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Speaker 1: Pushkin.

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Speaker 2: I'm Michael Lewis. This is Judging Sam. It's Thursday, March

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Speaker 2: twenty eighth. My producer Lydy Jean and I are standing

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Speaker 2: outside the federal courthouse where Sam Batman Free was just

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Speaker 2: sentenced to twenty five.

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Speaker 1: Years in jail.

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Speaker 2: So what we can talk about with this more when

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Speaker 2: we were back in, you know, but I'm curious what

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Speaker 2: it was like in the I wasn't.

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Speaker 1: In the court. Were you in the courtroom?

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Speaker 3: Yeah?

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Speaker 1: What was it like in there?

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Speaker 4: I mean it was really it was very full, one

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Speaker 4: of the fullest days in the courtroom.

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Speaker 1: Is there any obvious emotion?

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Speaker 4: I mean Sam BigMan Fried's parents were at some point

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Speaker 4: they had their heads right up next to each other.

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Speaker 4: And when Sam BigMan Freed came out, what struck me was,

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Speaker 4: you know, he was really pale. His hair was totally wild,

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Speaker 4: and you could hear the clinking of the.

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Speaker 2: James, you could hear the clanking of the chains he

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Speaker 2: was and he was holding his hands behind him as

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Speaker 2: if he were handcuffed, and I thought, oh, that's just

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Speaker 2: coincidental though he wasn't handcuffed. But when he got up

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Speaker 2: to leave, he put his hands right behind him as

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Speaker 2: if he were handcuffed again, and I suspect what happened

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Speaker 2: was they just had a deal. You just look like

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Speaker 2: you're handcuffed and we won't put the handcuffs on him.

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Speaker 4: I didn't. That's a that's a good eye. What did

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Speaker 4: you think? And Sam maguin Fred actually spoke. What did

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Speaker 4: you think about what he said?

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Speaker 2: I think he went on too long, but I think

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Speaker 2: that he was sort of re litigating it and trying

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Speaker 2: to say the things he didn't say when he was

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Speaker 2: on the stand. None of it mattered from the point

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Speaker 2: of the sentence. The sentence was established where ay of

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Speaker 2: those people got up and spoke, So you kind of wonder,

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Speaker 2: what's this all?

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Speaker 1: Theater?

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Speaker 2: So what we watched was theater. We could have just

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Speaker 2: come and just had the judge read the sentence, but

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Speaker 2: the and nothing that happened affected the sentence.

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Speaker 1: But did it affect my perception? It just just increased.

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Speaker 2: My perception that Sam is his own worst endemy. I mean,

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Speaker 2: he gets up and the one thing he could do

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Speaker 2: that would make would undermine the judge's view of him

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Speaker 2: negative view of him, would be to express remorse. And

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Speaker 2: the judge didn't hear any remorse. He did sort of respect.

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Speaker 1: He expressed he was displeased.

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Speaker 2: That it had all happened. Happened, yes, but it was

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Speaker 2: it was not a whole lot more than that. And

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Speaker 2: so it surprised me that he, I mean, he was

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Speaker 2: playing not to the judge, he was playing to the

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Speaker 2: media and trying to get his version of the events out.

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Speaker 1: And the judge responded by.

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Speaker 2: Saying, I can see what you're gonna do if I

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Speaker 2: let you out too soon, You're gonna get this version

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Speaker 2: of events out.

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Speaker 1: And the fact is that there's some truth in his

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Speaker 1: version of events. It's not like the truth was all

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Speaker 1: on one side here.

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Speaker 2: It's messy, and I'm just kind of I'm going to

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Speaker 2: imagine what's rattling around in the judge's mind given his

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Speaker 2: previous decisions. One of the things rattling around his mind,

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Speaker 2: I bet was the line in Barbara freedst her to

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Speaker 2: him that I'll never see my son out of jail.

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Speaker 2: And I think some little part of him wanted to

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Speaker 2: give her at least hope.

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Speaker 4: And I noticed that he also asked for him to

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Speaker 4: be in prison in San.

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Speaker 1: Francis, in the Bay Or.

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Speaker 2: I think he was thinking about the parents a little

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Speaker 2: bit yeah, I also felt like he read my book.

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Speaker 4: I was thinking the same thing when he was.

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Speaker 2: Talking about James exactly right, that it all grew out

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Speaker 2: of Jane Street.

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Speaker 1: Because that is true.

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Speaker 2: I mean this the way of this confirmation of his

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Speaker 2: approach to life. Yeah, it's it only really starts in

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Speaker 2: Jane Street. It was funny to me that he sort

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Speaker 2: of implicated James Street in that.

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Speaker 1: I thought he was doing that.

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Speaker 2: A little bit that because he was he disapproves of

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Speaker 2: this worldview, and this worldview, this, this world view was

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Speaker 2: the worldview.

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Speaker 4: Of Jane Street, the idea of expected value.

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Speaker 2: Yeah, which isn't necessarily a bad worldview, but it's uh,

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Speaker 2: but it bothers a judge anyway. Well, this is what

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Speaker 2: happens when you replace principles with probabilities.

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Speaker 1: Judges get pissed.

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Speaker 3: I can't be sorry for some time.

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Speaker 4: We're outside of a door of a federal building. Has

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Speaker 4: just arrived for the security guard. So it's about an

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Speaker 4: hour after Sam makmund freed sentencing. Michael Lewis and I

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Speaker 4: are back in the studio and we're joined by Rebecca Mermelstein.

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Speaker 4: She is a former federal prosecutor at the Southern District

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Speaker 4: of New York, which is the office that prosecuted Sam.

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Speaker 4: And she's a partner at the law firm O Melvanie

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Speaker 4: and Myers.

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Speaker 3: Hi, Rebecca, Hi, guys.

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Speaker 1: So I'm gonna starts off, Rebecca.

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Speaker 2: I saw there are several things that are just bewildering

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Speaker 2: to me, and can I can I just take them

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Speaker 2: one by one and maybe you can help explain.

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Speaker 1: Them to me.

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Speaker 2: One is the judge obviously comes in with the sentence

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Speaker 2: on a piece of paper. He's already decided what the

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Speaker 2: sentence is. It would take in about forty five seconds

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Speaker 2: to deliver the sentence. Instead, there was two plus hours

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Speaker 2: of theater where Sam's lawyer got up, the prosecution got up,

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Speaker 2: someone a victim got up and spoke. Sam Begman Free

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Speaker 2: delivered a long and rambling statement from his feet. I mean,

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Speaker 2: one thing after another happened that none of which could

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Speaker 2: conceivably influence the sentence.

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Speaker 1: And I'm wondering what is it all for? Like? What

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Speaker 1: was what did I just watch?

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Speaker 3: I would start by rejecting the premise that it was preordained,

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Speaker 3: that it was Onofe's paper, and that it was all theater.

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Speaker 3: Although I know what you mean, I have seen judges

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Speaker 3: actually after the substantive presentation of a sentencing is complete.

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Speaker 3: The prosecution has spoke, the defense has spoke, the defendant

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Speaker 3: has spoken. I've seen judges leave the courtroom and go

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Speaker 3: back to their chambers to give it some thought before

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Speaker 3: imposing sentence. So I don't think it's just theater now.

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Speaker 3: Having said that, of course, this is a case where

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Speaker 3: the judge knows a lot about the case before the

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Speaker 3: sentencing starts. He presided over the trial. The parties each

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Speaker 3: filed written submissions. I think the governments is like one

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Speaker 3: hundred and twenty pages, the defense is eighty something pages.

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Speaker 3: So the information was already there. And I don't disagree

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Speaker 3: with you that it is unlikely that anything said in

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Speaker 3: the court room itself by the defendant, by the lawyers

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Speaker 3: is going to change where the judge comes out, and

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Speaker 3: that the judge was already sort of largely decided on

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Speaker 3: twenty five years before he came out, and that nothing

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Speaker 3: he heard changed it. So why do we do it,

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Speaker 3: I think, is your question. Some of it is legally required.

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Speaker 3: There are rules, for example, right that allow victims the

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Speaker 3: right to be heard at sentencing, that allow defendants the

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Speaker 3: right to be heard at sentencing judges sometimes do have

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Speaker 3: questions for the parties about underlying facts, about the disagreements

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Speaker 3: about the sentencing guidelines. So I don't think it's a

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Speaker 3: waste of time or just political or legal theater. But

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Speaker 3: I don't disagree with you. That judge.

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Speaker 2: We know he knew it was going because when it

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Speaker 2: came down to sentence he said, wait, I lost the

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Speaker 2: piece of paper and he got so he had to

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Speaker 2: go find his piece of paper with the sentence on it.

