your willingness to sit down with me now, even though I was an economic predator, without checking your pockets"--here Sammy rather playfully leans toward us--"your innate trust limits your behavior and gives me the opportunity as a criminal to exploit it, because we measure our effectiveness by the comfort level of our victims. You can steal more with a smile than you can with a gun."

Log on tomorrow for the next installment of "Dinner with Sammy," his take on the nature of Bernie Madoff's criminality.

In perusing the New York State Supreme Court's website, we discover that Bernie Madoff's lead attorney, Ira Lee Sorkin, may himself land in court in the near future as a defendant in a malpractice suit filed by a former client.

So, Bernie, just as many of your erstwhile investors, lured by the amazing returns you were achieving, failed to perform due diligence concerning Bernard Madoff Investment Securities, it's obvious that such an investigation was not on your agenda when it came to engaging "Ike," as he likes to be called, to represent you.

Interested?

If so, we refer you to the New York State Supreme Court website, Index Number 603536-2006.

Yesterday we interviewed Douglas Berman, the William B. Saxbe Designated Professor of Law at the Moritz College of Law of The Ohio State University and the owner of the website, Sentencing Law and Policy. Professor Berman is one of the nation's leading authorities on federal sentencing.

Q. If Madoff pleads, rather than going to trial, what might the parameters of the sentence be?

DB: It depends on the nature and the terms of the plea agreement. First and foremost, it's inevitable that he will plead unless he and his lawyers cannot negotiate a tolerable outcome from their perspective. The evidence is so dramatic from his own admissions, and the public handwringing and the losses, particularly to prominent people who will not be eager to speak on his behalf, are so extreme that I cannot imagine that any lawyer representing Madoff would think that there would be a good outcome from going to trial rather than taking a plea.

I expect that the government would be comfortable with a plea agreement providing for multiple years in prison--even more than a decade in prison. That said, it is relatively rare for a first offender, no matter the scope of the fraud, to plead guilty and not be able to get a sentencing range below a decade. The most obvious example of that is Andrew Fastow, of the Enron scandal, who by all accounts was a scoundrel but was able to plead guilty in part because he was cooperating to give them other scoundrels and because he did plead guilty with a view toward his other family members.

Q. In plea negotiations, do the victims' comments or views play any role? And if a plea bargain were actually agreed to, would victims be allowed to make statements in court on sentencing day?

DB: Yes, and yes, although there is a bit of extra uncertainty here. There is a relatively new federal statute known as The Crime Victim's Rights Act of 2004, passed by Congress and signed by President George W. Bush, which provides for quite explicit safeguards for victims in having a role in this process.

What has not been resolved in the context of a case with such high profile victims is whether the prosecution and the defense can negotiate around those provisions. I presume, for many reasons, that neither the government nor Madoff's lawyers want to have a sentencing hearing where Steven Spielberg and other high profile victims vent their spleen or describe all of their projects that got demolished.

So my instinct is that, as part of the plea negotiations, there should be an effort to recognize the rights of victims, but also to make sure that the victims don't provide external disruption to what the parties think is the best way to get this done. The problem there is that that is the fundamental reason why Congress passed the act, that there was concern that in many cases, prosecutors and defense attorneys would have the incentive to cut victims out of the loop. Thus this could become an amazing test case for victims' rights, though for a variety of reasons everybody involved is very aware of these competing concerns and will try to come up with a sensible way to deal with both the difficulties and the legitimate rights that the victims may be inclined to bring up.

Q. What role will public opinion play in how the government looks at a plea agreement?

DB: In many respects, public opinion is not only a large part of what influences the Justice Department but a central part. There are both legitimate and illegitimate bases for that. One, of course, is that public opinion influences the perception of justice; there are lots of components of achieving justice that necessarily turn on how the public responds to the outcome.

The government is more than aware of how much P.R. this case gets, and more than aware that they can't make a deal which looks like: rich scoundrel gets off easy. The pernicious part is that it may preclude their ability to make what would be a very sensible deal in light of the evidence. It may be that because the press has been so bad and because Madoff is now Exhibit A of corporate greed and scandal that what would be a sensible deal in light of his age or his willingness to try to make restitution or whatever other arrangements he is willing to make, would unduly influence their willingness to accept what might be a just outcome.

My guess is that the public only cares about how many years Madoff will get and doesn't focus on whether he will serve time in a minimum or maximum security facility. The public is not going to care whether that facility is near to where Madoff's family and friends are, even though those factors are probably very important to Madoff. That's where there may be potential for a deal.

Q. If a plea agreement is not reached, what is your ballpark estimate as to when a trial could take place?

DB: After the indictment, it usually takes a year or more before even a relatively simple case goes to trial. In this case, if you add the extent to which it might be in Madoff's interest not to rush this trial, it could take longer than that.

That estimate is based on the assumption that they will spend considerable time well into 2009 trying to figure out whether a deal can come together, and there will be pressure from different sources to make that happen. Only if that were to blow up would we get moving toward a trial. It's often a long haul.

