WEBVTT - Judging Sam: The Aftermath 0:00:15.316 --> 0:00:24.076 Pushkin. Welcome to Judging Sam the trial of Sam Bankman Freed. 0:00:24.516 --> 0:00:29.356 I'm Michael Lewis. We're recording this on Tuesday, November seventh, 0:00:29.756 --> 0:00:32.956 five days after Sam was found guilty on all seven counts. 0:00:33.596 --> 0:00:37.436 I'm here with lawyer and former SDNY prosecutor Rebecca Mermelsty 0:00:37.876 --> 0:00:42.596 now of Omelvini and Myers, and our intrepid reporter Lydia 0:00:42.676 --> 0:00:43.236 Jean Cott. 0:00:43.716 --> 0:00:46.036 Hello, Rebecca, Hey Michael, nice to be back with you. 0:00:46.716 --> 0:00:49.596 Good to see you and l J. Glad we're at 0:00:49.596 --> 0:00:51.636 the end of this. Why don't you take it away 0:00:51.876 --> 0:00:54.076 since you were there for the last day and the verdict. 0:00:54.236 --> 0:00:57.436 Michael, I wanted to start by asking you a question. 0:00:58.716 --> 0:01:00.516 So you know you've spent a year and a half 0:01:00.716 --> 0:01:03.756 writing about Sam Bankman Freed. We spent a month working 0:01:03.756 --> 0:01:06.796 closely together covering this trial. What did you think when 0:01:06.796 --> 0:01:07.676 the verdict came out? 0:01:09.196 --> 0:01:12.116 My mind reeled back to a conversation I had with 0:01:12.196 --> 0:01:15.516 Sam when he was under house arrest, when I asked 0:01:15.556 --> 0:01:18.436 him what he thought the odds were that he could 0:01:18.716 --> 0:01:21.276 come out of this with anything but a conviction, and 0:01:21.316 --> 0:01:23.796 he said he thought it was about ten percent. And 0:01:23.836 --> 0:01:26.956 I remember thinking I wouldn't put it there, I'd put 0:01:26.956 --> 0:01:28.836 it had a three to five is what I thought, 0:01:29.236 --> 0:01:31.196 Roughly the odds that the New York Jets win the 0:01:31.236 --> 0:01:34.556 Super Bowl after Aaron Rodgers is hurt kind of thing. 0:01:34.676 --> 0:01:38.116 And so going in it was an odd event, right, 0:01:38.476 --> 0:01:41.796 because even Rebecca was saying weeks ago, like one hundred 0:01:41.836 --> 0:01:44.476 out of one hundred prosecutors, she knows what'd say, this 0:01:44.516 --> 0:01:46.716 thing is going to end with a conviction. There was 0:01:46.756 --> 0:01:50.516 this should have been a total absence of suspense, like, 0:01:50.596 --> 0:01:52.836 of course, this is what's going to happen. And yet 0:01:52.956 --> 0:01:56.956 even so this still a little suspense. And this suspense 0:01:56.996 --> 0:01:59.156 comes from you never know what people are going to do. 0:01:59.676 --> 0:02:02.156 There are twelve people on this jury. You never know 0:02:02.236 --> 0:02:04.396 what's going through their heads. They've heard a kind of 0:02:04.476 --> 0:02:06.916 weird slice of a story and you don't know how 0:02:06.916 --> 0:02:11.636 they react. So even now it seemed to me a 0:02:11.636 --> 0:02:14.156 certain thing that he was going to be convicted. And 0:02:14.196 --> 0:02:16.196 even though if I'd been on the jury, I'd devoted 0:02:16.236 --> 0:02:19.876 to convict, I felt a little shock when he was convicted. 0:02:20.796 --> 0:02:23.076 It's an odd contradiction. What did you think? 0:02:23.476 --> 0:02:25.316 It felt like that in the courtroom too. We all 0:02:26.156 --> 0:02:29.076 were expecting it, But then when it happened, it felt 0:02:29.116 --> 0:02:32.156 a little shocking. And also I think what stood up 0:02:32.156 --> 0:02:35.756 to us is it felt so grave. And I'm curious, Rebecca, 0:02:35.916 --> 0:02:38.836 as a prosecutor, you must have been in the courtroom 0:02:38.876 --> 0:02:42.156 when convictions like this have happened. What's it feel like 0:02:42.556 --> 0:02:43.876 for the prosecutor that moment. 