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Speaker 2: Welcome to Judging Sam The Trial of Sam Bankman Freed.
Speaker 2: I'm Michael Lewis. Bankman Freed was worth tens of billions
Speaker 2: of dollars before FTX his cryptocurrency exchange came apart at
Speaker 2: the scenes, and now he's being tried for financial crimes.
Speaker 2: They could send him to prison for the rest of
Speaker 2: his life.
Speaker 3: It's Thursday, October fifth, and in the studio this evening
Speaker 3: we have our reporter Lydia, Jean Cott, and Rebecca Mermelstein,
Speaker 3: who's a partner at the law firm ol Melvanie and Myers.
Speaker 3: I'm Jacob Weisberg, the co founder of Pushkin, standing in
Speaker 3: for Michael Lewis. We're recording this after the third day
Speaker 3: of Sam bankman Fried's trial, and a lot has happened
Speaker 3: in three days. We're through the jury selection, the opening statements,
Speaker 3: and the first witnesses. So LJ, I'm going to turn
Speaker 3: to you first. You've been getting to the courthouse very
Speaker 3: early in the morning and lining up with the other reporters.
Speaker 3: What's the scene there.
Speaker 1: Been, Like, it's actually really fun. You know, reporters were
Speaker 1: all interested in each other, so everyone's kind of chattying
Speaker 1: and asking each other questions. And yeah, we get there
Speaker 1: at six am and the doy is usually open at eight,
Speaker 1: so it's about two hours, so people take turns running
Speaker 1: to get coffee and bagels. One thing that's funny is
Speaker 1: it's a lot of crypto reporters and they kind of
Speaker 1: think that this might be the last big story in crypto,
Speaker 1: so they're kind of covering their own funeral in a way.
Speaker 3: I haven't thought of it that way. That's really interesting.
Speaker 3: So I read the opening statements, which happened on Wednesday,
Speaker 3: right after the jury selection, but I know that's not
Speaker 3: the same as seeing them delivered. How did they sound
Speaker 3: in the courthouse.
Speaker 1: The prosecution was very bombastic, I would say, in the
Speaker 1: way that they delivered their opening statements. Rebecca and your
Speaker 1: Bengo card. In a previous episode, you said that they
Speaker 1: would use the word lies, and they used the word
Speaker 1: lies a lot, and they hit it. They talked about
Speaker 1: how Sam led to FTX customers, he lied to investors,
Speaker 1: he lied to lenders. At some point the prosecutor actually
Speaker 1: pointed at Sam and he said, this man stole billions
Speaker 1: of dollars from thousands of people. So I feel like
Speaker 1: they were trying to use simple sentences, you know, subject verb,
Speaker 1: and they were trying to say, this is not a
Speaker 1: complicated case. This is simple. This man lied and he stole.
Speaker 3: Rebecca, how was the rest of your Bengo card. I
Speaker 3: think there was victims, greed, stole, and then defense would
Speaker 3: use the word complexity a lot. Did that much a matchup?
Speaker 3: Pretty well?
Speaker 4: I did better on the government Bengo card than the
Speaker 4: defense bingo card. Actually, I think on the lies, the victims,
Speaker 4: the greed, I got it. On the defense one, I'm
Speaker 4: not sure I heard as much complexity as I thought
Speaker 4: I was going to.
Speaker 3: I will say just reading it that the prosecution opening
Speaker 3: statement was very strong and vivid, and I lost the
Speaker 3: threat a little bit a few times. Reading the defense statement,
Speaker 3: it was honestly, it read just a little boring.
Speaker 1: Exactly I was actually going to say that, and I
Speaker 1: was like, arguably, you could say maybe confusing, which maybe
Speaker 1: was actually a strategy. And as opposed to the prosecution,
Speaker 1: the defense lawyer he was a lot more seft spoken.
Speaker 1: I think he kind of seemed fatherly. I think I
Speaker 1: read somewhere that it was kind of like he was
Speaker 1: we were children and it was story time. Like I
Speaker 1: did see wonder nodding off, but I think he was
Speaker 1: kind of trying to tell an opposite story. He kept
Speaker 1: saying like Sam is not a villain. I think he
Speaker 1: was saying like, this is not this bombastic, dramatic thing. Actually,
Speaker 1: like let's be mature here. There's nothing really to see.
