OPINION

Keep Bernard Madoff Free!

Why it's a bad idea to jail people before trial.

Jan 9, 2009 | Updated: 1:26  p.m. ET Jan 9, 2009

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  • Posted By: San Fernando Curt @ 03/13/2009 10:44:17 AM

    I came to this story late: But changing the penal system isn't the issue. Is it proper to coddle a New York insider who's wealthy, connected - and, evidently, crooked as corkscrew? All Newsweek has accomplished, publishing this twaddle, is outing itself as protector/shill for a corrupt, greedy elite. What? Did he turn your head with a Hudson boat ride and some martinis?

  • Posted By: M_Bird @ 02/14/2009 2:51:03 PM

    It's obvious Newsweek has it's head up it's ass still.

  • Posted By: tokyotower @ 02/09/2009 7:54:56 PM

    The real issue in the Madoff case is that Madoff was acting as a front for the Russian Mafia and Drug Cartels, offshore banks that were aiding and abetting him in this fraud and a corrupt and captured SEC--not to mention some of our elected watchdigs in the House of the People. Yes, America cannot afford a 'mistrial' due to stupidy here; but it also cannot afford to be myopic now and focus on technical issues versus the absolute corruption that has been exposed here.
    Newsweek's so-called new identity now being discussed says its audience is one fo the most affluent and it hopes to serve these educated, upscale readers better. Well, there is no better way to serve them that to expose the absolute level of corruption we have in the SEC, and our other regulators who have allowed Wall Street to be anything but a center for capital formation. Newsweek needs to keep our captured regulators and congressmen on its cover/news pages until confidence returns to the system. Forget about Bush; the right and the left sold out the country. And it happened because our media was also sleeping. I hope Nwk and the Fourth Estate wake-up before it's too late....

  • Posted By: edender@aol.com @ 01/27/2009 8:15:43 PM

    lets put all of the crooks in Gitmo, Stock brokers, hedge fund operators, Bernnie!! and any fool that thinks he can steal your hard earned money!!!

  • Posted By: JohnJDoe @ 01/13/2009 6:00:42 PM

    Yeap, leave the sucker out of jail so he can hide, spend or give away all his dirty money. He should be hung!

  • Posted By: JohnJDoe @ 01/13/2009 5:59:35 PM

    Crap! Leave him out of jail so he can hide or give away all his dirty money? The sucker should be hanged now!

  • Posted By: iwolf @ 01/13/2009 4:16:49 PM

    american justice. yeah right. madoff is free and your broke. there is a god and his laughing with me. your so smart to have put all your money in a ponzi. now demanding that justice be served. please. socialist. demanding that the government bail you out.hahahaha. capitalist, free market, unregulated. sound familier? yes thats right reaganomics. the rich have gotten richer and you thought you were next. hahahaha

  • Posted By: iwolf @ 01/13/2009 4:11:23 PM

    the justice system has always been harsher on minorities than whites. always. but now that so many "americans" are feeling ripped off, now they want justice. please. welcome to the club. and just so you know, i glad madoff is free and hope he gets away with it. as if i could have invested with him. its an all american scam and you are getting screwed. hahahahahahhahahahahahahahaahahahahahah

  • Posted By: smallgift @ 01/11/2009 8:47:12 AM

    Last week Madoff was taught sending his family and friends gifts of jewelry and signed checks (over $100 million) just think what he wasn't caught doing. That's right he's most probabily gotten away with a whole lot more.

