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Appeals panel criticizes prosecutor in Bernard Madoff case

Five former employees of imprisoned financier Bernard Madoff

Five former employees of imprisoned financier Bernard Madoff were convicted of conspiracy on Monday, March 24, 2014. From left to right: Director of Operations Daniel Bonventre, Computer Programmer Jerome O'Hara, Computer Programmer George Perez, Account Manager JoAnn Crupi and Secretary Annette Bongiorno. Credit: Bryan Smith, Charles Eckert

A panel of federal appeals judges on Tuesday expressed disapproval of a prosecutor’s references to the Godfather and the civil rights movement in a rebuttal summation urging a predominately minority jury to convict five Bernie Madoff aides in 2014.

“This is the last thing the jury heard before deliberations,” said 2nd U.S. Circuit Court of Appeals Judge John Walker. “Rebuttal has to be handled in a responsible way, and I’m not sure it was.”

Judge Reena Raggi asked why the prosecutor who made the “foolish” arguments — Randall Jackson, now in private practice — wasn’t present to answer for them, and questioned efforts to defend an approach the trial judge called “unworthy of the office.”

“We wonder if the government got the point,” Raggi said pointedly to Aimee Hector, arguing the case for Manhattan U.S. Attorney Preet Bharara’s office.

The exchange came during arguments in appeals by Madoff aides Annette Bongiorno, 67, of Manhasset; Joanne Crupi, 54, of Westfield, New Jersey; Daniel Bonventre, 69, of Manhattan; Jerome O’Hara, 53, of Malverne; and George Perez, 50, of East Brunswick, New Jersey.

The five were convicted of multiple conspiracy and fraud counts for helping Madoff pull off his epic $20 billion Ponzi scheme, or turning a blind eye to it. They are all serving federal prison sentences of between 2½ and 10 years. Madoff pleaded guilty in 2009 to charges stemming from the multibillion-dollar scheme and was sentenced to 150 years in federal prison.

Lawyers for the five contended the evidence was insufficient to show they weren’t just duped by Madoff and that prosecutors failed to turn over exculpatory evidence, in addition to targeting Jackson’s rebuttal — the final argument to the jury after prosecutors have spoken once and the defense has responded.

Courts generally favor logical analysis of evidence over emotional appeals. The defense argued Jackson improperly belittled their arguments as “absurd,” compared the five to arsonists, drug dealers, “The Sopranos,” gangster Michael Corleone and the Charlie Sheen character in “Wall Street,” and used race by citing civil rights heroes like Thurgood Marshall.

“That crosses the line,” Andrew Frisch, Bonventre’s lawyer, told the judges, arguing it was an effort to spawn resentment of five well-off white defendants. “ . . . The entire rebuttal was an appeal to emotion.”

Hector said Jackson invoked the civil rights movement to encourage the jury to have the “courage” to convict only after the defense asked jurors to show courage by acquitting despite a public outcry, but she also gave a nod to the judges’ complaints.

“We hear that criticism,” she told Raggi. “In hindsight, may we have made different choices? Perhaps. But when you look at this . . . the arguments are not improper.”

Despite the judges’ complaints, they also noted that the defense faced a high burden to show that a prosecutor’s arguments had infected the jury, particularly in light of Judge Laura Swain’s repeated admonitions to Jackson and the jury about focusing on evidence.

“If the government prevails,” Raggi told Hector, “it’s because Judge Swain mitigated the harm with the instructions, not because the arguments were permissible.”

The judges took the case under advisement and gave no indication when they will decide.

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