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Speaker 2: So we know there was a piece of paper and

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Speaker 2: he'd already written on it. So that so that was

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Speaker 2: my first question. My second question was they did all

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Speaker 2: this math in the beginning, and I thought, well, the

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Speaker 2: judge is going to have no discretion whatsoever? Is what

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Speaker 2: it sounds like if you know what, if you knew nothing,

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Speaker 2: you think, are they just going to calculate the sentence

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Speaker 2: here that the crime is going to generate a number?

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Speaker 2: And instead, having calculated the math, the judge basically more

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Speaker 2: than basically conceded that that the criminal justice system does

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Speaker 2: not work unless the sentence squares with just the average

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Speaker 2: man on the streets feeling of what's reasonable, and that

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Speaker 2: that you know that that's the important test is you

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Speaker 2: hear the crime, you hear the sentence, and then average

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Speaker 2: man on the street says, oh, yeah, that sounds about right.

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Speaker 2: And he then proceeded on a very kind of emotional

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Speaker 2: and beautifully scripted little speech about how he felt about

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Speaker 2: this whole thing and how we all should feel about it.

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Speaker 2: And it was like we were in the land of

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Speaker 2: moral sentiment rather than math when he started to talk

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Speaker 2: about what the sentence was going to be and why,

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Speaker 2: and you got the feeling he could have said one

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Speaker 2: hundred years or two years, and that he was pulling

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Speaker 2: the actual sentence out of his rear end rather than

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Speaker 2: out of his calculator.

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Speaker 1: Am I wrong about that?

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Speaker 3: I don't think it comes out of a calculator, but

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Speaker 3: I think it is more than just made up out

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Speaker 3: of thin air. And I think that when we talk

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Speaker 3: about what a person on the street would think, I

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Speaker 3: think the way judges are often framing that is through

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Speaker 3: what's called the thirty five to fifty three A factor.

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Speaker 3: So there's the guidelines analysis, right, you have to do

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Speaker 3: that math. In this case, as we know, it's spit

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Speaker 3: out a recommended sentence of one hundred and ten years

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Speaker 3: nobody thought that was the right sentence, not the government,

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Speaker 3: not the probation department, not the judge, not defense Council,

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Speaker 3: and then an imposing sentence. The judge has to consider

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Speaker 3: these listed factors in eighteen USC. Thirty five to fifty

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Speaker 3: three A, and those include things like the need for

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Speaker 3: just punishment, the need for deterrence, the need for the

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Speaker 3: sentence to reflect the seriousness of the offense, the need

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Speaker 3: not to create unwarranted discrepancies disparities between similarly situated defendants.

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Speaker 1: Right.

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Speaker 3: So, and what I think when you think about all

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Speaker 3: those factors together, what those do is, in a slightly

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Speaker 3: less lawyer way than the math, they get at fundamental fairness, right,

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Speaker 3: and the purposes of sentencing, which are a few right, deterrence,

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Speaker 3: punishment in some cases.

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Speaker 1: In coascitation. The judge in this case, if you have

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Speaker 1: a chance to read what the judge said.

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Speaker 3: He said, there is a real risk of reciities.

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Speaker 1: That's my jaw was on the floor there, But that

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Speaker 1: was that was I was interesting.

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Speaker 2: It surprised me that he thought, Oh, if we don't

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Speaker 2: put this man away for a long period time, he's

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Speaker 2: going to come back and create another crypto exchange or whatever.

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Speaker 4: But didn't Sam bankman Fried's statement make it sound like

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Speaker 4: he would be someone who might come back and start

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Speaker 4: another crypto exchange.

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Speaker 1: If he could, the world wouldn't let him.

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Speaker 2: So so I don't I don't think Sam would be

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Speaker 2: given permission to start another crypto exchange.

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Speaker 1: He probably he's probably be banned for finance, just for starters.

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Speaker 2: So it seemed it just seems really unlikely that a person,

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Speaker 2: this person would go do it all over again.

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Speaker 1: But the judge was quite intent on this point.

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Speaker 2: It was like, I think, I look at you, and

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Speaker 2: I can already see how you're going to do it

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Speaker 2: all over again.

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Speaker 1: So I got to put you away for long enough

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Speaker 1: that you can't do that.

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Speaker 3: I have to say, I thought the government submission was

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Speaker 3: very very strong in this case. I thought there were

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Speaker 3: a lot of arguments that were very well made. I

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Speaker 3: found that the weakest argument they made, I don't I

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Speaker 3: don't think there's a realistic chance of him being a recidivist.

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Speaker 3: That they had a whole site of prior cases where

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Speaker 3: white collar defendants committed similar crimes after having been convicted.

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Speaker 3: Strangely and by coincidence, many of those are cases I

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Speaker 3: personally handled oddly enough. And the big difference there is

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Speaker 3: those aren't cases where there was this kind of publicity,

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Speaker 3: and so I don't think that that is actually a

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Speaker 3: significant piece of what was necessary for sentencing. But I'm

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Speaker 3: not the judge, and you the list of.

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Speaker 2: Things to watch for or to listen for before we

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Speaker 2: went in, you said you'd be listening for. How much

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Speaker 2: focused the judge placed on Sam's perjury, how Sam had

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Speaker 2: behaved on the stand was I think you might have

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Speaker 2: mentioned had he shown remorse? They were all I found

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Speaker 2: running through my head as he was approaching the sentence

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Speaker 2: of twenty five years. As he's about to deliver that,

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Speaker 2: and I was trying to I was thinking, how would

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Speaker 2: the sentence have been affected if, for example, he hadn't

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Speaker 2: purjured himself.

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Speaker 1: What if you hadn't Let's replay this.

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Speaker 2: I know you can't answer this question exactly, Rebecca, but

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Speaker 2: let's just say Sam Beck.

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Speaker 1: Mcfreed had been a completely different kind of defendant.

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Speaker 2: If he just sat there quietly, looking sad, seeming sorrowful,

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Speaker 2: feeling seeming remorseful in a way that was persuasive, and

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Speaker 2: just took it, how much different would his sentence have been.

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Speaker 3: It's obviously impossible to know. The guidelines give you a

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Speaker 3: mathematical kind of suggestion, right, because perjuring yourself results in

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Speaker 3: a two level enhancement, so failure to accept responsibility, right,

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Speaker 3: hedd he pled guilty, that's a three level reduction. So

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Speaker 3: you can do the math, but that doesn't get you anywhere,

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Speaker 3: both because the loss here is so high that the

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Speaker 3: math stays astronomical no matter what you do, and so

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Speaker 3: it doesn't really help you, and because it's not that scientific.

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Speaker 3: You know, if he had been extradited, shown up and

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Speaker 3: said I did it, and I'm sorry, and I take

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Speaker 3: full responsibility, and I want to plead guilty and do

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Speaker 3: what I can to help the bankruptcy estate, what was

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Speaker 3: he going to get in light of the twenty five

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Speaker 3: years he did get? I say, twelve to fifteen. We'll

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Speaker 3: never know, but we'll never know, right.

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Speaker 1: I just wondered what that cost a lot?

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Speaker 4: I think, do you think he could have gained anything

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Speaker 4: off when he in his statement he said he was

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Speaker 4: truly sorry, which he didn't really do, and sentencing.

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Speaker 3: Today, I don't think it was likely to move the

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Speaker 3: needle much at this point. I think that Michael is

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Speaker 3: right that the judge, given the thoroughness of the briefing

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Speaker 3: and the trial, had largely formed an opinion at this point,

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Speaker 3: and so in the absence of something really surprising happening,

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Speaker 3: he had sort of decided where this was going to go,

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Speaker 3: and so saying at this point, I take full responsibility,

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Speaker 3: not ultimately, I take responsibility for this, but I didn't

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Speaker 3: do anything wrong, but I did do something wrong, and

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Speaker 3: I admit that I committed crimes, and I'm sorry. I

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Speaker 3: think there would be a too little, too late vibe

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Speaker 3: and a sense that you're saying it now because you

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Speaker 3: have no choice and it's your last dish effort. So

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Speaker 3: I don't know that I think it would have been helpful.

