Former Madoff aides claim race-baiting in conviction appeal

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 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 trial and whose performance was later praised by some jurors. During his closing arguments at the end of the five-month trial, 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. Jackson also noted that the judge who oversaw the Madoff trial, U.S. District Judge Laura Taylor Swain, who is also black, had been a clerk for Judge Motley. He urged jurors to have the courage to convict.

‘Visceral emotion’

“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.”

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 that are still winding through court.

Madoff 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.

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.

Prosecutor criticized

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.