    • Posted By: jarcher1 @ 01/11/2009 9:30:31 AM

      Madoff was "taught" sending about 1 million in jewelry to relatives and friends because after he sent it, he told his lawyers, and they told him to get it back. The checks are 173 million that were already signed in his desk drawer. How prosecutors determined that he was planning to send them out, I don't know. Maybe they hired a psychic hotline adviser to keep them one step ahead of Bernie. Maybe they have a crystal ball. Anyway he's the information:

      http://www.nydailynews.com/money/2009/01/09/2009-01-09_decision_on_bernard_madoff_bail_postpone.html

      • Posted By: CBear @ 01/11/2009 12:32:49 PM

        Jarcher1, I have another rebuttal to yours on my 1/10 8:57comment about what would happen to Madoff if he were in the confines of the judicial system in the Middle East, China, and let me add some South American countires and Mexico. For all its flaws, the American jurisprudence system is still one of the best the world. As you correctly point out it is based on the good things we got from the English system, and it has a long history of apparant improvement. Even in the US, I suspect if this case were not pending in USDC in Manhatten, Madoff would have been behind bars pending his indictment and forthcoming trial long ago. There is something about NYC that is repugnant to everything this country stands for. The "sophisticated thugs" who operate in the canyons of Wall Street seem to get special treatment. Afterall its is just sombody elses money. Whether it is any of the investment bankers, Milken, Vesco, insurance family Greenburg's at AIG, Marsh, or ACE in Bermuda, these guys all seem to think they deserve special treatment. I expect if Madoff's case was pending in Missisippi, Wyoming, Texas or Arkansas he would behind bars.

        • Posted By: jarcher1 @ 01/11/2009 6:02:35 PM

          We don't have many disagreements about the expectations and supposed entitlement of the financial services managers. The only exception I would make is that its nation wide, not just limited to Wall Street. One of my cards is with a smallish bank in ND, that apparently makes its business extending credit to students, which is when I got the card. I called them wanting to negotiate a lower rate, and they refused. Fine I paid it off in about 6 months and it will be a cold day in hell before they get anymore business from me. Its not just the big brokerages and investment banks that are run by arrogant and self entitled people, its virtually all of them. At least as far as consumer credit is concerned. It wasn't that long ago that 20% interest put you in danger of being charged with loan sharkiing, but the masters of the universe paid off enough politicians to get the laws changed to their way of thinking, which is a big contributor to the current mess they and we find ourselves in. And you know, I still don't think most of the big banks see it as *their* problem, because they think they are so indispensable they can just dig in (apparently from their actions so far) and the public will have to shoulder the burden.

          As far as the American system of criminal justice being the best, I wouldn't argue with that. At least as it is written, and most likely as it is practiced. I simply thought your statements were a bit overwrought. In China for example, corruption is a way of life, and not really much commented on, except when the general population is getting restless, or something becomes an international incident that endangers their export business.

          • Posted By: jarcher1 @ 01/11/2009 6:21:23 PM

            The only people I find more arrogant than bankers are prosecuting attorneys. Prosecuting attorneys are generally insulated from any repercussions for filing any kind of charges against anyone, most especially the poor. It got so bad here in a solid red state (Texas) that the legislature finally passed a criminal law for prosecutor malfeasance a few years back, there have been some glaring examples here of prosecutors taking people to court without any evidential justification for doing so.

            • Posted By: jarcher1 @ 01/11/2009 6:29:03 PM

              Let me tell you about my last trip to the court house for jury selection:

              At voir dire prosecutor told the prospective juror's that the defendant had tried to burn down the county jail. He had started a fire in his cell with the intent of burning down the building. If you stop and think about, the only thing that would burn in a concrete floored and ceilinged cell with metal walls would be the bedding or the inmates clothes. The prosecutor went to great lenghts to explain that under Texas law, since the prisoner had set a fire on something that was bolted to the building, it was legally arson. He also offered the aside that one case he knew of the perps had burglarized a fast food restaurant that had a floor safe and because they used a cutting torch to cut the safe away from the rebar in the floor, they could (smirk, smirk) be charged with arson as well as burglary. That's the proprietorial mindset in these parts - who cares about fitting the punishment to the crime, lets just get convictions on everything we can so it makes us look like great successes as prosecutors. I'm assuming somebody downtown keeps a record of total convictions and the more the better for a prosecutor. Anyhow, the prosecutor asked pointedly if there were objections to giving the maximum penalty for arson to this poor smuck that needed anger management training more than imprisonment. Now in Texas, the maximum punishment for arson is life. Well I replied that I wouldn't return a verdict for life in prison, for some clown that set his bedding on fire in an area where, whatever his intentions may have been, it could not have lead to significant damage of the jail and was, in fact, only charged with arson because a lawyerly parsing of the statute barely allowed it. If the bunks had not happened to be fastened to the floor and ceiling, what could you charge the guy with? Reckless endangernent maybe. Anyhow that's one anecdotal story of why I'm down on the prosecution. There are some that have gone national that are even clearer indications that a lot of prosecutors could give a flying fig about justice being served, they just want the harshest conviction they can get.