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Speaker 3: And of course he's hoping to appeal, and there are

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Speaker 3: strategic reasons not to make that admission at this point

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Speaker 3: in the game. So I don't know that I think

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Speaker 3: it would have moved the needle. But I do think

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Speaker 3: that had he earlier acknowledged responsibility. And this happens a

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Speaker 3: lot actually with trials. Where a person goes to trial,

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Speaker 3: they exercise their right. The judge understands that they wanted

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Speaker 3: to put the government to its proof, but that it's

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Speaker 3: sentencing the person accepts responsibility. I think it might have

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Speaker 3: moved the needle. I think that a failure to admit

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Speaker 3: your own criminal conduct feeds into the recidivism concern, because

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Speaker 3: if you can't admit you did something wrong now, then

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Speaker 3: how are you not going to do it next?

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Speaker 1: But you think you'd at least fake it for the

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Speaker 1: for the purposes of the trial.

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Speaker 2: And Sam didn't even really fake it.

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Speaker 1: It's so I have no next question. Two questions.

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Speaker 2: First question is they had a victim. They allowed a

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Speaker 2: victim to come and speak.

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Speaker 1: The victim.

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Speaker 2: I thought the purpose of the victim speaking was to

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Speaker 2: enhance the prosecution's case.

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Speaker 1: That seemed to be why he was there.

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Speaker 2: But the victim got to the podium and just went

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Speaker 2: on and on and on.

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Speaker 1: About how the bankruptcy was stiffing him.

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Speaker 2: Basically was a full throated attack on Sullivan and Cromwell

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Speaker 2: and not on Sam Bekman Freed.

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Speaker 1: It was like the guy was saying he was saying

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Speaker 1: with Sam Began.

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Speaker 2: Free was saying, the money's there, I want my money back,

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Speaker 2: and these lawyers won't give it back to me. The

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Speaker 2: judge finally silenced him and said this isn't bankruptcy court.

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Speaker 2: But I would have thought the prosecutors would have vetted

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Speaker 2: what the victim was going to say before he said,

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Speaker 2: and that's not how it works.

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Speaker 3: So it's interesting. I don't know what happened behind the

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Speaker 3: scenes here. Obviously, victims of a crime have a statutory

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Speaker 3: right to be heard at sentencing, So it is for

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Speaker 3: sure truth that the government sometimes strategically invites victims or

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Speaker 3: encourages victims to attend. But it is also certainly possible

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Speaker 3: that the government did not intend to have any victims

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Speaker 3: that's sentencing in this case. And this guy said he

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Speaker 3: wanted to talk, and he's entitled, And given what you've

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Speaker 3: just said, it sounds like it's just every.

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Speaker 1: FTX victim could have showed up and insisted on speaking.

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Speaker 3: As a practical matter. What would have happened if thousands

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Speaker 3: of people had said they wanted to talk. I don't know,

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Speaker 3: but I've never seen it happen. Yes, they each have

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Speaker 3: a right. I've never seen it be a problem.

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Speaker 2: Lord, that could get messy. So but the second thing

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Speaker 2: I think the best the best. I'd love Ljay's take

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Speaker 2: on this, But my favorite part of the theater was

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Speaker 2: Judge Kaplan himself. He had almost a novelistic sense of

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Speaker 2: the character that he had made. He made the kind

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Speaker 2: of effort I make when I'm writing about someone to

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Speaker 2: try to really get to know that person. And at

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Speaker 2: one point, when he's talking about why Bankminfreed might come

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Speaker 2: out out and do it all over again, he used

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Speaker 2: the phrase it's his nature, and it was like he

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Speaker 2: felt like he had gotten to the nub of Sam

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Speaker 2: Beckman Freek's character. And I don't think he was far off.

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Speaker 2: I think he actually put his finger on on the thing.

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Speaker 2: And does that happen?

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Speaker 1: Was that?

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Speaker 2: Did I just witness something that was really unusual in

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Speaker 2: a courtroom? Or are they judges actually do this kind

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Speaker 2: of thing where they actually kind of take part, piece

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Speaker 2: by piece the defendant's character.

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Speaker 3: I think it's common. I don't think it happens in

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Speaker 3: every case. It's dependent on the judge and the personalities

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Speaker 3: and the crime itself. Some crimes don't lend themselves. They're

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Speaker 3: not long, big picture, ongoing things. There are crimes of

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Speaker 3: a moment, and so this kind of deep analysis of

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Speaker 3: personality and what kind of person does this you wouldn't see.

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Speaker 3: But I don't think it's uncommon to see a judge

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Speaker 3: really try to look at the whole picture. And I

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Speaker 3: think that's part of the job of a judge. At sentencing,

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Speaker 3: you'll hear judges often say, you know you are not

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Speaker 3: the worst thing you did, and my job is to

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Speaker 3: consider not just the criminal conduct here, but who you

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Speaker 3: are as a person, what are the good things in

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Speaker 3: your life? People are complicated, right, you could be the

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Speaker 3: best father in the world, and also, you know, a

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Speaker 3: terrible criminal. So I don't think it's unusual to hear

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Speaker 3: judges do that kind of analysis. Given how long this

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Speaker 3: case has gone on and how long the trial was

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Speaker 3: and all the kind of bumps, this judge has a

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Speaker 3: lot more to work with in making that analysis than

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Speaker 3: sometimes happens where a person might you know, get arrested

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Speaker 3: and appear in front of the judge, appear at the

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Speaker 3: plea and then appear at sentencing and the only thing

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Speaker 3: the judge has to work from is sentencing submissions and

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Speaker 3: the PSR. But no, I don't think it's.

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Speaker 1: Uncommon, LJ. What were your favorite moments?

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Speaker 4: I mean, I definitely I thought it was really interesting

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Speaker 4: to hear from Judge Kaplin because I think he for

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Speaker 4: the entirety of the trial, it had to hold back

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Speaker 4: on what he was thinking and how he was viewing

383
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Speaker 4: the story, and then this was finally his opportunity to

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Speaker 4: kind of say, this is what I saw and this

385
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Speaker 4: is how I feel about it. But he also kind

386
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Speaker 4: of summed up the story when he talked about the

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Speaker 4: coin flip that we also talked about in the podcast,

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Speaker 4: and it's just something that really sticks with you when

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Speaker 4: he said that Caroline had this anecdote about how Sam

390
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Speaker 4: said that if he had if there was a coin

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Speaker 4: and if you flipped it, one way, the world would

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Speaker 4: be two times better and the other way the world

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Speaker 4: would be destroyed. And Sam said he would choose to

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Speaker 4: flip because.

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Speaker 1: It had positive expected value.

396
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Speaker 4: It was more likely there's a slightly better chance that

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Speaker 4: the world could be better. And I think that's kind

398
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Speaker 4: of what Judge Coplin was saying, was like Sam's fatal flaw.

399
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Speaker 2: I agree with that it is, and the nub of

400
00:19:55,476 --> 00:19:58,076
Speaker 2: his crime is is not it's theft.

401
00:19:58,116 --> 00:19:59,596
Speaker 1: Always feels like the wrong word.

402
00:20:00,316 --> 00:20:03,236
Speaker 2: It was taking people's money and risking it without telling them,

403
00:20:03,516 --> 00:20:06,956
Speaker 2: and he did this an emotional with the people's emotions too.

404
00:20:07,036 --> 00:20:09,876
Speaker 1: It's like numb to his own own risk.

405
00:20:09,916 --> 00:20:12,836
Speaker 2: But also other people's risk like and oblivious to it,

406
00:20:13,196 --> 00:20:15,876
Speaker 2: and who gets why does Sam begnerfy think he has

407
00:20:15,916 --> 00:20:18,516
Speaker 2: the right to flip that coin when it's gonna it's

408
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Speaker 2: going to have lots of effects other than on him.

409
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Speaker 2: I mean, Rebecca, I don't know how often you see this,

410
00:20:23,956 --> 00:20:27,796
Speaker 2: but this thing has, this trial, this whole episode has

411
00:20:27,836 --> 00:20:31,036
Speaker 2: the contours of great theater or our great, our great novel.

412
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Speaker 2: This that that that the love, that the love affair

413
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Speaker 2: ends with the lovers opposed, and that she ends up

414
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Speaker 2: being being the person who brings him down after all this,

415
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Speaker 2: and being the one who gets inside the judge's head

416
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Speaker 2: and plants the seed of who he really is is

417
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Speaker 2: kind of amazing. I mean, I don't know how often

418
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Speaker 2: you have the feeling in the courtroom that I'm I'm

419
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Speaker 2: watching something this naturally good theater.

