THE BLOG
08/08/2009 05:12 am ET Updated May 25, 2011

Play It Again Bernie

Bernie Madoff's sentencing was a splendid event, with all parties acting out their pre-ordained roles. The victims were appropriately bathed in pathos and bathos, the federal prosecutor's index finger was stiff for days from the pointing and jabbing, defense counsel listlessly begged for mercy, Madoff himself profusely apologized (too little! too late!) and Judge Denny Chin unsheathed his mighty sword of justice skewering the hapless and haggard Madoff with 150 years. The selected victims (small investors who lost their life savings; the bigger, corporate mega-millionaires decided not to show for this part of the play) were the picture of catharsis afterward. Since there is no parole in the federal system, and only 15% off for good behavior, Madoff's expected release date is 2136. "Live a long life, Bernie," they sneered. Madoff led away, curtain comes down, fade to black, show is over. Madoff finished, justice served.

Maybe. My bet, based on both experience and a couple of drops of information, is that Madoff has no intention of dying in prison, and has one last scam up the sleeve of his baggy prison jumpsuit.

Consider this: The cardinal principle of American justice is that there is no one too evil to make a deal with. There are no crimes too heinous to be forgiven, assuming the evil doer joins Team America and provides the government with "substantial assistance" in convicting other people. The most trenchant example of this principle was demonstrated a few years ago, when Salvatore "Sammy the Bull" Gravano received only 4 1/2 years for 19 murders. He even got to keep the money he stole and was rewarded with a new identity and relocation. (Full disclosure--after his relocation to Arizona, he committed a number of other crimes and planned a particularly horrible one--the murder of me. But that is another story and i do believe Mr. Gravano and I have smoothed out that bumpy part in our relationship). But I digress.

Rule 35 of the Federal Rules of Criminal Procedure permits the Government to make a motion for sentence reduction at any time, like, for example, in a few years when the public outrage over Madoff has passed. And Madoff almost certainly can provide valuable information and testimony about the other scum on Wall Street whose activities have not been exactly kosher, Madoff surely knows who scammed whom, and how. Indeed, Madoff's high level involvement in massive fraud will make him a particularly valuable source of information. In the worlds of federal law enforcement, the worse you are, the better the deal you can make.
The government regularly insures that life sentenced are cut to a few years once the miscreant mass-murderer has helped convict others of his ilk.

Support for my theory that we will again see an Act II, featuring Madoff in a suit and tie as a repentant witness for the prosecution, also comes from the strange circumstances under which Madoff entered his guilty plea. Recall that Madoff was free on bail, living quite comfortably in his penthouse. It would have been easy for his attorneys to delay the start of the trial for years; perhaps many years. Perhaps until Berrnie died quietly in his sumptuous sheets. Once he entered his guilty plea, it was certain that he would go into prison. It was also certain that, given the climate of the times, he would get the maximum sentence, or close enough. Bernie received no benefit for his guilty plea--no promise of a lesser sentence or agreement that the government would not pursue his loved ones, assuming the same actually exist. If you were told that you faced a life sentence, that you could begin now or many years in the future, what would you do?

Now maybe I am wrong. Maybe Bernie decided to plead guilty because he is genuinely sorry for the harm he did, and he knows the only way he can begin to expiate his sins is through imprisonment. But he just does not strike me as that kind of guy. He strikes me as the kind of guy who knows that the sooner he goes in, the sooner he can get out. The only people gullible enough to think that Bernie Madoff voluntarily walked into a life sentence are those who were gullible enough to invest with him. It kinda fits.