0:02:44.956 --> 0:02:47.916 Yeah, I think it does feel very grave. And I 0:02:47.956 --> 0:02:51.996 think that even when you have every confidence in the outcome, 0:02:52.076 --> 0:02:57.356 Michael's right, that there's a strange suspense as you watched 0:02:57.396 --> 0:03:00.876 the drama unfold. And I imagine I wasn't in the courtroom, 0:03:00.996 --> 0:03:03.836 litty Gene, but I imagine it unfolded as it always does, 0:03:03.836 --> 0:03:07.916 which is, there's a report that the verdict is in, 0:03:08.476 --> 0:03:11.236 and the jury files in right, and they and they 0:03:11.756 --> 0:03:14.116 pass the envelope to the judge and the judge looks 0:03:14.116 --> 0:03:16.396 at it and everyone's watching the judge's face read it, 0:03:16.716 --> 0:03:19.156 and the judge passes it back and it's kind of dramatic. 0:03:19.596 --> 0:03:22.996 And so I think that is how prosecutors feel too, 0:03:23.396 --> 0:03:24.276 just like everyone else. 0:03:24.836 --> 0:03:27.676 And I'm curious, you know, moving to the sentencing, you 0:03:27.716 --> 0:03:30.676 know it's not scheduled until the end of March, which 0:03:30.956 --> 0:03:34.596 feels very far away. What's happening right now, like what's 0:03:34.596 --> 0:03:36.276 going to happen between now and March. 0:03:36.556 --> 0:03:38.356 Yeah, so it does feel far away, but I think 0:03:38.396 --> 0:03:41.916 not at all unusual. The typical schedule is probably one 0:03:41.996 --> 0:03:45.396 hundred and twenty plus days, and the biggest reason for 0:03:45.436 --> 0:03:48.476 that is that the probation department has to prepare what's 0:03:48.516 --> 0:03:52.356 called a pre sentence report. It's a big document. It's 0:03:52.396 --> 0:03:54.276 kind of have all kinds of information in it for 0:03:54.316 --> 0:03:57.276 the judge to consider it sentencing, and it's going to 0:03:57.356 --> 0:04:00.516 have information about this offense and what happened here, even though, 0:04:00.556 --> 0:04:02.876 of course in this case the judge presided over the 0:04:02.916 --> 0:04:05.356 trial and heard it. But it's also going to have 0:04:05.436 --> 0:04:08.516 all kinds of information about the defendant. The defendant will 0:04:08.516 --> 0:04:12.276 be interviewed, Sam Bankmin Freed, family and friends may be interviewed. 0:04:12.676 --> 0:04:17.316 It often has very personal information about the circumstances of 0:04:17.316 --> 0:04:19.156 someone's life. I'm not sure that's going to be the 0:04:19.196 --> 0:04:23.196 case here, but often people who find themselves in mess 0:04:23.236 --> 0:04:25.916 with the criminal justice system have been victims of all 0:04:25.996 --> 0:04:29.716 kinds of things in life, of circumstance, of family issues, 0:04:29.716 --> 0:04:33.116 of medical issues, and so all that information gets compiled 0:04:33.196 --> 0:04:35.636 and put into this document, and that's just time consuming, 0:04:35.756 --> 0:04:37.956 and that's the biggest reason I think that there's so 0:04:38.036 --> 0:04:40.676 much of a delay. And then, of course the parties 0:04:40.796 --> 0:04:44.276 will submit written submissions to the judge, both the government 0:04:44.356 --> 0:04:48.476 and Sam Bankmin Freed's lawyers. His may be accompanied by 0:04:49.036 --> 0:04:52.716 letters of support from family and friends and people who 0:04:52.796 --> 0:04:56.436 have something positive to say about him that's not about 0:04:56.436 --> 0:04:59.236 this case, right, that no one is all good or 0:04:59.276 --> 0:05:02.516 all bad, and he was a person and he, you know, 0:05:02.556 --> 0:05:05.076 I'm sure has people who care about him and want 0:05:05.116 --> 0:05:07.316 to talk about aspects of him as a person that's 0:05:07.356 --> 0:05:07.916 not just this. 0:05:09.236 --> 0:05:12.596 Rebecca, I'm curious if you would make a guess at 0:05:12.596 --> 0:05:13.956 what his sentence is going to be. 0:05:14.676 --> 0:05:17.436 This is a dangerous game, I think in terms of predicting, 0:05:17.476 --> 0:05:20.836 because I just I don't think it's possible to know. 0:05:22.516 --> 0:05:27.036 I would be very surprised to see something less than 0:05:27.036 --> 0:05:31.716 ten years, and pretty surprised to see something north of thirty. 