              So as far as Madoff is concerned, and he's not the point of the article, just an example, he deserves the same Constitutional protections as anyone else, rich or poor. The bail system is loaded for the prosecution, which is anything but what the founders had in mind. If the poor had real lawyers, they could plead the same way and probably get freedom with some supervision until their acquittal or conviction. It is unfortunate that everybody can't afford a good lawyer, buts its hardly something that is Madoff's fault.

              • Posted By: Holly Garfield @ 01/12/2009 6:07:36 AM

                jarcher1, I trust you were not selected for the jury. Prosecutors are hired to convict the guilty and not bring the innocent to court. Modern law enforcement techniques allow the police agencies to be more positive before arresting suspects and bringing the cases to the DA. At your voir dire the DA was seeing if you would enforce the law. If you are not willing to follow the law he certainly wouldn't want you on the jury. You also seem to have prejudged the case without hearing the prosecution side. You definitely were unfit for this jury. And what if the DA showed that the person was a serial arsonist who had an uncontrollable urge to set fires? Perhaps he wasn???t some poor ***, but a continuing danger to others as long as he is free.

                Bernie Madoff DID have the right to bail, and he exercised it. The innocent victims of his scam have the right to maximum restitution and the judge has the obligation to assure those people that Bernie Madoff will not further damage them while out on bail. Bernie Madoff showed that he would continue to wrongfully damage the victims of the crime he confessed to committing. He clearly has no sense of remorse and shows that he continues to be a danger his victims even after that confession. He received his right to bail, and he continued to violate the rights of others. That is a valid reason to revoke bail no matter who you are.

                • Posted By: jarcher1 @ 01/12/2009 9:05:26 PM

                  Well Holly you're certainly entitled to your opinion. Couple of points though - First I wasn't refusing to follow the law as a juror, I could have convicted for arson on the basis of the technical case. What I bridled at was the prosecutors insistance that in the sentencing phase I should be able to in good conscience vote to sent the defendant up for life based on the "enormity" of *this* heinous crime he committed. Second your point about how the DA might have been really trying to protect the public from a serial arsonist, serial cat burglar, serial rapest, serial killer, or whatever is exactly legally wrong. When a person is charged with a crime, that crime, according to proper jurisprudence, is the only thing in view and is to be considered on its own demerits. If the prosecutor couldn't get the conviction he felt was needed from twelve good men/women why does he think double jeopardy is a throwaway, and he can get it another time and another place? Obviously the guy had been convicted of something, he was an inmate in the county jail, but that something was irrelevant to what punishment he should receive for the crime in view, that must be decided on its own merits. That's why testimony about other crimes a person may have been convicted for is usually not allowed, except in rare instances where the judge believes it to be clear relevant.

                  As for Madoff, the judge apparently considered upholding the Constitution principal of presumption of innocence rather than give in to complaints about the unfairness of it all, mostly from people with no direct stake in the case in the first place.

      • Posted By: CBear @ 01/11/2009 12:10:15 PM

        Jarchar1, you seem to be the authority on rebutting and defending Madoff's efforts to distance himself from his assets - jewelry, cash in bank accounts and who knows what else. Perhaps you would be kind enough to explain why he is doing it. What is his motivation? Could it just be that he is doing exactly what what others have called it - frautulent transfer to keep it from his creditors? Maybe he is just a confused 70+ year old who knows he is toast. He's just not very smart about how he is doing it - call it stressed induced senile dementia. Whatever the motivation, the guy is trying to dispose of assets. Clearly this is sufficient cause for prosecutors to raise the question of whether he should be given the opportunity to continue his wrongful conduct. It is laughable to believe that Madoff wrongly thought his personal assets (heirlooms and cash) would not be eventually called upon to satisfy and creditor obigations owed after a successful criminal and civil prosecutions. Come on jarchar1, weigh in on this one with some reasoned analysis.

