Is Sam Bankman-Fried’s defense dropping the ball?

I expected Sam Bankman-Fried’s defense lawyer to be a real shark. Not just because Bankman-Fried had — at one point, at least — enough money to hire the best, but because I know that the lawyer hired also once represented Ghislaine Maxwell. 

Yet based on my relatively short time in the courtroom, I’m beginning to see why she ultimately went to prison.

The defense’s strategy so far seems incoherent, skipping around in opposing directions while simultaneously boring the jury to sleep. I caught no fewer than three jurors fast asleep at different times over the past two weeks.

I’m also not sure if it’s normal for the defense to be reprimanded publicly by the judge so many times in a single day. At one point, after multiple warnings, the judge called a sidebar and turned on some white noise so that he could more comfortably yell at the defense team.

His biggest problem? The incredibly repetitive questions, worded in weird, often leading ways, that the defense insisted on asking each witness. Despite the white noise, one intrepid reporter noticed that the transcription software was still running during the sidebar: 

“The goal here is not to set a record for the longest trial,” said the judge. “It’s to have the fairest trial. Let’s get moving.”

I asked a lawyer I know about Bankman-Fried’s defense strategy and what could lie at the heart of all the rambling: Was it a known winning strategy to bore a jury into unconsciousness? 

This lawyer seemed doubtful. But she proffered an even odder take for what the defense could actually be doing wrong.

Her point, put simply: All these former FTX employees have admitted guilt, unlike Bankman-Fried, who says he’s innocent of the crimes to which he’s accused.

Thus, the question we’re left with is: Why isn’t the defense treating them like criminals? It’s almost as if the defense is leaving money on the table by overlooking this approach. 

Starting with a whimper

The defense couldn’t catch a single break the first week. 

Beyond the reprimands, the defense had a success rate of about 10% in getting their objections to any of the prosecution’s questions of the witnesses sustained. In contrast, the prosecution was shooting out objections left and right, and the judge was sustaining them almost faster than they could shout “objection!”

When questioning former FTX developer Adam Yedidia, defense lawyer Chris Everdell’s initial strategy seemed to primarily consist of flipping through a watermelon-sized binder after every question as if he were looking for any new angle to use. He broke up his page turns with long sips of water, loud throat clearings and frequent pauses to whisper to Bankman-Fried. 

At one point, Bankman-Fried called him over and whispered in his ear after Everdell misspoke approximately ten times in a row — saying “auto-delete” when he meant “auto-liquidate.” Everdell appeared to mix up two different topics during the trial’s first week. These things couldn’t be any less related, yet Everdell, an attorney at a respected law firm, still managed to confuse them. 

Another example of an Everdell misspeak came during week two, when he began the day with the proclamation: “The government offers this exhibit.”

The judge stopped him immediately, as Everdell is not working for the US government.

In a case as complex as this — with terms as basic as “code” and “bug” thoroughly defined for the jury — it’s essential to be clear and accurate when discussing the intricate financial mechanisms of how FTX worked. There’s no room for missteps in language.

As for the witnesses themselves, the defense couldn’t win, either. 

An example of the defense’s counterintuitive lines of questioning: Last week, Bankman-Fried’s attorneys set out to prove that former FTX developer Adam Yedidia was a lowly employee who doesn’t know anything.

In pursuit of this goal, they asked question after question to set in the jury’s mind that all Yedidia did was code, no marketing, no strategy, no accounting, no trading. 

But then, after most of their questions were successfully overruled by the prosecution, they switched tactics in an almost bizarre reverse maneuver — they began to ask question after question about why FTX was such a superior platform and had such high quality trading experience — perhaps inching towards the point that FTX was a fully solvent firm. 

Unfortunately, as Yedidia was truly just a developer (as they had just spent an hour trying to prove), he couldn’t answer nearly any of their questions about user numbers or transaction speed.

The defense also seems to clumsily set up the prosecution for an easy win on occasion.

Case-in-point last week when the defense pulled up a photograph to be shown to the jury: Sam Bankman-Fried, sitting with his unruly hair, FTX t-shirt and crumpled cargo pants next to Bill Clinton and Tony Blair on stage. 

Is this the type of man who was out to steal his customers’ money, asks the defense, this billionaire who was so immune to the trappings of wealth that he shows up like this at his own event with these very important people? He clearly doesn’t care about money to spend it on fancy brands! I mean, come on, he drove a Corolla!

The prosecution immediately went to town on the photo, essentially annihilating the defense’s argument here with just one question: And how much did Bankman-Fried pay to have these two politicians on stage with him?

At one point, Bankman-Fried’s mother buried her head in her hands. Not a good way to end the first week of trial. 

Turning things around?

However, the defense does seem to be turning around in the trial’s second week. 

Not only are they able to get into a rhythm in their cross examination, but it appeared that Sam’s parents even congratulated Everdell after his cross examination of FTX co-founder Gary Wang.

It’s true that Everdell seemed to finally hit a stride with Wang. There were zero admonitions from the judge about repetitiveness and almost no objections. The defense’s best flow was when Everdell was able to hammer home the many times that government witness Wang met with prosecutors ahead of the trial — a total of 19. 

Regardless of the defense’s successes or failures last week with Yedidia and Wang, they now have an opportunity to do something new when the real cross examination of former Alameda CEO Caroline Ellison commences.

But the five minutes that the defense had yesterday with Ellison before the court adjourned were not promising at all. 

After repeated misstatements and conflations of different FTX money accounts, the prosecution actually stood up and said that the cross examination was “confusing.” The judge agreed.

Additional reporting by James Cirrone.

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