0:05:32.676 --> 0:05:34.716 I tell you why, I asked, because I've been polling 0:05:35.076 --> 0:05:38.836 his lawyers, people close to the case, and the numbers 0:05:38.876 --> 0:05:42.116 are all over the map. How do you think about it? 0:05:42.116 --> 0:05:44.996 Though, I think it's somewhat of a gut instinct, having 0:05:45.356 --> 0:05:47.916 just been at a lot of sentencing, so it's hard 0:05:47.956 --> 0:05:50.796 to put in towards exactly how we get there. I 0:05:50.836 --> 0:05:53.196 think here, and we've talked about this a little bit before, 0:05:53.556 --> 0:05:58.636 the sentencing guidelines are basically useless because the recommended sentence, 0:05:58.716 --> 0:06:01.196 because the dollar amounts are so high, is going to 0:06:01.196 --> 0:06:04.236 be life and that's just not like a meaningful, helpful 0:06:04.316 --> 0:06:07.476 data point. There's also no mandatory minimum, so in some 0:06:07.516 --> 0:06:10.556 cases you would have a floor, we don't have one. 0:06:10.716 --> 0:06:13.756 I spent years in the securities fraud unit in the 0:06:13.796 --> 0:06:16.076 Southern District of New York that did a lot of 0:06:16.076 --> 0:06:21.516 white collar sentencings, and I think for the average white 0:06:21.556 --> 0:06:25.476 collar defendant, it's really unusual. It's really unusual to get 0:06:25.516 --> 0:06:29.356 over fifteen, just anecdotally, like, not for any particular reason. 0:06:29.356 --> 0:06:31.956 It just you don't see it that much. And I 0:06:31.956 --> 0:06:33.756 think part of the reason you don't see it that 0:06:33.876 --> 0:06:37.676 much is that for the most part, and these are 0:06:37.716 --> 0:06:41.596 broad generalizations, to be clear, but I think judges are 0:06:41.876 --> 0:06:46.116 much less worried about incapacitation in a white collar case 0:06:46.156 --> 0:06:48.356 than they are in a violence case. Right, So I'm 0:06:48.356 --> 0:06:51.836 thinking about the purposes of sentencing, and there's statutory guidance 0:06:51.836 --> 0:06:54.156 on this. It has a number of purposes. Right, it's 0:06:54.156 --> 0:06:58.156 supposed to provide just punishment. It's supposed to deter not 0:06:58.236 --> 0:07:00.876 just the defendant who's being sentenced from committing future crimes, 0:07:00.916 --> 0:07:04.516 but offer something that's called general deterrence. The public should 0:07:04.556 --> 0:07:07.276 know this is serious and they shouldn't do it. And 0:07:07.356 --> 0:07:09.996 sometimes you have someone who's so violent and so dangerous 0:07:10.356 --> 0:07:12.596 that the court feels that the only way to keep 0:07:12.596 --> 0:07:14.356 the public safe from them is to get them off 0:07:14.356 --> 0:07:17.916 the streets, you know, permanently or until they're very old. Right, 0:07:18.196 --> 0:07:20.716 That's mostly not true. In a white collar case. The 0:07:20.796 --> 0:07:23.436 chances that Sam Bankman freed, whatever amount of time he 0:07:23.476 --> 0:07:26.076 serves in prison, will be in a position to commit 0:07:26.116 --> 0:07:30.476 a enormous financial fraud again is almost zero. So that's 0:07:30.516 --> 0:07:33.236 not a concern. And that's generally true, I think. And 0:07:33.276 --> 0:07:38.036 that's why you rarely see sentences super super super super 0:07:38.116 --> 0:07:41.116 high in the white collar space because judges don't think 0:07:41.116 --> 0:07:44.636 it's necessary. Why do I think it's got to be 0:07:44.676 --> 0:07:48.676 more than ten because you see white collar defendants get ten, eleven, 0:07:48.756 --> 0:07:52.556 twelve years big huge frauds, you know, and this is 0:07:52.596 --> 0:07:55.756 a big, huge fraud, right, And so I just think 0:07:55.796 --> 0:07:58.476 anything less than that would seem kind of not enough 0:07:58.516 --> 0:08:01.836 to a judge. And then I think you think about 0:08:01.836 --> 0:08:06.356 general deterrence, and I predict that Judge Caplin's going to 0:08:06.356 --> 0:08:10.636 talk about general deterrence at sentencing because this case had 0:08:10.636 --> 0:08:13.036 a lot of publicity and crypto is still kind of 0:08:13.756 --> 0:08:16.996 an emerging area, and so a lot of judges will 0:08:16.996 --> 0:08:19.356 say they don't believe in the concept of general deterrence. 