        • Posted By: jarcher1 @ 01/11/2009 6:17:10 PM

          Don't have a clue why. Don't read minds, but then neither does the prosecution. How long have the checks been made out? Prosecution doesn't say. Aren't his communications monitored? Isn't he guarded? Notice they did not say we caught him trying to take the checks out to mail, they were in his desk. Is it plausible to think that his mailing of jewelry during the holiday season was intended to give family and friends mementos to remember him by rather than a scheme to shelter assets? I couldn't say that's what he was thinking, but it is plausible.

          • Posted By: jarcher1 @ 01/11/2009 6:55:03 PM

            Additionally, I don't know about NY, but hereabouts, we have legal means to freeze accounts in cases of fraud or even bankruptcy. If NY doesn't have such a statue I would be greatly surprised. So Madoff confessed, what, a month ago? If those checks could be cashed, somebody is either grossly negligent or incompetent.

  • Posted By: chrisgIII @ 01/09/2009 3:11:14 PM

    He deserves to be behind bars like any other criminal. This man has destroyed people's lives and fortunes and you argue that he shouldn't be behind bars until trial?

    • Posted By: fairnessnow @ 01/12/2009 1:43:33 PM

      He does deserve to be behind bars, and has anyone realized that his apt in NY and Paris actually don't belong to him and the jewelry he was sending to family also doesn't belong to him....all of it...everything belongs to his victims...everything belonging to him, his children, his nieces, nephews, grandchildren and close friends should be frozen NOW. You know its all starting to leak away. It's also time to create new laws that call for the death penalty for these type of offenses. I was a victim of a Ponzi scheme earlier this year that has destroyed our lives, we've lost our home, our savings, everything and there is no chance on seeing our money again. The pain and suffering my family has endured is horrible, the banks don't care that I was a victim...this is NOT a victimless crime. People have lost their lives because of people like this...it's type to create a deterrent that has this end in America.

  • Posted By: joannm41 @ 01/12/2009 12:17:26 PM

    Finally, it's refreshing to hear someone has not lost sight of an individual's rights no matter what the situation. What is legal for one should be them for another. Lately, Ive seen to many "make up as you go" laws for one and not another. Thank you keeping this in perspective, I hope others will follow!

  • Posted By: sparkzz @ 01/11/2009 9:51:01 AM

    In a perfect world, Madoff would meet justice from the same people he screwed.

  • Posted By: hillauto @ 01/10/2009 6:39:38 PM

    BS If I was caught doing anything like him The courts would lock me up and throw away the key . He should be prosecuted under the Riko act and have all of his assets locked up . . Wait you will find that he is being protected as there are going to be other well connected people that are involved . Right know money is being buried . Assests dissapearing and family members being taken care of . . Kind of makes you want to be a crook doesn't it . Maybe we all should go on a crime spree and take everything thats not nailed down . Isn't that what all the anarchist preach . Madoff did what any crook would do . He fessed up when there was nothing else he could do . You can bet he had his kids turn him in so as to take the heat off them . I know most wouldn't agree but if
    artha Stuart did jail time this creep should get the chair . When he gets out of jail he will probably still have a better retirment then most working people . Lets hope that some of the people that are contmplating sucide because of him decide to take him with them . A little harsh you think . It's coddling to the rich that makes so many poor feel disenfranchised . I am not poor but when I see this type of Crap going on it makes me sick . Anke monitor my foot put the low life , bottom feeding creep in jail with pedophiles , child molesters , and maybe with a little luck a senator or two

