NEW YORK (AP) — Federal appeals judges challenged a prosecutor on Tuesday to admit the government might have gone too far when it alluded to the 1960s struggle against racial injustice in urging a mixed-race jury to have the courage to convict five former employees of Wall Street swindler Bernard Madoff in his massive fraud.
Assistant U.S. Attorney Aimee Hector took the questioning in stride, saying the government might have been more creative in its word choice but the arguments were proper.
Hector was repeatedly challenged by three judges of the 2nd U.S. Circuit Court of Appeals, which did not immediately rule whether it will uphold the convictions of the ex-employees, including Madoff's longtime secretary, Annette Bongiorno, along with Daniel Bonventre, his former director of operations, and ex-account manager JoAnn Crupi.
Circuit Judge John Walker noted that the rebuttal arguments by prosecutors before the 2014 verdict were the last thing jurors heard before voting to convict all the defendants after a six-month trial.
"Rebuttal has to be handled in a very responsible way," he said.
Hector said racial references including to a pioneering civil rights lawyer who became a Manhattan federal court judge were relevant and made to counter defense arguments that touched on biases. She noted that they took up less than two pages of a lengthy transcript.
"There is no one right way to approach rebuttal," Hector said.
"There are wrong ways," Circuit Judge Reena Raggi snapped in response. She also noted that trial judge Laura Taylor Swain in Manhattan had offered an "extraordinary criticism" of the government's closing argument when she refused to toss out the verdict in July 2014.
"Many of the remarks made in the rebuttal summation were ill-conceived and unworthy of the institutional stature of the United States Attorney's Office," Swain wrote.
The judge added that the government would have done better to focus on evidence rather than repeating "derogatory generalizations and wandering into peculiar similes."
Repeatedly challenged to say whether prosecutors would deliver a similar closing again, Hector acknowledged that Swain's opinion was "strongly worded."
"There is criticism, and we hear that criticism. In hindsight, maybe we would have made different arguments," said Hector, who was not a prosecutor at the trial. "We certainly always strive to do our best."
The former Madoff employees, including two computer programmers, were sentenced in 2014 to prison sentences ranging from 2 1/2 years to 10 years in prison by Swain, who concluded none of them was aware of the extent of Madoff's multi-decade fraud, which cost thousands of investors nearly $20 billion. Each could have faced up to life in prison.
Madoff, 77, revealed his fraud in December 2008 and pleaded guilty to fraud charges in 2009. He's serving a 150-year prison sentence.
Defense attorney Andrew Frisch had asked the appeals judges to toss out the employees' convictions, saying the rebuttal by a prosecutor who has since left the office for private practice was a "visceral appeal to our emotions and prejudices."