He was also living off bread and peanut butter in one of the worst jails in the country with limited access to the internet, discovery material and his ADHD meds [ . . .]
I’d note that Judge Kaplan invited the defense to seek a delay in the trial date if it felt that SBF being remanded to jail prejudiced their ability to put on a defense. They did not do so (likely in an attempt to create a longshot appellate issue, in my opinion). He also had access to a lot of discovery material for many months before being remanded.
There’s also a bit of tension between SBF’s claim that he didn’t have access to information needed to prepare his defense, and that the government dumped too much information on his defense team (at least 7.7 million pages, if I read correctly). Now, I don’t know what was in the Brady material, but I’d want specifics before concluding that important information was unavailable to the defense.
That’s interesting. Do you know when that invitation was (I can’t find it)? If it was close to the trial date, fair enough. If it was at the point of being remanded, it looks like he ended up experiencing a lot of problems that weren’t particularly foreseeable.
I can fact check if you’re curious, but just going by memory for now:
In SBF’s “practice” testimony that the judge requested, someone made a comment about how very convenient it was that he wasn’t able to produce the document retention policy that he kept referring to in an effort to defend himself. He replied that he’d requested it from FTX many times.
There was at least one complaint in the run up to the trial that a huge amount of discovery material had been made available to the defense at such a late date, and SBF was having so many problems with Internet access, that this should hardly count as an opportunity to review the information.
There’s also a huge difference between “information the prosecution wants to use against the defendant” and “information the defendant wants to use to defend himself”. I think the basic situation was that SBF didn’t have a realistic opportunity to look at the former before the trial and that he never had access to the latter (except for information that was inextricably part of evidence that prosecutors had judged served their own ends more than SBF’s overall.) I don’t think there’s a tension between millions of pages being used against you and having minimal access to data that might exonerate you.
And when the defendant began complaining that his recent incarceration made trial preparation by that date more difficult for him, the Court offered to consider any request by the defendant for a substantial adjournment of the trial to give him more time in which to prepare. Tr., Aug. 30, 2023 [Dkt 249], at 20:9-21 :25. Yet defendant conspicuously failed to request any additional time.
(Docket order of Sept 12, 2024, citing transcript of August 30). He was remanded on August 11, so it was pretty soon after that. Moreover, any competent defense attorney would know that they could seek a trial delay on this basis; they did not have to wait for Judge Kaplan to broach the possibility himself.
The district court addressed the late production argument in the same order:
Moreover, the recently produced documents are text searchable indexed productions, the majority of which came from the defendant’s own Google accounts and therefore were accessible to the defendant long before the government received those ve1y same materials in a late production from Google. [ . . . .] Third, the premise of defendant’s position here is that he personally is entitled to review and consider every single piece of the discovery in this case, to generate unspecified work product in respect thereof, and so on. But the premise is incorrect. Defendant is represented by a substantial team of extremely able retained lawyers. He proposes to call at trial seven expert witnesses. And no represented defendant, much less a defendant detained pretrial in order to protect the public, has a constitutional or other right to inspect eve1y bit of discove1y. [. . . . .] Finally, as the Court suggested in remarks on August 30, 2023 (Tr., Aug. 30, 2023 [Dkt 249], at 20:20-21: 1), and as remains true today, the defendant has not made any detailed showing as to specific materials that he claims he has been unable to access personally and the reasons why any such personal inability actually would impede his defense. Generalities about millions of pages without connecting those dots simply is not persuasive. Defendant’s team of lawyers is able to provide defendant with any materials that he would like to review on hard drives at the MDC.
(typos in docket text).
“[I]nformation the prosecution wants to use against the defendant” isn’t an accurate characterization of the government’s Brady obligations—see the Wikipedia article linked earlier. “[P]art of evidence that prosecutors had judged served their own ends more than SBF’s overall” is pretty much the polar opposite of what Brady requires. And I think it is rather unlikely that USAO/SDNY would play games with Brady and thereby risk what they saw as a slam-dunk conviction, especially where the defendant was represented by well-bankrolled counsel and had at least some inside knowledge of what documents might be out there.