    • Posted By: jarcher1 @ 01/11/2009 9:10:25 AM

      If he was prosecuted under the Rico Act, he'd walk. Doesn't seem to be a criminal conspiracy involved, it was a one man show. His assets are all locked up. People committing suicide because of the swindle is of course, regrettable, but bottom line, its the suicidee's personal decision, akin to a man committing suicide because his wife left him. You want to charge the exwife with causing the suicide? Despite all the posts in this thread that want say Madoff's very circumscribed "freedom" is the direct result of his wealth - which BTW, he doesn't have access to anymore, at least in any liquid form - I doubt that's the major reason he's still "free". I would imagine his age and the fact that his crime is nonviolent is a large part of the judge's consideration. As for all the posts that say he should suffer, because he's a rich guy that stole his money, I see that as an excellent reason not place him in a general prison population. I think many of the inmates would use the same "logic" and their idea of suffering might remove any possibility of further cooperation with the DOJ on Madoff's part.

  • Posted By: TomKirwin@cs.com @ 01/10/2009 6:56:51 PM

    Mark Gimein has made an excellent case for allowing release before trial. If he wishes to maintain a shred of integrity, it would behoove him to make it his life's work to make that a reality for the millions already affected with minimal resources. Once that is accomplished for the folks who do not enjoy multi-million dollar households and resources, we should BEGIN to worry about the Madoff's of the world.

  • Posted By: perrin @ 01/10/2009 6:01:43 PM

    What a twisted article. The statement "Capital cases have always been exempt from bail, creating an exception for the very worst crimes." was put in place to keep rapists and murderers from obtaining bail, not to protect them.

    Mr Mark Gimein from TheBigMoney.com the author of this story also thinks that bail bondsmen are corrupt for taking a huge risk with their own money to help people out of a jam as he states in "who get paid 15 percent of the bail, which they keep whatever the outcome???a cruelty that's hard to miss". All I can say is Mr Gimein would make a good criminal lawyer.

  • Posted By: perrin @ 01/10/2009 5:33:28 PM

    I could have waited until he was convicted. However, the brazen act of mailling assets when the courts went through the trouble of cutting him some slack the first time is a slap in the face to the judicail system, and that's how the court should view it. Can I get the same treatment on a blue collar salary? What a heap of $%##%

  • Posted By: doknukem @ 01/10/2009 8:08:47 AM

    it should not be as simple as this writer puts it. madoff will die in prison - unfortunately people will continue to suffer from his greed long after he's dead. he cannot be punished enough. in cases like this where guilt is certain, bail should not apply because the likely sentence will surpass life expectancy. i understand his point about monitoring and agree that its worth considering to replace bail but only in cases where the circumstances are not already definitive, like in the current case. but overall this is ridiculous and a waste of time to promote such a silly headline. i'll be sure to not take this writer seriously again. what you guys think.

    • Posted By: jarcher1 @ 01/10/2009 9:45:58 AM

      I think you missed the major point of the article. Its not about Madoff, he's just an example used. The major point is that the Constitutional protection against requiring excess bail has been circumvented so that the hand of the prosecution is strengthened. How is it only 34% of those charged in the federal system can make bail? Is that excessive bail or not? Is there really a presumption of innocence in such a system? Remember presumption of innocence is not about whether someone is actually guilty or innocent. I think everybody in the thread, myself included, would say Madoff is almost certainly guilty of massive fraud. Presumption of innocence is rather a set of processes and standards that apply to the charged in a criminal trial, like the burden of proof is on the state, the charged has a right to a legal defense, the standard of conviction is that the evidence must be beyond a reasonable doubt, etc. If the presumption of innocence is weakened its dangerous for anybody that might be charged with a crime, and that includes any of us. Think about it.