According to press reports, Ponzi King Madoff, who can't venture beyond the luxurious confines of his duplex penthouse on East 64th Street just off Park Avenue under the strict terms of his house arrest, has been whining like a badly brought up six-year old of late about not being able to go out to dinner at his favorite neighborhood haunts.

One can only wonder: was the accused swindler really ever a six-year old? If so, did he habitually grab toys from other kids in the playground? And if so, did Mama Madoff, herself once the target of an SEC investigation, ever ground him for unsportsmanlike behavior?

Doesn't the carping house arrestee realize that a Weekend at Bernie's eating takeout from fancy local bistros makes him a lucky stiff compared to those who can't make bail and have to rely on standard issue prison fare at the Manhattan Correctional Center, located downtown on Park Row?

According to information contained in the Encyclopedia of Prisons and Correctional Facilities, inmates in such institutions sit down to dinner at 4:00 p.m. and are given half an hour from entry to exit to consume their meal. And while all prisons are meant to have salad bars offering "heart healthy" versions of the main meal of the day, "the serving line at meals is a constant reminder of the diners' vulnerability and their powerlessness over the daily routine."

In contrast, Bernie Madoff can dine on healthy or calorie and cholesterol-laden salads and entrees, doing so at times of his own choosing. And while his confinement to Apartment 12A is a constant reminder that he can't stroll over to a favored eatery at will, he is neither vulnerable nor powerless to determine his daily housebound routine.

If Bernie is really so sick and tired of local restaurant takeout, however, he should consider the option of incarceration. Perhaps he could pull another jewelry caper and get himself remanded.

Where to? After all, there's the matter of that routine at the Correctional Center--and Park Row isn't exactly Park Avenue.

Having visited several prisons in the course of conducting interviews for our various oral histories, however, we can recommend two, one a Federal prison, the other more like a tropical bed-and-breakfast with bars.

The Federal lockup is the Miami Correctional Institute, where we interviewed convicted Panamanian strongman, Manuel Antonio Noriega, and where his breakfast tray was identical to that served at our luxury hotel nearby, save for the use of plastic tray, dishes, and utensils.

Better still would be the bed and breakfast option, and should Bernie be able to prove that he stashed money offshore, he might qualify for incarceration, just hours away by air on the Caribbean nation of Grenada. There he would be ensconsed in a prison with a view, housed in the island's botanical garden atop a hill, where we interviewed a former general convicted of murdering that island nation's prime minister in a coup, and where inmates can barbecue on hibatchis set up in the picturesque institution's courtyard--sort of San Quentin meets Midnight Express. 

Perusing yesterday's New York Times, we came across a reference to public shaming of "those who trade in greed" in Clyde Haberman's NYC column, in which Dan Markel, a professor at Florida State University's College of Law, who has written on the subject--he shares authorship with Jennifer M. Collins and Ethan J. Leib of Privilege or Punish? Criminal Justice and the Challenge of Family Ties [Oxford University Press, March 2009]--is quoted. Professor Markel is also the founding editor of www.prawfs.com, a blog for and by law professors.

Intrigued at the prospect of Bernie Madoff's getting off without doing time but being forced to make the rounds of country clubs and trendy restaurants in New York, Palm Beach, Montauk and Antibes wearing a tennis sweater emblazoned with a Scarlet F, for Fraudster, we called Professor Markel a while ago and asked, "What should the punishment be if a sentencing judge were using a blank slate approach rather than adhering to traditional sentencing guidelines?"

"Positing for the sake of argument that this person, without any justification or excuse, over a period of forty years created this massive Ponzi scheme, in which people lost hundreds of millions, if not billions, of dollars, some incarceration would probably be appropriate. But it's not entirely clear that though he is a very successful fraudster we have to cage him for the rest of his natural life. Personally, I would impose some period of incarceration, maybe a few years, but I think there are a number of non-incarcerating ways to punish him in addition."

"In addition to assessing restitution and fines, we could place him under probation, where there are all sorts of supervised and onerous release conditions which he has to satisfy. There are numerous ways in which we can save society the costs of incarceration while at the same time making his life sufficiently uncomfortable so that no one would think he is avoiding the condemnation by the legal system that he would deserve, if proven guilty. For example, curfews; limitations on where he can travel and work; requiring him to perform community service projects. All of this depends on what his skills are. But, for non-incarcerating punishments, the goal would be to punish him in a way that holds him accountable and extracts some value from his labor without cutting him off forever from the prospect of living with other people in society."

Will Bernie Madoff ever experience shame for what he has done, we wonder? Or will he just take the effects of his massive fraud on his many victims in his stride?

"You can ask that question of almost every criminal who hurts someone," Professor Markel replies. "Not that this should necessarily affect how the state punishes him. I would guess that, as a predictive matter, the Bernie Madoffs of this world are actually far more likely to be reconnected to good values than are many criminals whose mental and social backgrounds make them entirely skeptical of social values. Madoff knows what it is to benefit from a well ordered society, and assuming that he's eventually proven guilty, he will be determined to have exploited people within that well-ordered society. My guess is that despite the wrongness of his actions, and the number of people he's harmed, and the significance of those harms, Madoff stands in a position to be successfully reintegrated into society. But, perhaps, I'm being naive."