Legal News

Should a Victim?s Tale of Woe Move a Judge? The Impact of a Letter

By Jennifer Forsyth

How much weight should a judge give emotional appeals from victims during a defendant’s sentencing? This question has taken on added meaning since 2005 when the Supreme Court ruled that federal sentencing guidelines were merely advisory.

For Bernard Madoff’s sentence, Judge Denny Chin (left) didn’t depart from the guidelines, but he sure handed down the max–150 years for the 11 counts to which he plead guilty–and it appears that at least one victim statement was involved in the judge’s decision.

Chin, of course, cited other factors, as well. He said he didn't believe Madoff when he claimed the fraud began in the early 1990s, and that it must have begun earlier. He said he believed Madoff didn't fully cooperate with the government, and quoted the trustee of the defunct Madoff firm, who said Mr. Madoff has "not been helpful" in the trustee's search for assets. Judge Chin said he had "a sense that [Mr. Madoff] didn't do all that he could or told all that he knows" about the fraud since his arrest.

But the judge also appears to have been moved by the victims’ tales of woe. More than 100 victims of Bernard Madoff’s enormous Ponzi scheme wrote letters to Judge Denny Chin with their stories before today’s sentencing. One particular note apparently moved him a great deal.

Judge Chin cited a letter written by Norma Hill, of Armonk, N.Y., shortly before he handed down the sentence. (The judge didn’t identify Hill but he provided enough detail that it was evident which letter was hers.) Twenty-one years ago, Hill’s husband had entrusted their life savings to Madoff, she wrote. Just weeks later, her husband died. Hill went to speak with Madoff, who "appeared to be a genuine, kind man. He put his arm around my shoulder and assured me that my money was safe and I should not worry," the letter says.

In the Madoff case, listening to such appeals was probably justified, one experts says. "I would think in general, fairly little weight should be given to claims of victims," says John Coffee, a law professor at Columbia University who specializes in white-collar crime. "In the Enron and WorldCom scandals, there were very dispersed losses visited upon shareholders," many of whom were institutional or diversified investors.

However, in the Madoff case, taking victims' stories into account "makes much more sense. This is the unique case where extraordinary losses were visited upon identifiable people who each suffered life-changing losses," Coffee said. Also, he says, unlike many other crimes, the victims' pain was "foreseeable to the defendant, who knew that their life savings were sooner or later going to be lost."

Full post as published by Law Blog - WSJ.com on June 29, 2009 (boomark / email).