New York Federal Criminal Practice Blog
June 24, 2009

SDNY Judge Unseals Emails from Madoff Victims

It’s bad enough to have been an investor with Bernie Madoff, but to have that investment decision ridiculed in the press adds insult to injury.  And there’s the rub – or at least one of them – for Madoff’s victims: how to achieve some catharsis through Madoff’s sentence, while avoiding any uncomfortable and embarrassing public scrutiny.  S.D.N.Y. Judge Chin’s response has been clear.  If Madoff’s victims want to have their say on his sentence, they must do so in public.  In an order dated May 20, 2009, Judge Chin advised victims that they may submit “written statements” as part of their right to be “reasonably heard” at sentencing and may email the government if they wish to be heard orally at sentencing, but they should  know that these letters and emails “will be made part of the public record.”  His order reflects the tension between the public’s right of access to judicial documents (which include victims’ emails solicited by the court) and the victims’ right to privacy, something which must be “respect[ed]” under the Justice for All Act of 2004.  

Victims’ Privacy vs. Public’s Right of Access

The intersection of these competing issues is the subject of a notable decision by Judge Chin on the disclosure of victims’ emails he received prior to Madoff’s guilty plea, United States v. Madoff, 2009 WL 1678097 (S.D.N.Y. June 17, 2009).  Prior to that plea, the court had issued an order advising victims how they “could express their desire to be heard on the issues raised in this case.”  Subsequently, several news organizations sought access to the emails sent in response to this order, including all identifying information on the emails.  Since he had not previously warned the authors that their communication may be disclosed, Judge Chin directed the government to canvas the authors’ views on disclosure.  Some wanted to maintain their privacy, some were happy to go public, and most didn’t respond at all.  Reviewing the law on access to judicial documents and the right to privacy, the court concluded that identifying information would be sealed as to emails where their authors asserted their right to privacy, but where the authors didn’t bother to respond, the entirety of the email, including identifying information, would be disclosed.  “Given the victims’ opportunity to object, the very public nature of the case, and the sentiments expressed in many of the emails, I conclude that the presumption of access outweighs the privacy interests of the victims who did not object to the unsealing of their correspondence.”  In the same decision, Judge Chin ruled that other documents would remain under seal where disclosure could jeopardize the government’s efforts to recover assets for victims.  


This is an important case on a victim’s right to privacy and to advance notice of public disclosure of communications with the court.  It is also an important case for defendants, since there is no suggestion in Judge Chin’s decision that victims’ letters submitted to him in connection with the actual sentencing should be anything but publicly disclosed in their entirety, along with all identifying information.  Victims’ letters can have a searing impact at sentencing.  At least if subject to the crucible of public scrutiny, the authors may temper some of their (understandable) raw emotion and desire for revenge.

Lawyers: Indira Satyendra (ABC, Inc.); Hilary Lane (NBC Universal, Inc.); Carlotta Cassidy, Esq.(Fox News Network, LLC); AUSAs Lisa Baroni, Sharon Frase.

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