Defending the Indefensible? Sam Bankman-Fried’s Lawyers Deserve Better

Don’t count your chickens before they hatch. Sam Bankman-Fried’s trial is well underway, and many are acting like the fight to convict the millennial Charles Ponzi is already won. It is true that the evidence presented so far appears damning, and that the overwhelming majority of criminal cases end in conviction. And there’s much to say about SBF’s attorney’s wet fart of a legal strategy, so far. But the old boy hasn’t yet been found guilty by a jury of his peers, and that matters.

So, I say, for the sake of humility and tact — let’s curb the bloodlust.

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Last week, during the first days of a trial that could extend six weeks, there was much rejoicing over the fact that SBF’s high-paid lawyers made an embarrassing initial showing. According to some estimates, District Judge Lewis Kaplan, a former prosecutor who is overseeing SBF’s case, rebutted 60% of attorney Christian Everdell’s questions during a cross-examination. At one point, former FTX dev (and longtime friend of SBF), Adam Yedidia, came right out and said he was ride or die for his former boss up until it became obvious SBF had “defrauded” his customers, a point that was stricken from the record but is impossible to forget.

See also: Sam Bankman-Fried, Other FTX Execs Committed Fraud: Gary Wang

But, again, the show is not over. What happens in the courtroom matters for this trial, and also the legal harranging that will almost certainly follow. If it’s true that trials are a type of theater (afterall, both lawyers and actors are paid liars), then special attention should be given to the performance of everyone in the courtroom. The actions and motions and statements offered today as well as the trial’s overall direction will become the “facts and circumstances” considered in an appeal.

While many onlookers in the crowded overflow rooms at the Daniel Patrick Moynihan Courthouse in New York are likely thankful for Judge Kaplan’s ability to move the case forward (to say nothing of the schadenfreude many might feel seeing team SBF squirm), there’s a case to be made Kaplan should be a little more sporting, a little more judicial.

Afterall, a 31-year-old man could be locked away in a federal penitentiary for over 100 years.

This is a point attorney Sam Enzer, a partner with law firm Cahill Gordon & Reindel, brought up in a recent episode of “Unchained.” Although it’s not known if SBF’s lawyers are angling for a mistrial or to appeal a possible conviction, Enzer said that there may be grounds for that if not given a fair shake.

At one point last week, Judge Kaplan reprimanded defense attorney Everdell for asking questions about already established facts. “I just want to express my growing concern about the extent of the entirely unnecessary repetition, and I’ve given you a lot of latitude,” Judge Kaplan said on Thursday. “You’re wearing out the welcome on the repetition.”

These comments were made, seemingly, when the jury was out of earshot. However, there’s an argument to make that every objection Kaplan sustains against SBF’s lawyers hurts the accused far more than it satisfies the court. What exactly is lost by allowing an attorney the ability to ask a few questions? A few minutes?

These things cannot exactly be quantified, but conceivably, what’s lost is the defense’s momentum, self-confidence and the goodwill they can build up with a jury. Picture yourself doing your civic duty as a juror: are you going to trust a person who is routinely chastised for seemingly breaking the rules? What’s done for the sake of efficiency (or to stave off boredom) could have unintended consequences.

The U.S. Department of Justice is starting on the high ground, to some extent, in that prosecutors have been interviewing and coaching their witnesses for months — a level of privilege and access the defense is rarely afforded. Although pre-trial court procedure is meant to level the playing field by having both sides present their arguments and evidence upfront, Enzer noted in many instances the first time a defense attorney speaks to a witness is when they are on the stand.

See also: Could Sam Bankman-Fried's Saga Happen Without Crypto? | Opinion

Speaking hypothetically, Enzer also mentioned an appeals court could count the number of times the defense was thrown off its line of questioning to determine whether to reverse a decision or call for a retrial. This is in a case, mind you, where the judge has already barred the defense from making a number of planned arguments and where the defendant was essentially told he didn’t necessarily have a right to review every single piece of evidence.

None of this is said to gin up sympathy for Sam Bankman-Fried, who in many respects deserves all that he gets (and then some) and can only blame himself for losing the “court of public opinion.” It’s not his lawyers’ fault SBF decided to go on an ill-advised “apology tour” in a fruitless attempt to regain public sympathy after FTX collapsed. And, hopefully, it wasn’t his lawyers’ fault that SBF was remanded into jail — after leaking a witness’ diary to the press — which has made strategizing and consulting with the defendant that much harder.

SBF is facing an uphill battle because of the magnitude of his alleged crimes and the evidence presented so far. His attorneys have a weak defense because there’s no defensible argument for which SBF was charged. For many, based on what’s already publicly known, there is no reasonable doubt that SBF stole from customers and defrauded investors. And so, because the case is a knockout, it’s hard to take joy in Judge Kaplan making it harder for the defense.