0:08:19.356 --> 0:08:21.716 They don't really believe that the sentence imposed on one 0:08:21.756 --> 0:08:25.476 person affects the behavior of the public. But here there's 0:08:25.476 --> 0:08:27.436 a strong argument that it really might. So I think 0:08:27.436 --> 0:08:29.756 you're going to see that be a driving force. 0:08:30.316 --> 0:08:33.276 Does he get punished for testifying on his own behalf? 0:08:33.356 --> 0:08:33.556 Yes? 0:08:34.836 --> 0:08:35.516 How much? 0:08:35.676 --> 0:08:38.316 I think the answer to these things is definitely yes, 0:08:38.436 --> 0:08:42.076 But how much is hard to say. There are systemic 0:08:42.156 --> 0:08:44.796 frameworks that mean that the answer is yes, and then 0:08:44.836 --> 0:08:49.156 there's the practical reality. So, as a systemic framework issue, 0:08:49.716 --> 0:08:52.796 if he had pled guilty to everything, no negotiated benefit 0:08:52.836 --> 0:08:55.236 with the government, just pled what we would call open 0:08:55.316 --> 0:08:58.756 without any particular agreement, necessarily, he would have gotten a 0:08:58.876 --> 0:09:02.716 three point reduction under the guidelines for what's called acceptance 0:09:02.716 --> 0:09:05.476 of responsibility. And so I think we've talked about the 0:09:05.476 --> 0:09:09.076 guidelines before. But it's essentially a big algorithm for sentences, 0:09:09.316 --> 0:09:12.836 and it spits out a recommended sentence. There's pluses and minuses, 0:09:12.916 --> 0:09:16.356 and acceptance of responsibility is a three level reduction, So 0:09:16.396 --> 0:09:19.516 that's going to correspond to some reduction in a recommended 0:09:19.556 --> 0:09:22.196 sentence now here, because the guidelines are so so so high, 0:09:22.196 --> 0:09:25.796 they're actually literally off the charts, it doesn't actually change 0:09:25.836 --> 0:09:29.916 the number it spits out. But holistically, the judge recognizes 0:09:29.996 --> 0:09:31.836 this person made a mistake and then they admitted it, 0:09:31.836 --> 0:09:34.716 and they took responsibility, and they didn't force anyone to 0:09:34.756 --> 0:09:36.956 prove it, and they didn't dispute it, and they saved 0:09:36.956 --> 0:09:39.876 everyone in the time and energy, and that has value. 0:09:40.116 --> 0:09:44.196 So there's that three points. People also, prosecutors and defense 0:09:44.276 --> 0:09:47.796 layers talk about a trial penalty, and there they're not 0:09:47.836 --> 0:09:53.076 talking about a numerical algorithm. They're talking about holistically, not 0:09:53.276 --> 0:09:57.236 just that the judge punishes you for having not accepted responsibility, 0:09:57.796 --> 0:10:00.876 but that the level of detail and understanding the judge 0:10:00.916 --> 0:10:04.956 has about what you did is very, very different. If 0:10:04.996 --> 0:10:08.716 that judge sits for days or weeks listening to the evidence, 0:10:09.116 --> 0:10:10.916 then if they read a submission from the government that 0:10:11.236 --> 0:10:14.836 gives him the details, right, and so some judges kind 0:10:14.876 --> 0:10:17.276 of really that changes the way they view a defendant. 0:10:17.596 --> 0:10:19.396 It's hard to measure, but you have the sense that 0:10:19.436 --> 0:10:22.716 it's changing the sentence. And then I think testifying fits 0:10:22.716 --> 0:10:24.676 into both of those in the same way, which is 0:10:25.316 --> 0:10:28.236 there is in those same guidelines a two point enhancement 0:10:28.316 --> 0:10:33.036 for obstructing justice, which includes testifying in a perjurious way. Lying. 0:10:33.996 --> 0:10:34.196 Yeah. 0:10:34.316 --> 0:10:36.276 Again, here it doesn't actually move the math because the 0:10:36.276 --> 0:10:39.116 math is going to be life. But also the judge 0:10:39.116 --> 0:10:43.116 feels like, you know, what is wrong with you? Why 0:10:43.116 --> 0:10:45.636 did you do this? And my experience as a prosecutor 0:10:45.676 --> 0:10:49.156 is that judges are much much much more offended when 0:10:49.196 --> 0:10:53.676 defendants lie to them or in their courtroom then about 0:10:53.716 --> 0:10:56.516 the defendants lies that preceded it and brought them to 0:10:56.556 --> 0:10:58.876 the court room. So you know, it comes with I 0:10:58.916 --> 0:11:00.756 think it comes with the risk of a heavy consequence. 