Speaker 1: This is just a young guy, a math nerd, who
Speaker 1: started this company and it didn't work out.
Speaker 3: Basically.
Speaker 1: The one metaphor that really stood out to me was
Speaker 1: how he talked about a whole lot of startups. You're
Speaker 1: flying a plane as you're building it. That was the
Speaker 1: thing that I pulled out as to what happened here.
Speaker 1: And they were moving too fast and they crashed, But
Speaker 1: no one meant to do anything.
Speaker 3: Bad mistakes, not lies and fraud. Rebecca, what surprised you?
Speaker 3: Were there any obvious mistakes or any wins in the
Speaker 3: opening statements and the first witnesses.
Speaker 4: I think the thing that surprised me the most about
Speaker 4: the defense opening is that he didn't call the cooperators liars.
Speaker 4: And that's interesting because there's a lot of cooperators. I
Speaker 4: had anticipated you'd get a defense opening that called them
Speaker 4: liars and talked about why they were lying. This was
Speaker 4: a little softer than that. Subtly so, I think because
Speaker 4: Defense counsel did say that the cooperators were motivated by
Speaker 4: needing to say what the government wanted to hear, but
Speaker 4: he didn't go that far, to go all the way
Speaker 4: to lies. And he talked about the fact that hindsight
Speaker 4: is twenty twenty, which I think is going to be
Speaker 4: a defense theme here, and that the cooperators were viewing
Speaker 4: statements with that hindsight, that they were interpreting ambiguous statements
Speaker 4: in light of what the government wanted to hear and
Speaker 4: so there's an effort, it seems to me so far
Speaker 4: could change strategies as the trial unfolds to thread a needle,
Speaker 4: which is, you don't have to think these cooperators are
Speaker 4: lying under oath to think they're wrong. They could be mistaken,
Speaker 4: they could be reading too much into things, and it
Speaker 4: gives you a little daylight where you can say, these
Speaker 4: four people may be telling the truth as they believe it,
Speaker 4: but they're wrong. And we'll see whether or not that
Speaker 4: strategy stays true throughout the whole trial.
Speaker 3: So that's a defense strategy. What would you say about
Speaker 3: prosecution strategy so far?
Speaker 4: I think it's pretty as expected. I would say the
Speaker 4: opening had the same structure you always see in government openings,
Speaker 4: what we would call the grab, that kind of early
Speaker 4: and initial description of things, then a narrative about what
Speaker 4: happened here, and ending with a description of how the
Speaker 4: government is going to prove its case, what kind of witnesses,
Speaker 4: what kind of evidence, even the point as I think
Speaker 4: prosecutors would call it that Lydia Jean referred to very
Speaker 4: traditional for a government prosecutor to during the opening point
Speaker 4: with an extended dramatic point at a defendant, look at
Speaker 4: the defendant. It's really a way of signaling to a
Speaker 4: jury that you're going to ask to convict someone and
Speaker 4: send them to jail for a long time, that you
Speaker 4: are asking them to do that hard thing of sitting
Speaker 4: in judgment, and that you yourself are buying into that,
Speaker 4: that you believe it and they should believe it. So
Speaker 4: not surprised by any of that couple little, I would say,
Speaker 4: nuanced points that were made. The government trying to lay
Speaker 4: a foundation to undermine what it predicts the defense might
Speaker 4: be without being defensive. Always hard to know exactly what
Speaker 4: the defense is going to be, so they may or
Speaker 4: may not be getting it right. A couple of examples.
Speaker 4: At what point the government said that FTX was not
Speaker 4: a bank, it was an exchange and so it can't
Speaker 4: borrow or spend customer money. We know from pre trial
Speaker 4: briefing that one argument the defense was trying to make
Speaker 4: is look, your money in your bank account at JP
Speaker 4: Morgan Chase is in fact being used by the bank
Speaker 4: for its own purposes, and that's not illegal. It's totally fine,
Speaker 4: and so it was reasonable for that to be done here.
Speaker 4: I think that reference by the government was an effort
Speaker 4: to make sure that if the defense went there, the
Speaker 4: jury had heard from them first, that's not the same thing.
Speaker 4: That's not what happened here. And you heard that in
Speaker 4: a couple of places, a reference that the government puts
Speaker 4: in there to make sure that if the defense says it,
Speaker 4: the jury doesn't think, well, wait a minute, that's new information.