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Speaker 3: I think Quorum Offfen is naturally good theater. And as

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00:21:00,636 --> 00:21:03,916
Speaker 3: we've talked about before, I think prosecutors and defense layers

422
00:21:03,916 --> 00:21:08,116
Speaker 3: are storytellers, just like novelists. I think that to me,

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Speaker 3: it's less a romance gone wrong and the irony of

424
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Speaker 3: her testimony being this thing that really resonated with everyone,

425
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Speaker 3: and more about the thing that what made him so

426
00:21:18,636 --> 00:21:23,076
Speaker 3: successful was ultimately also what brought him down. And his

427
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Speaker 3: idiosyncratic personal sense of morality and overconfidence, perhaps coupled with

428
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Speaker 3: what was undoubtedly someone who was brilliant in many ways,

429
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Speaker 3: ultimately was his downfall because and I mean that not

430
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Speaker 3: just in that it ultimately caused him to commit these crimes,

431
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Speaker 3: but I think that the government really did a convincing

432
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Speaker 3: job of taking the defense arguments about his autism and

433
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Speaker 3: his neurodiversity and trying to context to us who is

434
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Speaker 3: is a person in that lens, and the government flipped

435
00:21:56,996 --> 00:21:59,156
Speaker 3: it on its head and said, that's the problem. The

436
00:21:59,196 --> 00:22:02,556
Speaker 3: problem is he will never be able to change. He

437
00:22:02,716 --> 00:22:06,436
Speaker 3: can't be sorry, he can't see that this is wrong

438
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Speaker 3: because he thinks he always knows better and that it's

439
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Speaker 3: worth it, and so then he will do it again.

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Speaker 3: And I thought that was an argument that they made well,

441
00:22:13,556 --> 00:22:14,676
Speaker 3: and I think Caplin believed it.

442
00:22:14,956 --> 00:22:17,116
Speaker 4: And one thing that I just realized that I think

443
00:22:17,196 --> 00:22:20,036
Speaker 4: is really interesting is that Sam Bankman freed. When he

444
00:22:20,036 --> 00:22:22,476
Speaker 4: gave his statement, he talked about kind of like what

445
00:22:22,596 --> 00:22:25,796
Speaker 4: he so appreciated about his friends and the people who

446
00:22:25,836 --> 00:22:28,996
Speaker 4: turned on him, and what he appreciated about Carolyn Allison

447
00:22:29,516 --> 00:22:31,916
Speaker 4: was how good she was at writing reviews of people,

448
00:22:32,036 --> 00:22:36,356
Speaker 4: the employee reviews. They were really thoughtful, and in the

449
00:22:36,516 --> 00:22:39,076
Speaker 4: end it was kind of her appraisal of Sam Bankman

450
00:22:39,156 --> 00:22:41,316
Speaker 4: freed that we're all left.

451
00:22:41,076 --> 00:22:48,476
Speaker 2: With, Yeah, judging Sam will be right back.

452
00:22:57,436 --> 00:23:02,636
Speaker 1: Welcome back to judging Sam. Do you think that Sam

453
00:23:02,676 --> 00:23:06,076
Speaker 1: has any hope on appeal? No? Yeah, I wouldn't have

454
00:23:06,076 --> 00:23:08,036
Speaker 1: thought so either. Yeah.

455
00:23:08,116 --> 00:23:11,156
Speaker 2: I mean it's I is there Do you see any

456
00:23:11,316 --> 00:23:13,156
Speaker 2: vulnerability in Kaplan's decision?

457
00:23:14,196 --> 00:23:15,036
Speaker 3: The sentence itself?

458
00:23:15,036 --> 00:23:18,836
Speaker 1: Are those the sentence itself? Actually what he said today?

459
00:23:20,116 --> 00:23:22,316
Speaker 3: I haven't seen the transcript, so I'm a little hamstrung

460
00:23:22,356 --> 00:23:25,756
Speaker 3: from fully opining. But I thought the sentence, what.

461
00:23:25,756 --> 00:23:26,436
Speaker 1: Did you think it was going to?

462
00:23:27,396 --> 00:23:30,436
Speaker 3: Actually, well, I've bounced all over and been wrong in

463
00:23:30,476 --> 00:23:33,716
Speaker 3: every direction, I would say. Immediately after the trial, I

464
00:23:33,756 --> 00:23:35,156
Speaker 3: thought he was going to be looking at like the

465
00:23:35,276 --> 00:23:39,996
Speaker 3: fifteen year range. I thought he's sort of Elizabeth Holmes

466
00:23:39,996 --> 00:23:42,156
Speaker 3: e in a lot of ways, right, you could see

467
00:23:42,156 --> 00:23:46,676
Speaker 3: that as a reasonable benchmark. The dollar amounts aren't the same,

468
00:23:46,716 --> 00:23:51,316
Speaker 3: but like, at some point, what's the difference. And then

469
00:23:51,636 --> 00:23:54,236
Speaker 3: after I read the sentencing submissions, I thought he was

470
00:23:54,276 --> 00:23:56,076
Speaker 3: going to get between forty what.

471
00:23:56,156 --> 00:23:58,156
Speaker 1: Caused you to update, As Sam would.

472
00:23:57,996 --> 00:24:04,676
Speaker 3: Say, Yeah, I thought that the most compelling part of

473
00:24:04,676 --> 00:24:06,796
Speaker 3: the government submission, which was new because a lot of

474
00:24:06,796 --> 00:24:09,956
Speaker 3: what they're saying is trial evidence and evidence of wrongdoing,

475
00:24:09,956 --> 00:24:14,516
Speaker 3: and that's all strong, but it's not news anymore. Was

476
00:24:14,556 --> 00:24:17,476
Speaker 3: that chart they had where they said, we've looked at

477
00:24:17,636 --> 00:24:21,916
Speaker 3: all the defendants who had guidelines. Range are that look

478
00:24:21,996 --> 00:24:25,516
Speaker 3: like Sam's driven by lost amount, not people who did

479
00:24:25,556 --> 00:24:28,716
Speaker 3: some technical kind of accounting fraud where it's like pretend

480
00:24:28,796 --> 00:24:32,276
Speaker 3: numbers people who took other people's money, and here are

481
00:24:32,276 --> 00:24:36,436
Speaker 3: the sentences they got, and it's, you know, at the

482
00:24:36,476 --> 00:24:38,276
Speaker 3: low end, it's twenty, at the high end it's one

483
00:24:38,316 --> 00:24:40,636
Speaker 3: hundred something, and it's kind of clustered in the forty

484
00:24:40,676 --> 00:24:44,796
Speaker 3: fifty to sixty range. And I found that a powerful argument,

485
00:24:44,836 --> 00:24:47,116
Speaker 3: because I think one thing judges struggle with all the

486
00:24:47,196 --> 00:24:50,836
Speaker 3: time is even an enormous amount of power and discretion.

487
00:24:51,596 --> 00:24:54,036
Speaker 3: You have to do what you think is right, you

488
00:24:54,116 --> 00:24:56,796
Speaker 3: as a person think is right, but you also have

489
00:24:56,876 --> 00:24:59,716
Speaker 3: to take seriously the obligation to give a sentence that

490
00:24:59,756 --> 00:25:03,956
Speaker 3: does not create unwarranted sentencing disparities. And there should be

491
00:25:04,076 --> 00:25:06,996
Speaker 3: general sense of fairness and a general sense that your

492
00:25:07,036 --> 00:25:08,996
Speaker 3: fate doesn't rise and fall with the randomness of the

493
00:25:09,236 --> 00:25:12,956
Speaker 3: judge that's assigned to you. And if you find the

494
00:25:12,996 --> 00:25:16,156
Speaker 3: government's chart meaningful and there's ways to attack it as

495
00:25:16,236 --> 00:25:20,036
Speaker 3: not being a good representative sample, then it really pushes

496
00:25:20,076 --> 00:25:22,156
Speaker 3: towards a higher sentence. And this is a guy who

497
00:25:22,156 --> 00:25:24,876
Speaker 3: didn't plead guilty. I think it was clear Judge Kaplin

498
00:25:24,956 --> 00:25:26,516
Speaker 3: was going to find that he perjured himself, that he

499
00:25:26,596 --> 00:25:29,756
Speaker 3: witnessed hampered right, that he had never said he was sorry.

500
00:25:30,556 --> 00:25:32,596
Speaker 3: And I've always had the sense of Judgekaplin really didn't

501
00:25:32,676 --> 00:25:34,836
Speaker 3: like him, and I thought it was it was going

502
00:25:34,916 --> 00:25:37,956
Speaker 3: to be like, really a shocking sentence. But I've now

503
00:25:37,956 --> 00:25:38,756
Speaker 3: been wrong twice.