0:11:01.076 --> 0:11:04.556 Probably we won't know what would it have been and 0:11:04.556 --> 0:11:06.436 what it is. We won't get that kind of clarity 0:11:06.596 --> 0:11:07.756 from the ultimate sentence. 0:11:09.556 --> 0:11:12.956 You read the transcripts of Sam's testimony under cross Yeah, 0:11:13.396 --> 0:11:15.276 what's the first lie that jumped out at you? And 0:11:15.596 --> 0:11:17.996 what was the kind of biggest lie that jumped out you. 0:11:18.396 --> 0:11:20.636 To me, the thing that jumped out the most about 0:11:20.636 --> 0:11:24.076 his testimony was actually not what's what's a lie and 0:11:24.116 --> 0:11:28.836 what's true? It's how different he was on direct than 0:11:28.876 --> 0:11:31.636 he was on Cross. And it's interesting to me because 0:11:32.196 --> 0:11:35.756 prosecutors always talk about in closing and defense lawyers do too, 0:11:36.516 --> 0:11:39.596 what a witness's demeanor was, how you should evaluate if 0:11:39.596 --> 0:11:42.316 they were telling the truth. And one thing that all 0:11:42.356 --> 0:11:44.756 lawyers point to when arguing about whether or not a 0:11:44.796 --> 0:11:48.276 witness should or shouldn't be believed is that difference, right, 0:11:49.036 --> 0:11:51.356 Were they different when asked questions by one side than 0:11:51.396 --> 0:11:55.916 the other. And so you expect and I'm sure this 0:11:55.996 --> 0:11:59.676 did happen that Sam's lawyers talk to him about not 0:11:59.756 --> 0:12:01.836 just what his demeanor would be like when they ask questions, 0:12:01.836 --> 0:12:04.356 but what it should be like with the government and 0:12:04.716 --> 0:12:07.316 hard to know sort of how we got where we are. 0:12:08.076 --> 0:12:11.596 But he really did not take that advice to heart, 0:12:12.636 --> 0:12:16.396 and so he was giving long explanations and kind of 0:12:16.556 --> 0:12:22.076 chatty and engaged on direct and I'm cross he was 0:12:22.356 --> 0:12:25.836 very short. I don't remember, I don't remember. I'm not sure. 0:12:26.716 --> 0:12:29.596 He must know his lawyers must know that these clips 0:12:29.636 --> 0:12:33.116 exist of him saying things to the contrary, and it's 0:12:33.156 --> 0:12:33.836 not a good look. 0:12:34.476 --> 0:12:36.596 Yeah, you know where I shot up in my seat 0:12:36.836 --> 0:12:39.276 in the courtroom. It was such a trivial moment. But 0:12:39.356 --> 0:12:41.196 where I just went, oh my god, why are you 0:12:41.276 --> 0:12:43.796 doing this? Was when they asked him if he had 0:12:43.836 --> 0:12:46.356 taken a private plane to the super Bowl, and he 0:12:46.396 --> 0:12:49.756 didn't remember. I was on that plane with him, and 0:12:50.676 --> 0:12:53.676 it's very easy to remember. Why bother to even do that? 0:12:53.996 --> 0:12:56.756 It was a bizarre It was a bizarre sort of performance, 0:12:56.756 --> 0:12:59.476 and I didn't understand it. On the last question on 0:12:59.476 --> 0:13:01.756 this because I don't want to lose this. How unusual 0:13:01.876 --> 0:13:04.156 is it? You and I both thought you thought I 0:13:04.156 --> 0:13:06.076 think more strongly than I did. But I still kind 0:13:06.076 --> 0:13:08.316 of agreed with you that he was going to change 0:13:08.356 --> 0:13:10.796 his mind and not testify. I was persuaded it was 0:13:10.796 --> 0:13:13.316 such a bad idea that he just wouldn't do it. 0:13:13.316 --> 0:13:15.436 It was a bad idea, and he did it. How 0:13:15.516 --> 0:13:19.236 often do you see someone who is in his situation 0:13:19.516 --> 0:13:20.356 take the stand. 