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.