504
00:25:38,836 --> 00:25:40,836
Speaker 4: Well, I'm curious, Ricca, what's the reason for why you

505
00:25:40,836 --> 00:25:43,836
Speaker 4: think the judge went down then from the thirty to

506
00:25:43,876 --> 00:25:44,956
Speaker 4: forty that you're expecting.

507
00:25:45,596 --> 00:25:48,476
Speaker 3: Yeah, I think it'd be interesting to get the whole

508
00:25:48,516 --> 00:25:51,116
Speaker 3: transcript and see everything he said about his explanation. But

509
00:25:51,116 --> 00:25:53,676
Speaker 3: I agree with what Michael said earlier, which is, you know,

510
00:25:53,716 --> 00:25:56,436
Speaker 3: the judge runs through these factors, pluses and minuses, and

511
00:25:56,476 --> 00:25:58,556
Speaker 3: it's not really clear at the end of that where

512
00:25:58,596 --> 00:26:01,436
Speaker 3: they're going to land, right, which which ones will matter

513
00:26:01,476 --> 00:26:03,356
Speaker 3: the most, and how the math is going to come out?

514
00:26:04,356 --> 00:26:07,716
Speaker 4: Why because he didn't say anything in the transcript. To

515
00:26:07,716 --> 00:26:09,996
Speaker 4: be clear, everything he said would make you think you

516
00:26:09,996 --> 00:26:11,036
Speaker 4: would get a lot everything.

517
00:26:11,116 --> 00:26:15,076
Speaker 2: Yes, yes, If you were sitting with us in the courtroom, Rebecca,

518
00:26:15,116 --> 00:26:17,076
Speaker 2: you would have thought your forty would have gone to

519
00:26:17,156 --> 00:26:20,916
Speaker 2: sixty after about five minutes of Kaplan talking, and then

520
00:26:20,956 --> 00:26:22,836
Speaker 2: after ten minutes you might have gone to one hundred.

521
00:26:23,076 --> 00:26:24,876
Speaker 2: You might have thought, what is it? It just felt

522
00:26:24,876 --> 00:26:27,036
Speaker 2: like something weird was going to happen. But what was

523
00:26:27,076 --> 00:26:29,956
Speaker 2: weird that was happening was he was he was talking

524
00:26:29,996 --> 00:26:34,716
Speaker 2: a different game than he was playing. And I don't know,

525
00:26:34,916 --> 00:26:37,436
Speaker 2: I don't know why. I had a thought popped into

526
00:26:37,476 --> 00:26:38,676
Speaker 2: my head, and it's probably.

527
00:26:38,396 --> 00:26:39,996
Speaker 1: A completely bullshit thought.

528
00:26:40,156 --> 00:26:42,796
Speaker 2: But the only thought, the thing I couldn't get out

529
00:26:42,796 --> 00:26:47,116
Speaker 2: of my head was Barbara Freed. Sam's mom had written

530
00:26:47,116 --> 00:26:50,636
Speaker 2: a letter and in the there's a line in the

531
00:26:50,716 --> 00:26:53,676
Speaker 2: letter that she'll never see her son out out in

532
00:26:53,716 --> 00:26:54,316
Speaker 2: the world again.

533
00:26:54,796 --> 00:26:56,636
Speaker 1: And and Kaplin, I know.

534
00:26:56,636 --> 00:27:01,036
Speaker 2: That sounds this is Caplin spoke with some sympathy about

535
00:27:01,036 --> 00:27:04,796
Speaker 2: the about the parents, and I wondered if he wasn't

536
00:27:05,156 --> 00:27:07,756
Speaker 2: like thinking, give her a little hope.

537
00:27:07,956 --> 00:27:09,076
Speaker 1: You know, it's it's.

538
00:27:08,996 --> 00:27:11,756
Speaker 2: Like, don't just put him away to they're gone like

539
00:27:11,876 --> 00:27:14,716
Speaker 2: that the number, but the number is kind of arbitrary,

540
00:27:14,756 --> 00:27:16,236
Speaker 2: and it's hard to know why he picked that.

541
00:27:17,196 --> 00:27:18,956
Speaker 3: But I think you're right that the difference between the

542
00:27:18,996 --> 00:27:21,356
Speaker 3: sentence I was thinking might come and the sentence that

543
00:27:21,396 --> 00:27:25,596
Speaker 3: came is that he will have a life outside of prison.

544
00:27:26,116 --> 00:27:28,796
Speaker 3: You know, it's very, very hard to build a life

545
00:27:28,796 --> 00:27:30,756
Speaker 3: out of after being released from that length of a

546
00:27:30,796 --> 00:27:35,356
Speaker 3: prison sentence. But the expectation is he's going to have

547
00:27:35,436 --> 00:27:39,316
Speaker 3: a whole phase of his life post prison. You know,

548
00:27:39,356 --> 00:27:41,356
Speaker 3: will his parents be alive at that point? Right? That's

549
00:27:41,396 --> 00:27:43,756
Speaker 3: a different question, and that's a sad, very sad question,

550
00:27:44,116 --> 00:27:47,636
Speaker 3: but he will. He's thirty two now, he got twenty

551
00:27:47,636 --> 00:27:50,116
Speaker 3: five years. You get fifteen percent off for good time,

552
00:27:50,196 --> 00:27:51,876
Speaker 3: so twenty one years. So it will be in his

553
00:27:51,956 --> 00:27:56,236
Speaker 3: early fifties when he gets out. If he had gotten

554
00:27:56,276 --> 00:27:59,036
Speaker 3: forty something, there's really a question about whether or not

555
00:27:59,076 --> 00:28:01,676
Speaker 3: there's much life left afterwards. And I think when you

556
00:28:01,716 --> 00:28:03,436
Speaker 3: think about this, you think about it in buckets. Right,

557
00:28:03,436 --> 00:28:05,876
Speaker 3: should he be a person who functionally dies in jail?

558
00:28:06,236 --> 00:28:08,276
Speaker 3: Should he be a person where they might die in jail,

559
00:28:08,316 --> 00:28:10,716
Speaker 3: but they have some hope or do you want them

560
00:28:10,716 --> 00:28:12,756
Speaker 3: to have a real phase of life after this? And

561
00:28:12,756 --> 00:28:14,716
Speaker 3: I think Judge Kaplan granted him a phase of life

562
00:28:14,756 --> 00:28:15,156
Speaker 3: after this.

563
00:28:15,276 --> 00:28:18,276
Speaker 1: So what exactly does happen next? Can you explain that?

564
00:28:19,876 --> 00:28:22,836
Speaker 3: So there's a there's a Bueer of Prisons process for designation.

565
00:28:24,316 --> 00:28:27,396
Speaker 3: It incorporates the factors one would imagine get built in.

566
00:28:27,996 --> 00:28:29,956
Speaker 3: You know, do you have the need for any kind

567
00:28:29,956 --> 00:28:34,276
Speaker 3: of special treatment, either a medical issue, a drug issue

568
00:28:34,356 --> 00:28:36,236
Speaker 3: or there there are people of cancer and are in

569
00:28:36,276 --> 00:28:38,596
Speaker 3: prison and they're getting chemo. Right, there's so do you

570
00:28:38,596 --> 00:28:40,516
Speaker 3: need to be in a medical facility? What level of

571
00:28:40,556 --> 00:28:41,716
Speaker 3: prison do you need to be at?

572
00:28:41,796 --> 00:28:42,516
Speaker 4: Who is chaplain?

573
00:28:42,996 --> 00:28:46,956
Speaker 1: He said? He said, and I don't know what that meant.

574
00:28:47,476 --> 00:28:49,436
Speaker 2: Put him in a minimum security prison for that? With

575
00:28:49,516 --> 00:28:52,676
Speaker 2: that like the time, So what does it mean medium?

576
00:28:53,836 --> 00:28:55,716
Speaker 3: I know he said that, but it's actually not up

577
00:28:55,716 --> 00:28:57,836
Speaker 3: to Judg Kaplan. It's up to the Buer of Prisons,

578
00:28:57,876 --> 00:29:01,636
Speaker 3: and so it is he is recommending that that is

579
00:29:01,676 --> 00:29:05,796
Speaker 3: what happens, but but ultimately the Buer of prisons will decide.

580
00:29:05,876 --> 00:29:08,796
Speaker 3: And I think Michael's exactly right that one big factor

581
00:29:08,836 --> 00:29:11,556
Speaker 3: is the length of your sentence. The lowest kind of

582
00:29:11,556 --> 00:29:14,956
Speaker 3: prison is a camp, and a camp often has let's

583
00:29:14,996 --> 00:29:18,076
Speaker 3: call it permeable borders. Right inmates might be mowing the

584
00:29:18,116 --> 00:29:20,956
Speaker 3: grass outside the fence because they have six months left

585
00:29:20,956 --> 00:29:23,996
Speaker 3: and they're not likely to flee. Nobody with twenty five

586
00:29:24,036 --> 00:29:27,156
Speaker 3: years can go there at this phase of their prison stay.