      • Posted By: gablegal @ 01/10/2009 3:24:21 PM

        But, again, these are extrodinary circumstances. Madoff can easily flee the country. He has the means to do it and wouldn't be the first rich,criminal to run from prosecution. Second, he couldn't make bail the way everyone else makes bail,so why is he entitled to special treatmen?. We have bail laws for a reason and each case is judged on it's own merit. It's not up to the prosecutors to set bail, they can only ask for it. It's up to arraignment judges to decide what is fair. They decide on each individual case, not with blanket rulings. I think the bail laws needed to be re-examined, simply because our forefathers never dreamed how easy it would become to flee jurisdiction in the event of a crime. Look at OJ.......he tried to flee and ended up in Men's Central Jail because of it. Ankle monitors are not fool-proof. Sorry , but there shouldn't be seperate laws for the wealthy.

        • Posted By: jarcher1 @ 01/10/2009 4:59:01 PM

          Indeed it is up to arraignment judges to decide what excessive bail is. That;s always been part of our court system. But the law and order politicians just can't stand presumption of innocence, so they go to tinkering:

          "In the federal courts, the only purpose of bail was to prevent flight, until the passage of the Bail Reform Act of 1984. Part of a package of tough crime legislation, the 1984 law changed the calculus of the presumption of bail, weakening the presumption that people should not be jailed until conviction. (Capital cases have always been exempt from bail, creating an exception for the very worst crimes.) The bill added the amorphous standard of danger to the community as a determining factor in setting bail. On top of that, in the intervening years federal judges began confiscating bail bonds not only for actual flight but for all sorts of violations, making it harder for defendants to find bondsmen (who get paid 15 percent of the bail, which they keep whatever the outcome???a cruelty that's hard to miss) to put up collateral."

          As for ankle monitors, nothing is foolproof, agreed. The court apparently felt that Madoff was enough of a flight risk to confine him to his apartment and place guards on him, a lot of people on bail are not so guarded and confined. But the kicker comes when we see prosecutors howling for revocation because Madoff sent personal effects to relatives and close friends. Sure it was stupid of him, and sure the victims of his scam are entitled to any restitution available. But we are talking about personal effects here what 3-4 million max? When the amount of the scam has been set at 50,000 million. This stuff's seizure and sale wouldn't even return large fractions of 1 cent for each dollar lost. So its a very minor issue in the case. Is this transgression enough to strip a man presumed innocent of his severely circumscribed "freedom?" Punishment, under our Constitution, is appropriate after conviction of a crime, not before.

  • Posted By: knightrider624 @ 01/10/2009 3:10:24 PM

    Oh great.....another articulate article to help us "simple folk" understand why the rich deserve better treatment than the rest of us. Bush, Cheney and Rumsfeld will get away with violating the constitution......and I'd be amazed if Madoof gets more than a slap on the wrist. Is there any doubt as to why we have all lost faith? The sad truth is that in America, we have government "By the rich and powerful .....for the rich and powerful".

  • Posted By: silversalmon @ 01/10/2009 3:07:54 PM

    Thank you bobcat, it's enough to know that we live in a pollyana society, but when the blinders have been removed, still behave as if there is nothing there.

  • Posted By: Kennyboi @ 01/10/2009 2:59:45 PM

    Hmmm, I was first wondering whether the writer was Jewish??? I really support what trogers posted below. First, I don't believe Madoff doesn't have an offshore accounts and assets (Pssst! Isreal could a country to consider) and I also don't believe the sons don't have any assets to hide...remember they first went to police and I believe they covered up their tracks before they went there. Oh and that "he couldn't find 10 million for his bail " is bull,.If he can't afford a 10 million bail but can write over 100 million in checks, then something is really wrong!! By the way, do people who visit Madoff get searched? A lot of valuables as well as checks could be taken out of his fabulous Manhattan homes as we speak. Jail him! Isn't that what is done to poor people who commit petty crime? Of course american justice is always blind and only see in green (bucks I mean). Maybe he won't be in jail at all ,remember Enron and 'Kenny Boy"? He died without going to jail and his get to keep all his assets!!
    My heart goes out to all the various nonprofit organizations, charities and especially families who have lost their retirements and inheritance. Times are tough as it is and to have rug pulled from under you in a cruel and callous manner
    is sad.

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