Thursday, June 10, 2010

Parsing the Rothstein Sentence.



David Brooks, typically a reductionist dodo who sees the world in two shades of binary, actually wrote an insightful column the other day on the virtues of the humanities and their application to the business world.

In particular, Brooks noted the power of analogies:
Studying the humanities will give you a wealth of analogies. People think by comparison — Iraq is either like Vietnam or Bosnia; your boss is like Narcissus or Solon. People who have a wealth of analogies in their minds can think more precisely than those with few analogies. If you go through college without reading Thucydides, Herodotus and Gibbon, you’ll have been cheated out of a great repertoire of comparisons.
I think there's some merit to this.

I put up a picture from Save the Tiger yesterday because I found echoes of Harry Stoner in Rothstein's letter and Nurik's presentation to the Court.

Save the Tiger is one of the better films to examine the tensions between business, morality, success, idealism, and manhood set amid the backdrop of the moral and ethical conflicts raging in America in the early 70s.

Harry Stoner, a WWII hero who helped liberate Italy at Anzio Beach, is an upwardly mobile garment manufacturer living the "American dream." Yet appearances are deceiving. His relationship with his wife is strained, his business is overextended and failing, and his reality is increasingly fractured by memories of his dead war buddies, the 1939 lineup of his treasured Dodgers, and glimpses of his idealistic youth, particularly his years playing baseball, drumming with a big band and listening to swing music.

The counterculture and the decaying values of Vietnam-era America meet Harry Stoner's sliding immorality head-on, as Harry is faced continually with business decisions that weaken him morally and challenge him ethically, until his fragile efforts at holding it all together rip apart at the seams.

Scott's self-described tale is similar -- from Hebrew school to playing guitar in high school to forming a firm with Stu to seventy lawyers, no business, and an ever-increasing and all-consuming Ponzi scheme, Scott faced the same choices lawyers and businessmen grapple with daily -- how to live a moral life and yet still achieve success, respect, and happiness.

Clearly Scott blew it. But like Harry Stoner, Scott's demise was the product of a million small decisions, each of them wrong.

Judge Cohn focused especially on forging judicial orders:
"He forged these court orders to perpetuate the Ponzi scheme,'' the judge said. "There can be no conduct more reviled than a lawyer perpetrating a fraud on the court.''
Actually, there is conduct more reviled that lawyers could engage in -- Scott could have killed someone, for example.

Is 50 years too much? Rump thinks so, and David says it will probably be less after the Rule 35 reduction hearing.

In order to answer that question, we need to know the point of the sentence.

Personally, I can't figure out the relationship between crime and the sentencing guidelines -- are they punitive, rehabilitative, preventative, arbitrary, or some mix of them all?

We sentence hundreds of thousands of people to lengthy sentences for distributing various forms of Soma -- does that make sense?

I'd like to think however long Scott spends in prison, he will have an opportunity to spend a portion of his remaining years outside of a prison cell, but I can't put my finger on why I think that.

Maybe Harry Stoner put it best -- "The government has a word for survival. It's called fraud."

Scott's going to learn survival first-hand.

18 comments:

  1. "typically a reductionist dodo who sees the world in two shades of binary"

    Nicely put.

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  2. "We sentence hundreds of thousands of people to lengthy sentences for distributing various forms of Soma -- does that make sense?"

    No, it doesn't. Especially when the the CIA are the biggest distributors.

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  3. Very nice post, but I think you left out the salutary effect that a harsh sentence should have on anyone who contemplates a similar scheme. I recently spoke with a Canadian judge about why Canadian citizens seem to be punching above their weight in terms of international fraud scams. His frank response was that he and his fellow judges didn't have the latitude to impose the kinds of sentences that could have a deterrent effect.

    As to Judge Cohn's sentence of Rothstein, I agree with David in that Cohn may be ultimately targeting the prosecution's recommendation of 40 years, after post-conviction motions are all decided.

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  4. Give me a break, he got less than he deserved. How many of you bloggers would be complaining about the severity of his punishment if Rothstein was black or hispanic?

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  5. Didn't Scott provide hookers to clients just like Stoner?

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  6. Rothstein didn't kill anyone, he didn’t' maim anyone, he didn't rape anyone, and he didn't molest any minors. He stole money, plain and simple. A life sentence (because that what it is in effect) for money? His sentence was WAY too high.

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  7. As someone who isn't a lawyer, I must ask this question.

    Rothstein is 49 years old. If he had gotten a 30 year sentence and served every day of it, he'd be 89 when he got out.

    What's the point of a longer sentence?

    Pointless overkill, it seems.

