Bernie’s in Jail, But Will He Stay There?

[WSJ_law_blog]

Earlier today, Judge Denny Chin revoked Bernie Madoff’s bail and ordered him straight to the Manhattan Correctional Center in lower Manhattan, described on its Web site as an “administrative facility housing male and female pre-trial and holdover inmates.” Madoff will likely stay there until June 16 — the date of his sentencing and the 105th anniversary of Leopold Bloom’s famous walk through Dublin. (We’re not sure what the connection is here, but any Ulysses buffs out there, feel free to let us know.)

However, Madoff’s lawyer, Ike Sorkin, earlier today indicated he intended to appeal the bail order to the Second Circuit. The move sounded a little strange to us, given what we learned about bail yesterday.

Still, we decided to look into the issue, to figure out if Madoff is likely to see the inside of his apartment again. We called Orrick partner McGregor Scott, the former U.S. Attorney in Sacramento, to find out.

Hi Greg, what are your thoughts on the bail issue?

Under federal law, the presumption is that once the defendant enters a guilty plea, he or she is remanded into custody unless district judge makes a finding that the person does not pose a flight risk or is a danger to the community. The bottom line is that once someone enters a guilty plea, burden shifts to the defense and absent that showing, he goes to jail.

Sounds like you think an appeal on this issue is a longshot, eh?

Well, appellate courts typically give great discretion to the district court judge in this type of situation. Frankly, it’s very difficult to see any set of circumstances under which the Second Circuit would reverse Judge Chin on this.

Let’s play devil’s advocate for a minute. Can’t Madoff’s lawyers argue that he’s already proven that he’s not a flight risk or that he poses a danger to society? After all, didn’t he play by the rules over the past few months?

Well, they can, but I just don’t see it. He’s in a different place now, he’s been convicted of a massive fraud. The government is looking to recoup $170 billion, so it probably thinks he still has access to great amounts of money that he theoretically use to flee the country.

Sounds like you think this is a done deal?

Looks like it, I’m afraid.

Thanks for taking the time.

My pleasure.