- Five were convicted of aiding in $17.5 billion Ponzi scheme
- Defense attacks style of lead prosecutor Randall Jackson
Five former Bernard Madoff employees who were convicted of aiding the con man’s $17.5 billion fraud asked for a new trial, arguing that the lead prosecutor, who is black, improperly alluded to race when he asked the mostly minority jury to have the “courage” to convict.
Lawyers for the ex-colleagues, who are white, appeared Tuesday in a packed federal appeals court in Manhattan seeking to have their convictions thrown out or altered two years after they were found guilty on all counts by a New York jury. They made claims against the government including prosecutorial misconduct and a lack of evidence.
The defense singled out former Assistant U.S. Attorney Randall Jackson, who drew objections from lawyers for raising his voice during the five-month trial and whose performance was later praised by some jurors. During his closing arguments, in which he urged jurors to do the right thing, Jackson noted that the jury assembly room in the courthouse was named after Constance Baker Motley, a civil rights activist and the first black woman federal judge. U.S. District Judge Laura Taylor Swain, who oversaw the trial, is also black. The defense lawyers are all white.
“The entire rebuttal was an appeal to visceral emotion,” said Andrew Frisch, the defense attorney for ex-Madoff operations chief Daniel Bonventre. “That’s a step too far.”
Frisch said Jackson’s references to Motley’s civil rights-era work in courtrooms in the U.S. South, and her desire to apply the rule of law equally, was “abominable” in the context of the Madoff fraud.
“The unspoken but unmistakable subtext was that the jury -- composed of six African-Americans and one Latino -- should not permit the well-paid, white defendants to escape the equal rule of law that Judge Motley fought hard to bring to fruition,” Frisch said.
At least one judge on the three-judge appeals court panel, Reena Raggi, was skeptical of the defense stance, saying, “It seems like a foolish argument.”
The hearing is the latest development in a fraud that came to light with Madoff’s arrest in December 2008, spawning a wide-ranging criminal case, a contentious bankruptcy and countless civil cases still winding through court. Madoff, 77, pleaded guilty and is serving a 150-year term, while more than a dozen others were prosecuted. Irving Picard, the trustee hired to wind down Madoff’s firm, has repaid about $9.2 billion to victims.
The defense attorneys also claimed in appeals court filings that Jackson was inflammatory during the trial when he compared Madoff to an imaginary “Bernie Claus” and the defendants to children who pretended to believe in him to get presents. Frisch added that Jackson had evoked a “veiled innuendo” referring to Bonventre’s Italian-American heritage by making references to the behavior of criminals in “The Godfather” and “The Sopranos.”
Assistant U.S. Attorney Aimee Hector argued that Jackson’s language was strong but not inappropriate. She acknowledged that in retrospect a different argument might have been made, but that prosecutors have their own style.
She said the remarks alluding to race were just a small part of a closing statement that focused mostly on the extensive evidence presented at trial, including thousands of fake and backdated trades, false customer account statements and bogus computer codes.
Calls for Courage
Hector also said Jackson’s reference to “courage” was justified because it was made in response to defense attorneys’ asking the jury to have the courage to make an unpopular decision and acquit defendants who were hated by the public.
Swain previously criticized Jackson in a ruling that upheld the convictions while calling his racial references “at best ambiguous and at worst unfathomable.” Regardless, she sentenced the five former colleagues to prison terms ranging from 2 1/2 years to 10 years. The terms were less than half the time sought by the government. The U.S. last year dropped an appeal aiming to increase the sentences.
Jackson, a graduate of Harvard Law School and Morehouse College, and the two other prosecutors on the Madoff case all left the U.S. Attorney’s Office after the trial to join Boies, Schiller & Flexner LLP in New York.
The other defendants are Annette Bongiorno, who ran the investment advisory unit at the center of the fraud; Joann Crupi, who managed large accounts; and computer programmers George Perez and Jerome O’Hara, accused of automating the scam as it grew rapidly in the 1990s.