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  8. Bill: You must be a lawyer, because your math is off by ten years.

    Anon at 12:41: You don't think that a major scam artist causes harm that goes beyond the mere taking of money? What about undermining confidence in the judiciary, or in the financial system as a whole? Aren't those harms that affect us all?

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  9. http://www.abevigoda.com/

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  10. @swilip

    haha.

    ok, so he'd be 79....if he lives that long.

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  11. swlip:

    Anon 12:41 here. I understand the harm that Rothstein caused and do not discount your point. However, I simply cannot reconcile how someone like Robert Caragol (a high school swim coach found to have child pornography on his computer, and who admitted to have sex with minors-look it up on S.D.Fla. PACER-2009 case) gets 10 years after touching kids' cocks, but Rothstein gets 50 years.

    You really think that what Rothstein did deserves a sentence five times higher than that given a man who admitted to sexual intercourse with minors, and who was found with child pornography on his computer?

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  12. Anon 12:41 here again.

    While I am not a criminal law guy, it is my understanding (anecdotally) that violent criminals regularly get sentenced to a fraction of the time Rothstein got. I just can't agree that a money crime, even on Rothstein's level compares to violent crime.

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  13. Anon: I wouldn't argue with the fact that we have some absurd sentencing disparities in this country. My point was more directly addressed to what punishment Rothstein's offenses merit on their own terms.

    These are not easy questions, but the social damage wreaked by Rothstein merits a strong sentence, imo. Moreover, as noted by David Markus, 50 years is unlikely to reflect the final sentence.

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  14. I think what so many people fail to realize is Judge Cohn's message behind the 50 year sentence, which is the real chilling effect here. Rothstein was a lawyer, not just a white collar criminal businessman. He took an oath that all of us lawyers take when we are sworn into the Fla Bar. As officers of the court we are to respect the court and honor it at a greater standard than a lay person would. He desecrated the very fibers of this profession. Cohn sentenced Rothstein to more years than the prosecutors asked for because Rothstein FORGED court orders. He perpetrated fraud upon the court.

    I read Rothstein's 12 page letter to Cohn. It's sad that his greed and his insecurity about failing got the best of him. I feel bad for the guy because he has serious emotional problems, but he is not the only lawyer who does. I worked at a very large firm nearby and the head partners were just as greedy, selfish and bastardly as Rothstein. He just got caught 5 yrs later. He lived like a baller and now he's going to spend the rest of his life wishing he had either pulled the trigger or stayed overseas with the $16 million. He will never be able to live a clean life even if he is in a witness protection program. He will not have the freedom that the rest of us do or the luxuries he had. That in of itself is a greater punishment for him. To go from what he had to what he has now is the wakeup call. Cohn knew Rothstein will not serve the 50 years. It was for shock value and to send shock waves to the legal community to make a point that perpetrating fraud upon the court is the most egregious crime that a lawyer can do. This isn't about Rothstein not being a murderer, rapist or drug dealer. Generally, rapists, murders and drug dealers aren't lawyers and they aren't living the lifestyle that Rothstein was living.

    The crazier part in this is going to be discovering which of the lawyers and staff in the firm knew about his behavior. For one, the CFO was aware and she is sitting with a guilty plead of money laundering. Her sentencing is tomorrow. Other people had to know what was going on. They've all remained silent at this point. But believe me, Rothstein is going to throw all of them under the bus to lesson his sentence.

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  15. I meant "guilty plea" not "guilty plead."

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  16. Rothstein's letter says it was clear they didn't have the business to sustain the firm, so do the math.

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  17. Anon 514:

    You say "I think what so many people fail to realize is Judge Cohn's message behind the 50 year sentence." I disagree. Everyone here, on all sides of the discussion, understands the Judge's message. Most of us have read the newspaper or even the Court filings and know the salient facts. We are not idiots. We just come to different conclusions based on our personal sense of justice and morality. I for one, well aware of the fact, think that the sentence is excessive. I will never be convinced that a man who committed Rothstein’s crimes deserves a longer prison sentence than (or even one on par with) a rapist, a child molester, or a killer. My values tell me that money is less important than human life. Thus, financial crimes, even those involving “fraud on the court” pale in comparison.

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  18. I cant believe people think this sentence is too harsh. The guy stole over a billion dollars and forged federal documents. He got what he deserved. The sentence may get reduced from what I hear but I also hear that because its a federal sentence he has to serve 85% of it which means he's getting 42.5 years minimal. Every minute is deserved. And what a moron lawyer he must have to convince him to come back from Morocco. I'd have taken the $16M and the arm full of watches and never have been heard of again...

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