William & Mary Law Professor Jayne Barnard was in the Manhattan courtroom where Bernard Madoff, architect of the largest Ponzi scheme in Wall Street history, received a sentence of 150 years in prison Monday from U.S. District Judge Denny Chin. Before learning of his sentence, Madoff had to first face nine of the people he defrauded. That these nine victims had the right to tell their story in court before the judge pronounced Madoff’s sentence was a consequence of an advocacy effort by Barnard that began as an academic proposal she authored in 2001.
Barnard's unique expertise in the case has also grabbed the interest of national media. She was quoted in Tuesday's Wall Street Journal and a Reuters wire article ran in major outlets such as Britain's Guardian newspaper and Yahoo News. Barnard was also quoted in advance stories in the L.A. Times, Reuters, and Newsday. An op-ed by Barnard ran July 2 in the Richmond Times-Dispatch.
Barnard was the first to propose that people harmed by economic crimes should be able to present victim-impact testimony (also known as victim allocution) prior to sentencing. Her proposal was published in the Notre Dame Law Review. When she wrote the article, she recalls, “the law required judges in federal court to hear victim -impact statements in crimes involving physical harm such as rape and assault,” However, federal law at the time did not require judges to hear victim-impact statements in cases involving fraud.
Ultimately, in 2004, Congress passed the Crime Victims Rights Act that established the right of victim allocution for victims of all federal crimes. That statute can be traced, in part, to an act of professional collegiality at William & Mary Law School, Barnard says. She recalls that she asked federal Magistrate Judge Tommy Miller, a colleague who teaches at the law school as an adjunct professor, to put her proposal before a judicial committee on which he served. Judge Miller, she says, wasn’t enthusiastic about her proposal at the time but “was a wonderful colleague” and placed it before the committee, which agreed with her arguments. The committee’s endorsement set her proposal on the path that eventually led to changing the rules to make victim allocution available in all federal cases.
Barnard was moved to act, she recalls, because of her conviction that the law “ought to recognize that many fraud victims suffer in physical, emotional, and social ways as well as financially. It is not just about the money.” In addition, the right to tell one’s story in court, according to Barnard, is important for both judge and victim. “If judges don’t really have to look in the eyes of someone who has lost everything, they may discount the hardship the defendant has imposed. In addition, many victims want to look their victimizer in the eye and say ‘this is what you have done to me.’ It can help dispel the stigma of having been a fraud victim.”
When she learned that Madoff’s sentencing hearing had been postponed to June 29 to accommodate victims’ impact statements, she wrote to Judge Chin requesting a reserved seat in his courtroom. Impact statements were filed by 113 of Madoff’s victims and nine of the 113 have requested time to speak to the judge at the hearing. Barnard says she had no previous contact with Judge Chin and that the letter was just a “cold call” in which she described the proposal she had published in 2001 and expressed to him her interest in seeing how her advocacy on behalf of fraud victims “played out in the real world.”
Barnard is the James Goold Cutler Professor of Law and the Herbert V. Kelly, Sr., Professor of Teaching Excellence at William & Mary Law School. She has written about white-collar crime, securities regulation, corporate finance, and behavioral economics.
Barnard blogged her experience in Monday's courtroom on The Conglomerate.org, a website that covers business and law.