587
00:29:27,756 --> 00:29:29,996
Speaker 3: So there'll be a choice about sort of where he's

588
00:29:30,036 --> 00:29:32,116
Speaker 3: going to be, and he'll be moved by the US

589
00:29:32,236 --> 00:29:36,156
Speaker 3: Marshals to that prison. The request that it be near

590
00:29:36,196 --> 00:29:37,876
Speaker 3: his parents, I expect will be honored, and so I

591
00:29:37,876 --> 00:29:39,436
Speaker 3: think you can expect he'll be moved to a prison

592
00:29:39,476 --> 00:29:43,836
Speaker 3: in California, and then he'll begin making his life there

593
00:29:43,836 --> 00:29:46,596
Speaker 3: and settling in. In the meantime, he's already hired an

594
00:29:46,636 --> 00:29:52,356
Speaker 3: appellate lawyer. There are all these deadlines that are set,

595
00:29:52,396 --> 00:29:54,836
Speaker 3: but they're extendable, and so in sometime in the next

596
00:29:56,116 --> 00:29:58,476
Speaker 3: six to nine months, let's call it, you'll see an

597
00:29:58,476 --> 00:30:02,596
Speaker 3: appealbri filed by his lawyer. You'll see the government respond.

598
00:30:03,116 --> 00:30:05,916
Speaker 3: There will be probably an argument in front of the

599
00:30:05,916 --> 00:30:09,836
Speaker 3: second Circuit, which is public people can go, and then

600
00:30:11,036 --> 00:30:13,996
Speaker 3: one of two things can happen. The Second Circuit will say,

601
00:30:14,276 --> 00:30:17,756
Speaker 3: you know, we were denying your appeal, You can appeal

602
00:30:17,796 --> 00:30:19,516
Speaker 3: to the Supreme Court, but the Supreme Court doesn't have

603
00:30:19,556 --> 00:30:21,876
Speaker 3: to take that case. They almost never do. I don't

604
00:30:21,876 --> 00:30:23,916
Speaker 3: think there are novel legal issues here that are likely

605
00:30:23,956 --> 00:30:26,636
Speaker 3: to be heard, and so if the Second Circuit denies it,

606
00:30:26,756 --> 00:30:30,476
Speaker 3: that's largely the end of the legal maneuvering. They could

607
00:30:30,556 --> 00:30:33,036
Speaker 3: also find some tiny error that's a little technical but

608
00:30:33,076 --> 00:30:37,196
Speaker 3: actually requires some additional thing, but this is mostly over

609
00:30:37,676 --> 00:30:38,236
Speaker 3: for the public.

610
00:30:38,276 --> 00:30:41,556
Speaker 2: I would say, what about how long does it take

611
00:30:41,596 --> 00:30:42,836
Speaker 2: to figure out what prison.

612
00:30:42,596 --> 00:30:43,916
Speaker 1: He's going to go to and get him there?

613
00:30:44,356 --> 00:30:48,756
Speaker 3: It takes a few months usually to do it. There's

614
00:30:48,756 --> 00:30:51,476
Speaker 3: a separate question about transportation, because he has to be

615
00:30:51,556 --> 00:30:54,076
Speaker 3: transported by the marshals. They're not just going to put

616
00:30:54,116 --> 00:30:56,796
Speaker 3: him on a commercial flight. They have a plane that

617
00:30:56,836 --> 00:30:59,236
Speaker 3: they use and buses that they use to move inmates around,

618
00:30:59,916 --> 00:31:02,996
Speaker 3: and it's it's known as being a very unpleasant experience.

619
00:31:03,116 --> 00:31:04,316
Speaker 3: They don't put you on a plane in New York

620
00:31:04,316 --> 00:31:06,716
Speaker 3: and flight to California. You often end up on a

621
00:31:06,756 --> 00:31:09,596
Speaker 3: bus to Texas and then moving back to where Since like,

622
00:31:09,636 --> 00:31:13,556
Speaker 3: there's a bopping around as they transport people in all directions,

623
00:31:14,116 --> 00:31:17,796
Speaker 3: so he'll be moved at some point he'll probably end

624
00:31:17,876 --> 00:31:19,476
Speaker 3: up spending a few nights here and there in all

625
00:31:19,476 --> 00:31:22,756
Speaker 3: different prisons, and so I think you can expect he'll

626
00:31:22,756 --> 00:31:25,916
Speaker 3: be in California six months from.

627
00:31:25,716 --> 00:31:43,716
Speaker 4: Now, Rebecca, is there anything that you want to know

628
00:31:43,716 --> 00:31:45,356
Speaker 4: about what happened today?

629
00:31:46,076 --> 00:31:47,636
Speaker 3: I don't know if you could see from where you were,

630
00:31:47,756 --> 00:31:49,796
Speaker 3: Lydia Jean, or if Michael had a better view from

631
00:31:49,796 --> 00:31:53,196
Speaker 3: where he was. But I always can't help but watch

632
00:31:53,676 --> 00:31:57,676
Speaker 3: the defendant and his family and the prosecutors, although they

633
00:31:57,676 --> 00:32:01,396
Speaker 3: always are poker faced, for the reactions to what the

634
00:32:01,476 --> 00:32:03,756
Speaker 3: sentence was, what was the reaction in the overflow room.

635
00:32:03,956 --> 00:32:07,076
Speaker 2: I had the best view of Sam, and LJ would

636
00:32:07,076 --> 00:32:10,196
Speaker 2: have had the best view of the parents of Sam.

637
00:32:10,956 --> 00:32:14,076
Speaker 2: If you were watching him and you couldn't hear what

638
00:32:14,156 --> 00:32:17,116
Speaker 2: was being said, you would have no idea from his

639
00:32:17,596 --> 00:32:20,716
Speaker 2: body language or facial expressions that it had gone one

640
00:32:20,796 --> 00:32:24,396
Speaker 2: way or the other. He was immobile, so it's very

641
00:32:24,396 --> 00:32:26,636
Speaker 2: hard to read. It was very hard to It was

642
00:32:26,716 --> 00:32:29,876
Speaker 2: very hard to read how he thought it went, or

643
00:32:29,916 --> 00:32:31,796
Speaker 2: whether he was whether he was surprised in a good

644
00:32:31,796 --> 00:32:32,796
Speaker 2: way or a bad way.

645
00:32:34,036 --> 00:32:36,156
Speaker 4: Yeah, I was sitting a few roads behind, like a

646
00:32:36,196 --> 00:32:39,636
Speaker 4: few rows behind Sam Makeminfried's parents. And I couldn't see

647
00:32:39,676 --> 00:32:42,596
Speaker 4: them the moment that the judge said the sentence, but

648
00:32:42,636 --> 00:32:45,516
Speaker 4: I was watching them throughout, and they also seemed I mean,

649
00:32:45,556 --> 00:32:48,276
Speaker 4: one thing that strikes me is how close they are,

650
00:32:48,316 --> 00:32:50,076
Speaker 4: Like at some point they had their heads like right

651
00:32:50,116 --> 00:32:53,196
Speaker 4: next to each other, like they're very much a unit.

652
00:32:54,196 --> 00:32:56,356
Speaker 4: But I also felt like they were trying their best

653
00:32:56,636 --> 00:32:58,436
Speaker 4: to kind of not be there, like their mom was

654
00:32:58,476 --> 00:33:01,316
Speaker 4: looking out the window, his dad kept had his head down,

655
00:33:02,316 --> 00:33:04,276
Speaker 4: as opposed to during the trial, where it felt like

656
00:33:04,276 --> 00:33:07,756
Speaker 4: they were really paying attention. At this time, it felt

657
00:33:07,796 --> 00:33:10,756
Speaker 4: like they were more there in body than in Spira.

658
00:33:10,876 --> 00:33:13,516
Speaker 4: Is what it felt like to me from watching from a.