0:13:21.036 --> 0:13:26.676 There are consequences to testifying and being convicted, and so 0:13:26.916 --> 0:13:29.436 even if you expect that you're going to be convicted, 0:13:30.196 --> 0:13:32.596 you're paying a heavy price for using your hail. Mary pass, 0:13:32.636 --> 0:13:35.276 it's probably not going to work, and so I don't 0:13:35.276 --> 0:13:37.476 know that most people make the decision, which is why 0:13:37.516 --> 0:13:39.276 I did not think that Sam was going to testify. 0:13:39.476 --> 0:13:44.436 For sure, people generally speaking don't testify that much, I think, 0:13:44.476 --> 0:13:47.356 no matter how severe the evidence, you sometimes see it 0:13:47.396 --> 0:13:50.836 from someone who has some kind of message they want 0:13:50.876 --> 0:13:54.876 to share, Right, So it's not really about being acquitted, 0:13:55.156 --> 0:13:57.756 it's about using the platform. You see it sometimes in 0:13:57.876 --> 0:14:00.676 terrorism cases, right, someone who gets on the stand and 0:14:00.716 --> 0:14:04.156 says death to America. It's not helping their cause, but 0:14:04.196 --> 0:14:08.036 that's really not their purpose. And sometimes you see it 0:14:08.076 --> 0:14:12.556 from people who can't accept the consequence and want to 0:14:12.596 --> 0:14:15.516 try to give their explanation. But it's uncommon relatively speaking. 0:14:15.876 --> 0:14:19.596 Right, what other things can they can cap and consider 0:14:20.356 --> 0:14:22.796 when he's deciding on the sense? 0:14:22.916 --> 0:14:26.596 Yeah, so almost anything is the answer. I mean, obviously 0:14:26.636 --> 0:14:30.996 there's some impermissible things, but there are statutory factors like 0:14:31.036 --> 0:14:34.596 the nature and circumstances of the offense, the need for 0:14:35.076 --> 0:14:40.796 just punishment, the need to avoid unwanted sentencing disparities, which 0:14:40.836 --> 0:14:44.636 is lawyers speak for it should be fair relative to 0:14:44.676 --> 0:14:49.156 other people who are similarly situated. Now here who's similarly situated, 0:14:49.236 --> 0:14:51.556 is of course a question what's the right benchmark to 0:14:51.596 --> 0:14:54.556 compare it to. I think a lot of people have 0:14:54.676 --> 0:14:57.476 made the point that the closest analogy is maybe made 0:14:57.516 --> 0:15:01.076 Off in terms of you know, size and loss and 0:15:01.116 --> 0:15:01.796 that kind of thing. 0:15:02.476 --> 0:15:02.596 You know. 0:15:02.716 --> 0:15:07.036 On the other hand, you know, Sam is relatively speaking, 0:15:07.116 --> 0:15:09.436 a younger person and made Off it's spent a essentially 0:15:09.476 --> 0:15:14.036 a lifetime doing it. Here it's a narrower contained time. 0:15:14.676 --> 0:15:16.836 It doesn't seem like the right analogy to me to 0:15:16.876 --> 0:15:20.476 think about how much time Sam Bankman Freed should get. Right, 0:15:20.476 --> 0:15:22.636 if Madeoff had gotten twenty five years, that probably would 0:15:22.636 --> 0:15:25.076 have been a life sentence too, didn't It was kind 0:15:25.116 --> 0:15:27.956 of academic. But I think the judge can consider almost 0:15:27.996 --> 0:15:30.756 anything right. The judge can consider a person's medical conditions. 0:15:31.276 --> 0:15:35.196 The judge can consider childhood trauma. I'm not suggesting that 0:15:35.196 --> 0:15:38.836 exists here. I have no idea, but difficult life circumstances, 0:15:40.076 --> 0:15:42.876 family members. You know, you sometimes see arguments that a 0:15:42.916 --> 0:15:46.036 defendant has a child or a parent who needs care 0:15:46.076 --> 0:15:47.956 and the defendant sort of needs to be there. So 0:15:48.836 --> 0:15:49.676 almost anything. 0:15:51.196 --> 0:15:53.716 The jury wasn't allowed to hear it. But do you 0:15:53.756 --> 0:15:56.996 think it would matter to Kaplan to learn that the 0:15:57.036 --> 0:15:58.636 customers were going to get their money back. 0:15:58.796 --> 0:16:01.516 It's a great question, and I think we'll find out 0:16:01.876 --> 0:16:04.516 right certainly, that will be something that happens at sentencing. 