Sam Bankman-Fried is not having a good time.
Since his arrest at the hands of Bahamian authorities in December, the FTX founder has experienced the highs and lows of U.S. criminal justice. After receiving favorable bond conditions that allowed him to live at his parents’ $3 million home in Palo Alto, a judge revoked his bail in August, sending him to one of the most notorious pre-trial detention centers in the country.
With the trial drawing an uncommon degree of public scrutiny, a prevailing question has lingered: Is Sam Bankman-Fried getting exceptional treatment because of his high-profile stature? Fortune spoke with former prosecutors and defense attorneys who said the answer is complicated, though they hope it will shed light on injustices that pervade the penal system.
“The more access he can get, the easier and better it will be for our other clients,” said Deirdre von Dornum, the attorney-in-charge of the Federal Defenders for the Eastern District of New York. “It’s very hard to give it to him and not to other people.”
The $250 million bond
FTX filed for bankruptcy on Nov. 11, and Bankman-Fried was in handcuffs a month later—with every move from federal prosecutors now under a microscope. The first was the question of bail.
On Dec. 22, a judge released Bankman-Fried on a $250 million bond secured by his parents’ home in California, as well as two sureties, who turned out to be faculty members at Stanford University, where Bankman-Fried’s parents taught. He would be allowed to live at his parents’ home until the trial.
The move drew criticism, especially from the outspoken corner of the internet known as Crypto Twitter, with one prominent securities lawyer declaring that the conditions were “ludicrous” and a “joke.” Indeed, Bankman-Fried’s bail remained in place even as he appeared to violate the agreement on multiple occasions, including contacting potential witnesses and using a VPN to watch football.
Tim Howard, the former chief of the fraud and cybercrime unit at the U.S. Attorney’s Office for the Southern District of New York, told Fortune that the bail conditions seemed normal.
“It’s exceptionally hard to get white-collar defendants detained, and especially folks with no criminal history,” he said.
Bankman-Fried agreed to waive extradition to return to the U.S. from the Bahamas. Howard told Fortune that he never authorized prosecutors whom he supervised in the white-collar unit to seek the detention of a defendant with no criminal history who waived extradition.
Even after Bankman-Fried tested his bail conditions, Howard said prosecutors would be hesitant to push too hard for immediate detention.
“For every violation, if you come out swinging and try to get the defendant detained, you lose credibility not just in that case, but for other cases,” he said, arguing that prosecutors have to maintain their relationships with judges. “I don’t think the government gave particularly favorable treatment to Sam Bankman-Fried.”
Michael Freedman, a defense attorney who’s worked for high-profile defendants including Bill Cosby, said that cases involving violent crimes are treated differently. When deciding on bail conditions, judges are looking at factors including flight risk and danger to the community. In cases involving drugs and violent crime, he said the presumption is in favor of detention, shifting the burden to the defendant to argue why they shouldn’t be detained.
White-collar defendants are also often able to pay for security and provide sufficient environments for home monitoring, highlighting the inequity of bail agreements in different types of criminal cases.
A failure of discovery
In August, Judge Lewis Kaplan finally revoked Bankman-Fried’s bail after prosecutors revealed he had leaked the private diaries of a key witness to a New York Times reporter. Bankman-Fried was remanded to the Metropolitan Detention Center in Brooklyn, a facility notorious for poor living conditions.
Bankman-Fried not only lost his cushy confinement at his parents’ house, but more crucially his unlimited access to lawyers and the millions of pages of electronic discovery material that his defense team was sorting through.
Over the past month, Bankman-Fried’s lawyers have argued that the conditions at the Metropolitan Detention Center hinder his ability to prepare for his defense, with the trial approaching in early October. Kaplan has rejected his requests for pre-trial release, writing, in part that Bankman-Fried’s case was in the capable hands of “a substantial team of extremely able retained lawyers.”
Instead, prosecutors and Bankman-Fried’s defense attorneys have haggled over details to provide him with adequate access to electronic discovery, from an extra laptop and battery to transportation to courthouse facilities.