Speaker 4: You say, oh, yeah, right, I sort of heard something
Speaker 4: about that. So a couple other examples, you heard reference
Speaker 4: to the fact that FTX had a program by which
Speaker 4: customers could lend out their cryptocurrency to other people. I
Speaker 4: think that's that same foundation if there's going to be
Speaker 4: a defense that this was fine, and people lend each
Speaker 4: other things all the time, and he was just borrowing.
Speaker 4: The government preemptively said that program existed, that's not what
Speaker 4: happened here. Another kind of flip of a fact that
Speaker 4: was interesting is the government described Sam Bankman Freed's charitable
Speaker 4: giving as self promotional, that he did it to boost
Speaker 4: his own image as a way to gain access to
Speaker 4: look good. And the same with the story about the
Speaker 4: cover up. They talked about how in advance, in a
Speaker 4: very nefarious and intentional way, the government says he was
Speaker 4: already laying the foundation of his defense, for example, by
Speaker 4: acting like he wasn't in charge of Alameda when he was,
Speaker 4: by backdating contracts, by forcing people to communicate over encrypted
Speaker 4: apps so that communications wouldn't exist anymore, and they specifically
Speaker 4: said that as part of that cover up, he tried
Speaker 4: to point to the terms of service as justifying what
Speaker 4: happened here, and in fact, his lawyer did do that
Speaker 4: in his opening he put up the terms of service
Speaker 4: and said we're going to talk more about this. But
Speaker 4: he was allowed to do it. So not a surprise,
Speaker 4: I think, but certainly an indication of what the government
Speaker 4: thought the defense was going to be.
Speaker 3: We'll be back after the break to talk about the
Speaker 3: witness testimony. We're back, and I want to hear both
Speaker 3: of your thoughts about the witness testimony. We've heard so far.
Speaker 3: The prosecutors have started calling their witnesses. The first was
Speaker 3: a French commodity trader who lost a lot of money
Speaker 3: on FPX. So I guess, LJ. How French was he
Speaker 3: and why not an American victim?
Speaker 1: I would say he seemed quite French, but he does
Speaker 1: live in London now, And you know, people did we
Speaker 1: did wonder why he was the victim that was chosen,
Speaker 1: because he wasn't necessarily the most sympathetic victim. As you know,
Speaker 1: a commodities trader who lives in London. He did lose
Speaker 1: a lot of money on FTX, and he had screenshots
Speaker 1: to show how he put money in the account. He
Speaker 1: showed how his money was there, and he talked about
Speaker 1: how he thought it was safe and how the reason
Speaker 1: he invested in FTX was because he believed that his
Speaker 1: customer deposits would be safe there. But you know, Rebecca,
Speaker 1: in our last conversation, you talked about how a victim
Speaker 1: would be you know, we should expect to hear from victims,
Speaker 1: and you mentioned a grandmother in Topeka, and I just
Speaker 1: kept thinking that this French commodities trader living in London
Speaker 1: is no grandmother in Topeka.
Speaker 4: They of course, will have spoken to many many victims,
Speaker 4: both as part of their own infration gathering and frankly,
Speaker 4: to find one who's going to be a good witness.
Speaker 4: So it's interesting because I think LG is right, not
Speaker 4: the little old lady in Topeka that you might have
Speaker 4: guessed would come forward, but I do think someone like
Speaker 4: this witness satisfies a couple of requirements that the grandmother
Speaker 4: from Topeka maybe doesn't. First of all, you need someone
Speaker 4: or you want someone who's not just going to say
Speaker 4: I invested in FTX and I lost money, so I
Speaker 4: am a victim and there are real victims here. You
Speaker 4: also want someone who's going to be able to say
Speaker 4: I was paying attention. It mattered to me what Sam
Speaker 4: Bankman Freed said. I listened to him, I read the
Speaker 4: documents that were provided before I invested. I followed what
Speaker 4: he said publicly about the safety of my investments. I
Speaker 4: used the app that showed where my assets were and
Speaker 4: what I had. So someone who wasn't as conscientious of
Speaker 4: an investor isn't as good of a witness that purpose,
Speaker 4: because you're not going to be able to show through
Speaker 4: them that these laws matter and that people relied on them.