0:16:04.556 --> 0:16:08.996 There's going to be this discussion on balance. I don't 0:16:09.196 --> 0:16:11.436 think so, because I think what kaplain will say is 0:16:11.636 --> 0:16:15.596 that was just dumb luck, right, It wasn't that. For example, 0:16:15.636 --> 0:16:19.116 you did this then of your own volition, you paid 0:16:19.156 --> 0:16:21.756 everybody back before you got caught, and so, yes, you 0:16:21.796 --> 0:16:25.756 still committed the crime, but you've demonstrated that you're sorry 0:16:25.796 --> 0:16:27.396 and you learned your lesson and you wanted to do 0:16:27.396 --> 0:16:30.636 the right thing here. Just by sheer luck of some 0:16:30.876 --> 0:16:33.516 other investment. It looks like there's enough money to pay 0:16:33.516 --> 0:16:37.756 everyone back. It doesn't really change what his culpability is. 0:16:37.916 --> 0:16:40.836 And so maybe on the balance, if you had some 0:16:42.396 --> 0:16:45.796 little old ladies, you know, submitting letters at sentencing talking 0:16:45.836 --> 0:16:47.636 about how they lost their life savings and now they 0:16:47.676 --> 0:16:53.156 couldn't afford you know, milk and eggs, maybe that would 0:16:53.196 --> 0:16:55.196 move the judge. But I don't think it's going to 0:16:55.236 --> 0:16:55.716 matter here. 0:16:56.356 --> 0:16:58.276 So I have a question. There's this other trial I 0:16:58.276 --> 0:17:01.796 write that scheduled early in March, where there's a whole 0:17:01.796 --> 0:17:04.276 set of other charges that are being brought against Sam Macmonfreed. 0:17:04.916 --> 0:17:06.916 What are the chances you think that that trial is 0:17:06.956 --> 0:17:07.556 going to happen. 0:17:08.356 --> 0:17:12.036 I don't know. On balance, I don't think it should happen. 0:17:12.636 --> 0:17:16.156 But it's a little complicated because some of the charges 0:17:16.196 --> 0:17:19.156 that are in round two are essentially the same charges 0:17:19.156 --> 0:17:22.676 has actually existed in round one. The first trial involved 0:17:22.716 --> 0:17:25.916 the substantive count, but it didn't include the conspiracy or 0:17:25.956 --> 0:17:28.676 vice versa, and so it's all the same conduct. It's 0:17:28.716 --> 0:17:33.796 all the same core wrongdoing. There are a few things 0:17:33.836 --> 0:17:37.916 like the FCPA charge, the foreign bribery the Foreign Corrupt 0:17:38.036 --> 0:17:42.556 Practices Act, which prohibits bribery of foreign officials. So there 0:17:42.596 --> 0:17:45.676 was an allegation that SBF paid a bribe to free 0:17:45.716 --> 0:17:48.676 up money right in a foreign country, and that was 0:17:48.796 --> 0:17:50.876 not made a part of this trial. In terms of 0:17:50.876 --> 0:17:54.676 the criminal conduct, you know, arguing against there being another 0:17:54.716 --> 0:17:59.036 trial he's facing. You know, if he got the maximum sentence, 0:17:59.236 --> 0:18:02.476 it's functionally a life sentence probably right, he's thirty years old. 0:18:03.076 --> 0:18:05.116 I don't think the ultimate sentence is going to be 0:18:05.516 --> 0:18:11.076 changed by this Judge Kaplan can consider the conduct at 0:18:11.076 --> 0:18:13.956 the first sentencing, So just Kapain could say, I am 0:18:13.956 --> 0:18:16.476 making a finding as a judge by a preponderance of 0:18:16.476 --> 0:18:18.556 an evidence that you did do these other things, and 0:18:18.596 --> 0:18:21.676 I'm considering that when I sentence you. So in that sense, 0:18:21.716 --> 0:18:24.596 there's really no reason to have another trial. I think 0:18:24.636 --> 0:18:29.276 the problem for the Ustorney's office is they brought those charges. 0:18:30.836 --> 0:18:33.876 They said it was important to bring those charges. They 0:18:33.876 --> 0:18:35.836 didn't drop them. They said they weren't going to have 0:18:35.836 --> 0:18:38.516 a second trial. It's a little hard for them to 0:18:38.596 --> 0:18:43.676 drop them now and just say never mind. And he's 0:18:43.676 --> 0:18:45.876 not gonna But there's only two ways to resolve them. 0:18:46.076 --> 0:18:49.316 Three there's a trial, he pleads guilty, or they say 0:18:49.356 --> 0:18:52.276 forget it. And he's not gonna plead guilty because he 0:18:52.356 --> 0:18:55.876 wants to appeal presumably