While the willingness of prosecutors to meet his requests may seem unusual, Howard said it once again stems from the white-collar nature of the case and the fact that the trial will hinge on an exceptional amount of electronic evidence, from email archives to reams of business records.
Defendants have a constitutional right to counsel and to prepare for their defense, meaning prosecutors are compelled under judge orders to ensure adequate access. Howard said prosecutors are also incentivized to have the trial scheduled as soon as possible to ensure that witnesses still have a fresh memory and because of the level of public interest.
“It’s a complex case that the government has an interest in resolving and getting to trial,” he said.
A complicating factor is that judges will often seek to delay trials under circumstances where a defendant does not have adequate access to discovery. Bankman-Fried’s attorneys, however, have declined to request a postponement, instead asking to exclude certain troughs of discovery.
“That might be a cute way of trying to get evidence out,” said Howard. “We want to have the trial date, but we can’t get meaningful access.”
Von Dornum said access to electronic discovery is a pervasive issue in facilities run by the Federal Bureau of Prisons, a law enforcement agency under the Department of Justice.
“SBF is getting a lot more press about it,” she added, “but I think this is a constant struggle for us—for people who have electronic discovery, they really cannot have a speedy trial and also review their own discovery.”
Von Dornum argued that the government could create better conditions by upgrading computers and software made available to inmates or soliciting donations from outside groups like law firms.
“To me, it’s a DOJ problem,” she told Fortune. “The same people producing discovery in very complicated forms in huge quantities are not ensuring that people detained by the DOJ can review those.”
Danya Perry, a trial attorney who represented Michael Avenatti in his extortion trial, said that conditions are still better at MDC than at the Metropolitan Correctional Center, the facility that housed Jeffrey Epstein and Joaquín “El Chapo” Guzmán. Bankman-Fried likely would have been kept there, but the Bureau of Prisons temporarily closed the center in 2021. In the lead-up to his trial, Avenatti was remanded to MCC because of a separate case. He was kept in El Chapo’s former cell, where he had nearly no access to his lawyers or discovery.
“MCC was an actual hellhole,” Perry said. “Any defendant detained prior to trial has a lot of challenges, and it’s certainly more difficult to prepare.”
Von Dornum expressed hope that attention around Bankman-Fried will shed light on the constitutional issues that detained defendants face while preparing for their trials.
“The press should pay more attention generally to people’s Sixth Amendment rights,” she said. “He deserves it the same as everybody else does, and if he can bring our people along, that would be great.”
‘Longstanding battles’
Soon after Bankman-Fried’s detention, his lawyers argued the defendant was not being given adequate nutrition under his vegan diet, instead just receiving bread, water, and occasionally peanut butter. They also petitioned the judge to ensure Bankman-Fried got access to his depression and ADHD medication.
Von Dornum said access to food and medication are persistent issues at MDC. Inmates often follow diets for religious or medical reasons. She told Fortune that public defenders are fighting “longstanding battles” about food access, especially around halal diets, with people often served standard meals and being told to pick and choose what they can eat, which “leaves people with 600-700 calories a day.”
Staffing shortages have exacerbated the problem. Von Dornum said inmates have had more limited access to the commissary, which they often use to supplement prison meals.
Securing access to medicine has also proven difficult, and Von Dornum said defense attorneys often have to petition courts for updates, rather than receiving them from the detention facility. The fact that Bankman-Fried’s lawyers have not filed any requests for medication signals that he has received access, unlike many other inmates in his position. A spokesperson for Bankman-Fried declined to comment.
A Federal Bureau of Prisons spokesperson told Fortune that the department cannot provide information on the conditions for any particular adult in custody but said that inmates at MDC have access to health care, telephones, a law library, and hot meals, as well as essential medical, dental, and mental health services.
Freedman said Bankman-Fried may be better off than other defendants, but not by much.
“It’s like dancing on the head of a pin,” he said. “MDC Brooklyn is a terrible place under any circumstances.”
This post was originally published on this site be sure to check out more of their content.