659
00:33:13,476 --> 00:33:17,596
Speaker 2: Few They had zero hope that that Kaplan was going

660
00:33:17,676 --> 00:33:20,676
Speaker 2: to do do something really nice. I mean, they they

661
00:33:20,876 --> 00:33:24,156
Speaker 2: they're of the opinion that Caplan has a particular dislike

662
00:33:24,236 --> 00:33:28,196
Speaker 2: of their son, and they also think the process was

663
00:33:28,276 --> 00:33:31,716
Speaker 2: grotesquely unfair, et cetera, et cetera. So they'd already kind

664
00:33:31,716 --> 00:33:34,916
Speaker 2: of checked out. They left their hope downstairs with their

665
00:33:34,916 --> 00:33:38,516
Speaker 2: cell phones and so. But and I don't think Sam

666
00:33:38,636 --> 00:33:39,436
Speaker 2: felt any different.

667
00:33:39,596 --> 00:33:44,396
Speaker 1: I mean, my sense with Sam was probably of your mind, Rebecca.

668
00:33:44,396 --> 00:33:47,636
Speaker 2: He probably surprised it was not a bigger He got

669
00:33:47,756 --> 00:33:49,396
Speaker 2: a shorter sentence as he did.

670
00:33:50,316 --> 00:33:51,796
Speaker 1: How do you feel about it? How do you feel?

671
00:33:51,876 --> 00:33:54,036
Speaker 2: How do you feel about it? Does it feel does

672
00:33:54,076 --> 00:33:56,556
Speaker 2: it feel just to you? Do you think he nailed it?

673
00:33:56,916 --> 00:33:59,836
Speaker 2: Or do you think are And and let me frame

674
00:33:59,876 --> 00:34:01,916
Speaker 2: this in a slightly different way than Kaplin framed it.

675
00:34:02,836 --> 00:34:06,836
Speaker 2: Anybody who didn't hasn't been paying really close attention, would

676
00:34:06,876 --> 00:34:10,716
Speaker 2: leave the courtroom thinking that the assertion that the customers

677
00:34:10,756 --> 00:34:13,276
Speaker 2: that didn't get their deposits back is just like speculation

678
00:34:14,076 --> 00:34:16,796
Speaker 2: that it's you know, we don't know this is true,

679
00:34:16,996 --> 00:34:18,556
Speaker 2: and even if it is true, it's irrelevant.

680
00:34:19,556 --> 00:34:21,516
Speaker 1: I would argue with this. I'd push back on this.

681
00:34:21,596 --> 00:34:23,676
Speaker 2: If you talk to a normal person about this and

682
00:34:23,716 --> 00:34:27,356
Speaker 2: you say, this is what happened, and the customers are

683
00:34:27,356 --> 00:34:28,676
Speaker 2: not only to get their money back, but they're going

684
00:34:28,756 --> 00:34:30,036
Speaker 2: to get forty percent on top of it.

685
00:34:30,676 --> 00:34:34,356
Speaker 1: Those are the latest guesses the claims market.

686
00:34:35,516 --> 00:34:38,356
Speaker 2: The claims are trading almost at par now, which is incredible,

687
00:34:38,476 --> 00:34:41,076
Speaker 2: like this just doesn't happen, but it's happened here.

688
00:34:42,996 --> 00:34:45,356
Speaker 1: The average person has a different.

689
00:34:44,996 --> 00:34:47,196
Speaker 2: Reaction to it when they know the customers are going

690
00:34:47,236 --> 00:34:48,956
Speaker 2: to get their money back than if they think that

691
00:34:49,076 --> 00:34:53,556
Speaker 2: Sam bankmafree vaporized and stole ten billion dollars. So it

692
00:34:53,596 --> 00:34:56,436
Speaker 2: does affect the way people feel about it. And it

693
00:34:56,516 --> 00:34:59,236
Speaker 2: isn't just speculation that they're going to get their money back.

694
00:34:59,236 --> 00:35:00,956
Speaker 2: The bankruptcy people have said they're going to get their

695
00:35:00,956 --> 00:35:04,236
Speaker 2: money back now. Every time John Ray is asked to

696
00:35:04,316 --> 00:35:07,676
Speaker 2: talk about it, he tries to say that, oh, don't

697
00:35:07,676 --> 00:35:09,676
Speaker 2: get ahead of yourself. We're not sure this going to happen.

698
00:35:09,796 --> 00:35:11,356
Speaker 2: But in the bankruptcy court they said he was gonna

699
00:35:11,356 --> 00:35:13,236
Speaker 2: get their money back. And the claims market, which is

700
00:35:13,236 --> 00:35:15,516
Speaker 2: the best way to evaluate this, people are trading these

701
00:35:15,516 --> 00:35:21,236
Speaker 2: second these claims, are willing to buy them at you

702
00:35:21,236 --> 00:35:22,716
Speaker 2: can get your money back from them.

703
00:35:23,036 --> 00:35:24,876
Speaker 1: So you get ninety three cents on.

704
00:35:24,836 --> 00:35:26,836
Speaker 2: The dollar now from them because they think they're going

705
00:35:26,876 --> 00:35:28,196
Speaker 2: to get one hundred and forty.

706
00:35:28,356 --> 00:35:30,556
Speaker 1: So this isn't speculation.

707
00:35:31,796 --> 00:35:35,316
Speaker 2: So he framed it in a way that felt false

708
00:35:35,436 --> 00:35:39,236
Speaker 2: to me. Frame the way he framed it, the way

709
00:35:39,356 --> 00:35:42,716
Speaker 2: Judge Kaplan framed the whole thing twenty five years feels lenient.

710
00:35:44,036 --> 00:35:46,356
Speaker 2: It felt like it felt like an act of mercy.

711
00:35:46,636 --> 00:35:50,516
Speaker 2: Frame the way I think of it, it felt crazy, harsh,

712
00:35:51,596 --> 00:35:55,476
Speaker 2: eight felt right or something like that. So I came

713
00:35:55,516 --> 00:35:58,316
Speaker 2: out of two minds like, incredibly lenient given how he

714
00:35:58,476 --> 00:36:01,596
Speaker 2: thinks how he thinks about this thing, incredibly harsh because

715
00:36:01,596 --> 00:36:04,116
Speaker 2: he thinks of it this way, and I didn't.

716
00:36:04,156 --> 00:36:06,076
Speaker 1: I was I'm conflicted about it. I don't know.

717
00:36:06,996 --> 00:36:09,916
Speaker 2: I I reserve the right to chaeange my mind about

718
00:36:09,956 --> 00:36:12,396
Speaker 2: how I feel. But I had this kind of kind

719
00:36:12,396 --> 00:36:14,436
Speaker 2: of tooth. I got a I was.

720
00:36:14,476 --> 00:36:16,396
Speaker 1: Kind of being pulled in. My mind was being pulled

721
00:36:16,396 --> 00:36:18,276
Speaker 1: in two directions when I walked out of the courthouse.

722
00:36:18,436 --> 00:36:21,556
Speaker 3: I have a few thoughts. I think there's a deep

723
00:36:21,676 --> 00:36:27,676
Speaker 3: and interesting philosophical question about why punishment is different when

724
00:36:27,716 --> 00:36:29,876
Speaker 3: the outcome is different, and not just based on the

725
00:36:29,876 --> 00:36:34,196
Speaker 3: person's conduct. Because let's use an easy example of drunk driving.

726
00:36:34,596 --> 00:36:36,916
Speaker 3: If you drive drunk and you get stopped and there's

727
00:36:36,916 --> 00:36:39,716
Speaker 3: a breathalyzer and you're very drunk, but nothing bad happens

728
00:36:39,716 --> 00:36:42,836
Speaker 3: and you just drive home, you in the first instance

729
00:36:42,956 --> 00:36:47,716
Speaker 3: probably don't even get convicted of the crime. Maybe if

730
00:36:47,756 --> 00:36:50,636
Speaker 3: you hit someone while you're driving drunk and they die,

731
00:36:50,916 --> 00:36:56,196
Speaker 3: you get convicted of vehicular manslaughter or murder. Right, that's

732
00:36:56,276 --> 00:36:58,516
Speaker 3: kind of crazy. Two people did exactly the same thing.

733
00:36:58,556 --> 00:37:01,276
Speaker 3: One person got lucky, one person got unlucky, and the

734
00:37:01,356 --> 00:37:04,036
Speaker 3: outcome is so so different, And I'm not sure the

735
00:37:04,036 --> 00:37:06,476
Speaker 3: outcomes should be so so different based on that luck.

736
00:37:06,556 --> 00:37:09,116
Speaker 3: And if you think about it that way, then I

737
00:37:09,236 --> 00:37:11,276
Speaker 3: think it is really irrelevant that people are getting their

738
00:37:11,316 --> 00:37:15,236
Speaker 3: money back because there was no guarantee that would be true.

739
00:37:15,236 --> 00:37:15,396
Speaker 2: Now.