Speaker 3: LJ the jurors. And you also heard from a college
Speaker 3: friend of Sam Bankman Fried who said he quit when
Speaker 3: he didn't like what was going on there. And from
Speaker 3: Gary Wang, who was described by Michael Lewis in Going
Speaker 3: Infinite is a famously silent chief technology officer. What were
Speaker 3: all those witnesses.
Speaker 1: Like, Yeah, so Adam Adda, who was Sam's friend in
Speaker 1: college who worked at both Alameda and FTX. I thought
Speaker 1: he was a very compelling witness. He was very fourthright,
Speaker 1: he was an engineer. He seemed very precise in everything
Speaker 1: that he said.
Speaker 3: Well, there was this exchange I read about on a
Speaker 3: paddle tennis court. Why were they doing business there? It
Speaker 3: sounds very Bahamas.
Speaker 1: Yeah, So what happened was that Adam became aware that
Speaker 1: Alameda had eight billion dollars worth of fti X customer money,
Speaker 1: and he was worried about Alameda being able to pay
Speaker 1: back that money to FTX customers, because eight billion dollars
Speaker 1: is a lot of money. And he talked about how
Speaker 1: he told Sam he was worried, and he asked Sam
Speaker 1: if it was a problem, and he recounted Sam saying
Speaker 1: to him, quote, we were a bulletproof last year. I'm
Speaker 1: not sure if we're bulletproof this year. And he asked
Speaker 1: Sam how long until we're bulletproof again? And Sam said
Speaker 1: six months to three years. And this was just a
Speaker 1: few months before FTX filed for bankruptcy.
Speaker 3: So that's a damaging bit. And how about this Gary Wang,
Speaker 3: what was he like?
Speaker 1: It was a really huge deal. When he entered the courtroom,
Speaker 1: everyone's been really excited to hear from him, in part
Speaker 1: because he's along with Sam the founder of FTX and Alameda,
Speaker 1: and also he has a reputation for never speaking. Michael
Speaker 1: talked about how he wasn't able to interview him because
Speaker 1: he didn't say anything at all. I read like his
Speaker 1: high school did a story about him, you know, when
Speaker 1: all of this came out and they interviewed his teachers,
Speaker 1: and there just weren't very many people who had really
Speaker 1: remembered or could say that much about him, because he's
Speaker 1: known for being really, really quiet. But it was interesting
Speaker 1: when he took the stand because he actually had a
Speaker 1: lot to say. He spoke really fast. The judge and
Speaker 1: the prosecutor told them to slow down, and the rest
Speaker 1: of Friday is going to be dedicated to his testimony.
Speaker 1: He you know, pled guilty to financial crimes and specifically
Speaker 1: he said, quote, we gave Alameda special privileges to withdraw
Speaker 1: an unlimited amount of funds and lied about it to
Speaker 1: the public. I should say that we can't bring electronics
Speaker 1: in the courtroom, so this is based on my notes,
Speaker 1: but he said something like that, and the prosecution asked
Speaker 1: him at whose direction did he act, and he said SAMs.
Speaker 3: So, Rebecca, the burden of proof, it's, of course on
Speaker 3: the prosecution. Do you think at this point, after day three,
Speaker 3: they're getting what they need from the witnesses to prove
Speaker 3: their case.
Speaker 4: That's a hard question to answer from this distance. I
Speaker 4: would say it sounds like it's going very well for
Speaker 4: the government so far, but really too soon to say
Speaker 4: where it's going. I think it's important to recognize that
Speaker 4: in America generally prosecutors win almost all the time, prosecutors
Speaker 4: in the Southern District of New York, I would guess
Speaker 4: more so even than average. So even if you didn't
Speaker 4: know anything about the case from the get go, the
Speaker 4: odds are always stacked pretty heavily against a defendant, even
Speaker 4: with the presumption of innocence, And the proof here does
Speaker 4: seem like it's going to be very strong.
Speaker 1: Rebecca, I actually have a question for you. Like in court,
Speaker 1: the defense lawyers keep making objections that get overruled, and
Speaker 1: when they're doing cross the prosecution makes a lot of
Speaker 1: objections that are sustained. A lot of times the judge
Speaker 1: has called out the defense lawyers, he's brought them to
Speaker 1: side panels like it feels like the defense is having
Speaker 1: a really hard time and they're always in trouble, And
Speaker 1: is that normal? Is that usually how it feels or
Speaker 1: is that of no?