this conviction. There's not much point 0:18:55.916 --> 0:18:57.476 in appealing it if you're going to jail for something 0:18:57.516 --> 0:19:00.276 else anyway. So I think they're a little bit stuck 0:19:00.876 --> 0:19:04.516 in terms of how to move forward. I'm optimistic they'll 0:19:04.516 --> 0:19:07.916 find a way to resolve it in some way and 0:19:07.996 --> 0:19:10.796 not to waste the time and effort, But I it 0:19:10.836 --> 0:19:11.676 could go either way. 0:19:12.316 --> 0:19:15.076 So after all of these proceedings are over, Sam makemanfreed 0:19:15.116 --> 0:19:17.876 will go to prison. How is it determined what prison 0:19:17.916 --> 0:19:18.436 he goes to. 0:19:19.236 --> 0:19:21.276 So I am definitely not an expert on this, I 0:19:21.316 --> 0:19:24.516 should say it's not something for the most part prosecutors 0:19:24.556 --> 0:19:29.476 are involved in. There is a designation process that's run 0:19:29.516 --> 0:19:32.196 by the Bureau of Prisons and one of the things 0:19:32.196 --> 0:19:34.876 that feeds into that is that PSRI I was talking about. 0:19:34.916 --> 0:19:39.636 So information from that will affect the designation. There's an assessment. 0:19:40.156 --> 0:19:41.756 Some of that, you know, is going to be stuff 0:19:41.756 --> 0:19:43.916 that's probably not applicable. Here are you in a gang, 0:19:44.396 --> 0:19:46.636 do you have a violent criminal history? Have you had 0:19:47.156 --> 0:19:50.236 infractions while waiting to be designated? You know, did you 0:19:50.796 --> 0:19:52.916 do they find a weapon in your cell? And that 0:19:53.036 --> 0:19:56.796 kind of thing. Some has to do with what your 0:19:56.916 --> 0:20:00.076 needs are. So for example, you know, if you had 0:20:00.076 --> 0:20:02.156 a very serious medical issue and you were going to 0:20:02.156 --> 0:20:05.116 need chemotherapy in prison, that would limit where you could go. 0:20:05.156 --> 0:20:07.716 There's not that many facilities that provide that. If you 0:20:07.796 --> 0:20:10.516 need drug treatment, right, that's going to factor in. So 0:20:10.516 --> 0:20:13.956 there are all these kind of components to it. And 0:20:13.996 --> 0:20:17.876 then there's geography. So you'll see at sentencing almost always 0:20:18.516 --> 0:20:20.276 that defense counsel will say at the end of the 0:20:20.356 --> 0:20:23.676 judge you know, will you recommend to the Bureau of 0:20:23.716 --> 0:20:28.316 Prisons that he'd be designated close to this city or 0:20:28.356 --> 0:20:31.836 to this particular facility, and the judge cannot. It's up 0:20:31.836 --> 0:20:33.356 to the Bureau of Prisons at the end of the day, 0:20:33.796 --> 0:20:37.396 but BOP considers that recommendation, and judges by and large 0:20:37.516 --> 0:20:40.916 make the recommendation, and then the Buer of Prisons will decide. 0:20:41.476 --> 0:20:44.276 And then because he's already in custody, he will then 0:20:44.316 --> 0:20:47.596 be transferred from where he's being held now at MDC 0:20:47.836 --> 0:20:50.516 in Brooklyn to that more permanent facility. 0:20:51.996 --> 0:21:01.956 Judging Sam will be right back. Welcome back to Judging Sam. 0:21:02.396 --> 0:21:04.036 The trial of Sam Bankman Freed. 0:21:05.196 --> 0:21:07.956 Michael, I'm wondering if you've spoken to any family members 0:21:07.996 --> 0:21:11.636 of Sam Bankman freed, or maybe employees at FTX. You know, 0:21:11.636 --> 0:21:14.156 it's been a couple of days since the verdict came out, 0:21:14.156 --> 0:21:16.876 and I'm curious what people close to him and around him, 0:21:16.916 --> 0:21:18.036 how they are feeling about it. 0:21:18.716 --> 0:21:25.316 So very oddly, apart from Caroline, Nishad and Gary, I 0:21:25.356 --> 0:21:28.556 stayed in touch with all of these people, all the 0:21:28.556 --> 0:21:30.436 people who might have been witnesses, some of the people 0:21:30.436 --> 0:21:33.916 who were witnesses, and I've heard from a bunch of them, 0:21:34.036 --> 0:21:37.756 the FTX people. And it's interesting because in the list 0:21:37.836 --> 0:21:41.236