740
00:37:15,396 --> 00:37:18,956
Speaker 3: I know there's a dispute here about between the parties

741
00:37:18,956 --> 00:37:21,636
Speaker 3: about whether or not the money was always there or

742
00:37:21,676 --> 00:37:24,116
Speaker 3: as Judge Kaplan said, he bet on a horse and

743
00:37:24,276 --> 00:37:26,356
Speaker 3: he won. But that doesn't really right. He couldn't have

744
00:37:26,356 --> 00:37:29,636
Speaker 3: known that. So I guess one point is should it

745
00:37:29,676 --> 00:37:31,756
Speaker 3: matter whether or not they get their money back? I agree

746
00:37:31,756 --> 00:37:33,356
Speaker 3: with you, we all have a sense it should, but

747
00:37:33,676 --> 00:37:35,916
Speaker 3: maybe it true. I think that's the first thing. I

748
00:37:35,956 --> 00:37:38,596
Speaker 3: think the second thing to remember is that it's two

749
00:37:38,676 --> 00:37:41,716
Speaker 3: years later and they don't have their money back. So

750
00:37:41,796 --> 00:37:43,636
Speaker 3: it's all well and good to say, well, they're gonna

751
00:37:43,636 --> 00:37:47,036
Speaker 3: get it, and maybe for institutional investors or wealthy individuals

752
00:37:47,236 --> 00:37:50,036
Speaker 3: if it's coming, it's okay, But for a lot of

753
00:37:50,036 --> 00:37:52,156
Speaker 3: people it's not okay to have been without it for

754
00:37:52,156 --> 00:37:55,196
Speaker 3: two years and it's been a real hardship, and so

755
00:37:56,796 --> 00:37:59,276
Speaker 3: I'm not sure that they will get it back underminds

756
00:37:59,276 --> 00:38:00,636
Speaker 3: that they are all good.

757
00:38:01,036 --> 00:38:03,036
Speaker 1: I'm just saying it's different. I'm just saying it's different.

758
00:38:04,436 --> 00:38:05,396
Speaker 1: It feels different.

759
00:38:06,076 --> 00:38:08,356
Speaker 3: What do I think on the sentencing itself? I would

760
00:38:08,396 --> 00:38:13,716
Speaker 3: say I'm a softy. Actually, I always found sentencing super

761
00:38:13,756 --> 00:38:15,676
Speaker 3: hard when I was a prosecutor, and I always found

762
00:38:15,716 --> 00:38:20,636
Speaker 3: it super sad because in all the years of standing

763
00:38:20,716 --> 00:38:23,916
Speaker 3: up and asking judges to send people to jail, I

764
00:38:23,956 --> 00:38:26,556
Speaker 3: can count on one hand how many people didn't have

765
00:38:26,596 --> 00:38:28,436
Speaker 3: a family right. The number of people from whom there

766
00:38:28,476 --> 00:38:32,956
Speaker 3: were no sad collateral consequences is almost zero. Almost everyone

767
00:38:32,996 --> 00:38:36,396
Speaker 3: has people who care about them and innocent people who

768
00:38:36,396 --> 00:38:38,516
Speaker 3: didn't do anything wrong. I think we can debate if

769
00:38:38,796 --> 00:38:41,236
Speaker 3: sam Bake Bintried's parents are in that category or not,

770
00:38:41,436 --> 00:38:44,716
Speaker 3: because they had some interesting involvement here. But there are

771
00:38:44,756 --> 00:38:47,716
Speaker 3: people whose lives are terribly touched and they didn't do anything,

772
00:38:48,396 --> 00:38:51,276
Speaker 3: and so sentencing is always hard, and I'm just not

773
00:38:51,436 --> 00:38:57,196
Speaker 3: convinced that sentences this long serve much purpose ever, almost

774
00:38:58,236 --> 00:39:01,236
Speaker 3: unless you need to incapacitate someone. So there are certainly

775
00:39:01,916 --> 00:39:06,396
Speaker 3: terrorists murderers where you think, if we don't lock you up,

776
00:39:06,436 --> 00:39:11,956
Speaker 3: you will never stop. It was his fifth securities fraud conviction.

777
00:39:12,036 --> 00:39:14,396
Speaker 3: He was like seventy something years old. That guy was

778
00:39:14,436 --> 00:39:17,236
Speaker 3: just gonna keep going. There was no stopping him. But

779
00:39:17,356 --> 00:39:21,276
Speaker 3: mostly that's not true. And so when you're just thinking

780
00:39:21,316 --> 00:39:26,716
Speaker 3: about just punishment, and I know victims want retribution and vengeance,

781
00:39:27,276 --> 00:39:29,436
Speaker 3: but there's a reason we don't let victims decide what

782
00:39:29,556 --> 00:39:33,436
Speaker 3: happens to perpetrators, and so I just don't know that

783
00:39:33,436 --> 00:39:35,596
Speaker 3: it serves a purpose. It all feels very sad to me.

784
00:39:37,236 --> 00:39:41,556
Speaker 3: I recognize that we people need to have this notion

785
00:39:41,636 --> 00:39:45,276
Speaker 3: of general deterrence, that consequences will prevent other people from

786
00:39:45,356 --> 00:39:47,956
Speaker 3: doing it, but there are studies actually that courts and

787
00:39:47,996 --> 00:39:52,356
Speaker 3: prosecutors all ignore that show that there is virtually no

788
00:39:52,756 --> 00:39:56,316
Speaker 3: improvement at the level of general deterrence for sentences that

789
00:39:56,356 --> 00:40:00,516
Speaker 3: are over I think I'm now struggling to remember about

790
00:40:00,556 --> 00:40:03,476
Speaker 3: five years. So when you raise the maximum sentence for

791
00:40:03,596 --> 00:40:05,796
Speaker 3: murder from five to twenty five, it does not change

792
00:40:05,796 --> 00:40:08,676
Speaker 3: how many murders happen. So we talk about general deterrence,

793
00:40:08,676 --> 00:40:10,156
Speaker 3: and I think that it's very important, and there's no

794
00:40:10,316 --> 00:40:13,636
Speaker 3: question this is being followed closely. But if you had

795
00:40:13,676 --> 00:40:15,516
Speaker 3: gone to jail for fifteen years were there are really

796
00:40:15,516 --> 00:40:16,756
Speaker 3: a lot of people who are going to say, well,

797
00:40:16,756 --> 00:40:18,676
Speaker 3: in that case, I guess I'll do it, And I

798
00:40:18,676 --> 00:40:19,316
Speaker 3: think the answer is no.

799
00:40:19,636 --> 00:40:20,916
Speaker 1: Al J. How do you feel about it?

800
00:40:22,316 --> 00:40:24,636
Speaker 4: I mean, yeah, I agree with Rebecca and that it

801
00:40:24,716 --> 00:40:28,556
Speaker 4: just seems really hard in general to justify sending someone

802
00:40:28,636 --> 00:40:32,676
Speaker 4: to prison for decades in any circumstance.

803
00:40:33,596 --> 00:40:36,476
Speaker 1: I think that's a good note to end on. Thank you,

804
00:40:36,676 --> 00:40:37,436
Speaker 1: thanks for doing this.

805
00:40:38,236 --> 00:40:38,956
Speaker 4: Thanks Rebecca.

806
00:40:39,796 --> 00:40:42,156
Speaker 3: It's great to be back with you, guys. It's been

807
00:40:42,196 --> 00:40:42,836
Speaker 3: a real trip.

808
00:40:47,076 --> 00:40:51,036
Speaker 2: Judging Sam is hosted by Me, Michael Lewis, Lydia. Jane

809
00:40:51,116 --> 00:40:55,156
Speaker 2: Katt is our court reporter. This episode was produced by

810
00:40:55,156 --> 00:40:59,876
Speaker 2: Ariella Markowitz and edited by Jacob Goldstein. It was engineered

811
00:40:59,916 --> 00:41:04,116
Speaker 2: by Sarah Bruguer. The music was composed but Matthias Bossi

812
00:41:04,476 --> 00:41:08,596
Speaker 2: and John Evans a stell Wagon Seponette. Judging Sam is

813
00:41:08,596 --> 00:41:12,316
Speaker 2: a production of Pushkin Industries. To find more Pushkin podcasts,

814
00:41:12,556 --> 00:41:16,196
Speaker 2: listen on the iHeartRadio app, Apple Podcasts, or wherever you

815
00:41:16,236 --> 00:41:19,116
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816
00:41:19,116 --> 00:41:22,316
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817
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818
00:41:26,556 --> 00:41:29,556
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