Speaker 4: I don't know that there's a normal. Different judges have
Speaker 4: different practices about objections. Different judges give more leeway or
Speaker 4: enforce the rules of evidence more strictly, So it really
Speaker 4: is case by case and judge by judge. I do
Speaker 4: think one thing to keep in mind about the optics
Speaker 4: of that whole dynamic, or a few things. The first
Speaker 4: is that the defense has an incentive sometimes to object
Speaker 4: even when they don't actually think they're going to win.
Speaker 4: They already know this judge doesn't agree with them because
Speaker 4: they are preserving the record for appeal. They if Sam
Speaker 4: Bankminfried gets convicted, we'll obviously bring this case to the
Speaker 4: Second Circuit and they'll say the judge made legal mistakes.
Speaker 4: He let things in he shouldn't have, he kept things
Speaker 4: out he shouldn't have, and that prejudiced our case so
Speaker 4: badly that we need to do over. There is no
Speaker 4: appeal from an acquittal for the government. If he's found
Speaker 4: not guilty, then double jeopardy attaches and that's the end
Speaker 4: of the road. So the government doesn't have really any
Speaker 4: interest in preserving its record in that way because it
Speaker 4: doesn't really matter for academic purposes. So that's number one.
Speaker 4: Number two is that I think by and large, defense
Speaker 4: layers try to get away with a little bit more
Speaker 4: in the courtroom than government lawyers do, and so it's
Speaker 4: not uncommon for the defense to always be trying to
Speaker 4: push the envelope sneak something in, and so not necessarily
Speaker 4: that surprising to me that you're going to see more
Speaker 4: objections being sustained on the government's side. I think Judge
Speaker 4: Kaplan is also a little bit government friendly and strict
Speaker 4: about the rules of evidence. So again not that surprising
Speaker 4: to me, but interesting to hear what your perception is,
Speaker 4: because of course juries get told all the time, and
Speaker 4: Judge Kaplan told this jury, my job is to just
Speaker 4: rule on these things. You shouldn't read anything into it.
Speaker 4: I'm not on any side, but of course common sense
Speaker 4: tells you the jurors are paying very close attention to
Speaker 4: what the judge does, and it does affect people's opinions.
Speaker 3: Rebecca, I know this is a ridiculous question. We're three
Speaker 3: days in, but based on what you know so far,
Speaker 3: who's winning.
Speaker 4: Look, I think what you have so far is a
Speaker 4: compelling government presentation, that the defense tried to poke some
Speaker 4: holes in raise some questions, and they're opening that things
Speaker 4: are more complicated than the government has suggested. That there
Speaker 4: are explanations, but so far we haven't heard any of them.
Speaker 4: Part of that is that because there's a burden of proof,
Speaker 4: the government goes first, so they're going to present all
Speaker 4: their evidence. The defense may not present any, of course,
Speaker 4: that they will see what they do. But not surprising
Speaker 4: that the government seems like it's ahead at this stage
Speaker 4: of things. But I do think this is a very
Speaker 4: hard battle for Sam Bankman freed because you have someone
Speaker 4: like the second witness, his friend. That person didn't admit
Speaker 4: to any wrongdoing, He hasn't pled guilty at any crimes.
Speaker 4: He doesn't have the same kind of incentive as cooperators
Speaker 4: maybe do. And what he says is, look, I believed
Speaker 4: in this, and then I found out this really terrible
Speaker 4: thing that Sam Bankman Freed knew, and it was so
Speaker 4: obvious to me that this was a problem I left
Speaker 4: my job. Really raises questions about how Sam Bankman Freed
Speaker 4: can say that he didn't know that, or he didn't
Speaker 4: appreciate it, or wasn't obvious to him. Not good for him,
Speaker 4: I would say, if I had to bet at this
Speaker 4: very early stage, I think I think the government's probably pretty.
Speaker 3: Far out ahead. Rebecca and LJ, thank you both so much.
Speaker 3: We'll be back after the break with one last thing.
Speaker 3: We're back with one last thing, so LJ give us
Speaker 3: some of the color. How weird is it.
Speaker 4: There in the courtroom.
