Over at Simple Justice, Scott Greenfield has some shrewd and perceptive comments on what Madoff's plea allocution suggests the government is giving him in exchange for his early plea. Scott's key observation:
So it appears that the government, in its statement that there was no deal, is actually playing it a little fast and loose. There was a deal here, and the deal was that Madoff would waive indictment and plead to an information provided that the information did not include a conspiracy. Granted, it isn't much of a deal, but it is a deal nonetheless. It seems that the government has been less than forthright about it, perhaps redefining "deal" to suit a desire to conceal the agreement not to include conspiracy in the 11 count information.
All of this begs the next question, which is whether this plan will work. That depends entirely on the government's willingness to play ball, or continue to play ball now that the plea has been taken. There is nothing that prohibits the government from indicting Madoff co-conspirators, assuming that evidence exists that this scheme was perpetrated by someone along with Madoff. Whether Madoff can be prosecuted for the conspiracy, in addition to the charges already levied and accepted, will depend upon the nature of the conspiracy and Department of Justice policies. But indicting Madoff is unnecessary for the purpose of charging a conspiracy.
Like Scott, I haven't read anything suggesting that the government has given Madoff enforceable assurances that his family won't be prosecuted or that his entire business empire won't be pursued as part and parcel of the fraud. I doubt that the government would offer such assurances: it has little incentive to do so, and it would be politically unpalatable. That said, it's entirely possible that government lawyers have given off-the-record, wink-and-nod assurances. Experienced defense attorneys know that such assurances are unenforceable and illusory, especially in high-stakes, career-making cases. However, sometimes a client's situation is so dire that they are better than nothing.
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