Oct 17, 2023 - Economy

Sam Bankman Fried's "you took a plea deal" defense

Illustration of a gavel falling through the sky

Illustration: Natalie Peeples/Axios

When the enemy has the higher ground, level the playing field and attack.

Driving the news: That's one part of what appears to be the defense strategy for Sam Bankman-Fried's attorneys in the cross examination of prosecution witnesses.

  • Last week, defense attorney Mark Cohen directed a barrage of questions at witness Caroline Ellison, the former CEO of Bankman-Fried's hedge fund, Alameda Research, about her plea agreement with the U.S. government.
  • The questions related to what crimes she committed, what she pleaded guilty to and how many times she met with prosecutors.

Zoom out: There are two ways the defense will attack a plea agreement, Daniel Silva, a former federal prosecutor and now a lawyer at Buchalter's San Diego office, tells Axios.

  • "One is to challenge the witness's credibility, and the second is to attack the U.S. Office," he said.
  • For example, the defense might say, "You overstated the facts," or "You caved to stay out of jail."

Between the lines: The idea is to "undermine the value of the plea agreement," a strategy that could undercut key insider witnesses testifying against Bankman-Fried, like Ellison, FTX co-founder Gary Wang and its former engineering director, Nishad Singh.

What others are saying: "Trials are exceedingly rare — for the most part, the government leverages a plea," Yesha Yadav, a law professor at Vanderbilt University said. This is such a common way to run the criminal justice system, it's the [defense] lawyers' job to point out the conflict of interest."

  • Yes, but: "You can't rely on that argument alone, because it's the most common way for the government to extract evidence," Yadav said.

The bottom line: "If the [prosecutors] start with a bang and end with a whimper, that'll be good for SBF," Silva says.

  • For now — while the prosecution is still presenting its case — what the defense can do is "chip away" at the U.S. government's arguments. "The more doubt they can sow in the minds of jurors, the better."

What we're watching: At a pre-trial hearing late last month, the defense said it would need no more than a week and a half to present its own case.

Go deeper: SBF's emerging defense strategy may soon become clear

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