Madoff's smirk is gone

In December, he looked the part of a $50 billion villain; now, on the verge of pleading guilty to the biggest swindle in history, he looks like a man who is grieving.

By Nicholas Varchaver, James Bandler, and Doris Burke

NEW YORK (Fortune) -- The Bernie Madoff who'll plead guilty Thursday to the biggest swindle in history is a shrunken figure. Madoff, of course, made his media debut as a $50 billion villain in December, fending off a scrum of camerapeople outside his New York apartment building and vigorously pushing back when one of them shoved him. Back then, in his baseball cap and quilted jacket, Madoff looked decades younger than his 70 years. Many who saw Madoff on video that day perceived him to be insouciant, or even smirking.

But the effect was completely different Tuesday. When reporters were admitted to the courtroom, about 20 minutes before a hearing in which Madoff told the judge that he wanted his lawyer Ira Lee Sorkin to continue on the case despite potential conflicts of interests, Madoff was alone at the defense table. He sat in what seemed at first like utter stillness, seemingly small and noticeably more aged than he had been a few months ago. Wearing his trademark charcoal-gray suit and black tie, Madoff looked like a man who was grieving.

From ten feet away in the jury box, where a handful of reporters were seated, one could detect what looked like turbulent currents under the placid exterior. Even with his eyes closed, Madoff blinked furiously at moments, his eyebrows leaping above the top of his rimless glasses. His hands betrayed his tension: At times, he gripped and twisted his pen; he cracked his knuckles; he steepled his hands so hard that his fingers trembled.

When Judge Denny Chin entered the courtroom shortly after 3 p.m., Madoff rose and was dwarfed by the attorneys who flanked him. Within minutes, Madoff was asked to stand again, was sworn in, and for 15 minutes, he answered questions from the judge. Madoff managed to look dignified, even in responding to questions on whether he'd ever been hospitalized for mental illness or whether he was taking any medicine or drugs (the answers were no on all scores) that might impair his ability to make a reasoned judgment on his lawyer's potential conflicts.

Throughout the question-and-answer session, Madoff stood bolt upright, four fingers of each hand resting on the table in front of him. Judge Chin reeled off a list of theoretical scenarios in which Madoff's lawyer could have "divided loyalties," "a potential conflict of interest," or "might have limitations on cross-examining" certain witnesses. Madoff disavowed any concerns in quiet, brief answers. The judge asked him if he'd obtained independent counsel to advise him on whether he should keep his original lawyer. (He had.) Chin asked Madoff if he wanted more time to think about it. Madoff said he didn't. The effect was of a person resigned to his fate.

Madoff was sitting again by the time his counsel, Sorkin, said it was a "fair expectation" that Madoff will plead guilty tomorrow. The defendant remained in his seat as prosecutors explained that they will seek a 150-year sentence and the judge emphasized that this is not a plea bargain, but rather, that Madoff is pleading guilty to all 11 counts in the feds' case against him.

Those discussions made the conflict-of-interest hearing unexpectedly dramatic. But there may be more emotion on Thursday. Madoff will be required to speak once again, this time in the legal process known as "allocution." Defendants are generally not permitted simply to plead guilty; they have to explain exactly what they did wrong (the notion being that a defendant can't later claim that he didn't understand what he was admitting to).

And so Thursday's hearing should offer an even-more-revealing glimpse of Madoff. Will he apologize? Will he express contrition? Indeed, the session may provide the closest thing to a trial in this case, a sort of condensed capsule of guilt and punishment. Madoff will explain--at least in general terms--what he did. And though the judge won't formally sentence Madoff for months, he could revoke Madoff's bail and send him to jail for the first time. After all, sometime after 10 a.m. tomorrow, Madoff will be transformed from an "alleged" Ponzi scammer, in media parlance, into an "admitted" Ponzi scammer. To top of page

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