Friday, March 20, 2009

No bail for Madoff

The general public may have a misperception about bail. Bail is not to punish. Bail is to make sure the defendant does not disappear during the legal proceedings. Many people want Bernie Madoff severely punished, but now that he has pleaded guilty to the financial crime of the century, the question before the Court of Appeals this week was whether he is entitled to bail pending his sentencing.

The case is U.S. v. Madoff, decided by summary order on March 20. I admire the Second Circuit's decision to resist the temptation to issue a formal, published opinion on such a high-profile issue, particularly since it sidesteps an issue (at the end of the opinion) that invokes a Ninth Circuit decision. Since the standard of review on this appeal is whether the trial court committed "clear error" in denying Madoff bail, the issue is not so complicated as to provide a basis for a precedential ruling.

The Court of Appeals affirms the district court's order denying Madoff bail. Summarizing Judge Chin's ruling, the Second Circuit notes that "the district court found that in light of the defendant’s age (70) and the length of a potential sentence (150 years), he has an incentive to flee, and that because he has the means to do so, he presents a risk of flight, and therefore should not be released." That is a reasonable assessment, the Second Circuit finds.

Madoff's lawyers argued that his incentive to flee is not a proper consideration and that the trial court was not specific enough in denying bail. No dice, the Court of Appeals says. "As to the incentive to flee (based on his age and exposure to a lengthy imprisonment), we consider that such an incentive naturally bears upon and increases the risk of flight." In addition, while Madoff argued that all of his assets are accounted for and are inaccessible to him, the district court did not have to deem that representations as reliable. "The defendant has a residence abroad, and has had ample opportunity over a long period of time to secret substantial resources outside the country." So Bernie's not going anywhere but the big house.

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