Speaker 1: Yeah, there's a lot of things that are weird. One
Speaker 1: thing that's weird is it's a space where no one
Speaker 1: has any electronics and everyone has notebooks and their writing,
Speaker 1: and it kind of feels like being back in I
Speaker 1: don't know, middle school, pre everyone having a cell phone,
Speaker 1: and you know, we're checking in with each other and
Speaker 1: making sure that we wrote down the right thing. And
Speaker 1: I even saw one journalist who said that they saw
Speaker 1: Sam Megmanfreed's parents taking notes, sharing a legal pad and
Speaker 1: taking notes as things were happening. So everyone's writing furiously
Speaker 1: and no one's checking their phones. So that's one thing
Speaker 1: that's different.
Speaker 3: Why is that whether you're in in the courtroom, I
Speaker 3: understand no cameras in the courtroom. But why can't you
Speaker 3: be recording it or taking notes electronically.
Speaker 1: I have no idea. Just when you go into the
Speaker 1: courtroom you have to give up I guess maybe it's
Speaker 1: just to make sure that no one records sneaks a
Speaker 1: phone in, so when you enter the courthouse you have
Speaker 1: to go through security. And Judge Coplin is famously particularly
Speaker 1: strict about electronics. There's that's kind of something that he's
Speaker 1: known for. He doesn't even have an email address.
Speaker 3: Really yeah, well that's probably yeah, Like.
Speaker 1: He doesn't compline listed on his website. And when I
Speaker 1: asked what the best way is to reach him directly,
Speaker 1: I was told to write a letter.
Speaker 3: Which will which he will answer after the trial's over.
Speaker 3: And you know, Michael Lewis's name keeps coming up. I
Speaker 3: mean in the jury selection they asked of the juris
Speaker 3: had seen it sixty minutes appearance, and you know, it
Speaker 3: feels he's on trial too, in a funny way, or
Speaker 3: he's in the middle of it.
Speaker 1: Yeah, for sure. I've seen three copies of Going Infinite
Speaker 1: in the courtroom and things. You know. Adam Yadida, one
Speaker 1: of the witnesses, was in Michael's book and afterwards, there
Speaker 1: are a report is going through trying to look out
Speaker 1: what Michael said he said versus what was said in
Speaker 1: the testimony. So people have the book, people are reading
Speaker 1: it literally in the courtroom during short breaks.
Speaker 3: The jurors have to have to reach a verdict so
Speaker 3: they can read it.
Speaker 1: Yeah, exactly, and yeah. And then the other thing that's
Speaker 1: weird about the courtroom is, you know, the lawyers sometimes
Speaker 1: talked to the judge and the jurors aren't supposed to
Speaker 1: hear it, and they have these speakers that just this
Speaker 1: white noise comes out of and it's really jarring when
Speaker 1: it first happens, but it's actually pretty effective. I have
Speaker 1: no idea what they're saying in the side panels.
Speaker 3: Well, thank you so much, and judging. Sam will be
Speaker 3: back in your feet on Monday morning with a week
Speaker 3: one recap from Michael Lewis himself.
Speaker 1: All week I've been checking in with Michael Lewis after
Speaker 1: the trial and updating him on what's been going on
Speaker 1: in court. I saw Sam in real life and the
Speaker 1: court artist said that it was much more fun to
Speaker 1: draw his hair before he got his haircuts.
Speaker 2: Drawing is so weird. Doesn't look like him.
Speaker 1: Yeah, I agree, it doesn't. I feel like he has
Speaker 1: like an impish quality that none of the photos capture.
Speaker 2: Yeah, nothing, It's funny. It's a very good point, like
Speaker 2: since then the pictures all make him look like Richard
Speaker 2: the Third, like dark villain.
Speaker 1: On our next episode, Michael and I sit down and
Speaker 1: make sense of this crazy week.
Speaker 2: Lvia Gencott is our court reporter. Katherine Girardeau and Nisha
Speaker 2: Venken produced this show. Sophie Crane is our editor. Our
Speaker 2: music was composed by Matthias Bossi and John Evans of
Speaker 2: stell Wagon's Symphonette. Judging Sam is a production of Pushkin Industries.
Speaker 2: Got a question or comment for me? There's a website
Speaker 2: for that atr podcast dot com. That's atr podcast dot com.
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