Also, none of this seems tied to the specific perjury findings the Government asked the district court to consider—that “Bankman-Fried falsely testified that he did not know about Alameda spending customer deposits, that he did not know until late 2022 that FTX’s code features were being improperly used to take customer money, and that he thought in November 2022 that his tweets were accurate and not misleading.” (p. 31-32 here).
Finally, as to evasiveness / hair splitting / dodging more generally, I’d note that Judge Kaplan has been on the bench for thirty years and has plenty of exposure to defendants who have been remanded, witnesses and defendants who may have conditions that affect their ability to give testimony, and those in extremely complex cases with voluminous discovery. I see no reason to believe he was incapable of factoring those things in to the extent relevant, or unwilling to do so, and trust his findings of fact more than SBF’s self-serving narrative unless given a good reason to depart from that.
Thank you—I misread you, I apologize, I thought you’d said the judge offered a trial delay. (Although it’s still somewhat interesting that Judge Kaplan reminded the defense that they could submit a request for a delay and he would consider it.)
Clearly the Court did not find this persuasive, but I still want to share some sense of the difficulties SBF was facing: at “the latest opportunity the defense had to observe whether the plan for access to the internet-enabled laptop would work as promised,” due to a number of factors, SBF “spent an entire day getting access to a single document. That is one day he could not spend working at the MDC or conferring with his lawyers.” (from here). Perhaps Bradyonly requires that access is given to SBF’s lawyers (who were not all “well-bankrolled” by the way—Mills at least worked pro bono), but I still think these kind of things are worth mentioning in discussions of the extent to which SBF’s testimony was evasiveness vs. genuinely not recalling.
Also, even if “the recently produced documents” were mostly “from the defendant’s own Google accounts,” he had at least 2.5 million pages in his Google accounts, so whether they were technically “accessible” is not really the point. (Assuming he did have access—SBF reported that FTX cut off his access to his personal LinkedIn account, for example.)
But I do think I veered into talking about how FTX would only provide data to the prosecution not the defense, when my original comment that started this thread was just the words “discovery material”, which may have confused things.
I see no reason to believe he was incapable of factoring those things in to the extent relevant, or unwilling to do so
I think Judge Kaplan’s apparent dislike of SBF has been widely reported and I assume we’ll have to agree to disagree on whether that biased any of his judgments in this case.
I think Judge Kaplan’s apparent dislike of SBF has been widely reported and I assume we’ll have to agree to disagree on whether that biased any of his judgments in this case.
Yeah, we’ll have to agree to disagree on that.
I don’t have videotape of Judge Kaplan, of course, but some behavior that may come across as “apparent dislike” could actually reflect sound courtroom management techniques. For instance, sternly lecturing an defendant who does things like use a VPN while on tight electronic lockdown is a restrained use of the district court’s power, authority, and responsibility to manage the proceedings before it. It can be an attempt to prod an errant defendant back in line without bringing out the heavier-handed powers (although Judge Kaplan did end up remanding SBF after the second tampering episode, on which he was affirmed by the Second Circuit).
I’d note that Judge Kaplan invited the defense to seek a delay in the trial date if it felt that SBF being remanded to jail prejudiced their ability to put on a defense. They did not do so (likely in an attempt to create a longshot appellate issue, in my opinion). He also had access to a lot of discovery material for many months before being remanded.
There’s also a bit of tension between SBF’s claim that he didn’t have access to information needed to prepare his defense, and that the government dumped too much information on his defense team (at least 7.7 million pages, if I read correctly). Now, I don’t know what was in the Brady material, but I’d want specifics before concluding that important information was unavailable to the defense.
That’s interesting. Do you know when that invitation was (I can’t find it)? If it was close to the trial date, fair enough. If it was at the point of being remanded, it looks like he ended up experiencing a lot of problems that weren’t particularly foreseeable.
I can fact check if you’re curious, but just going by memory for now:
In SBF’s “practice” testimony that the judge requested, someone made a comment about how very convenient it was that he wasn’t able to produce the document retention policy that he kept referring to in an effort to defend himself. He replied that he’d requested it from FTX many times.
There was at least one complaint in the run up to the trial that a huge amount of discovery material had been made available to the defense at such a late date, and SBF was having so many problems with Internet access, that this should hardly count as an opportunity to review the information.
There’s also a huge difference between “information the prosecution wants to use against the defendant” and “information the defendant wants to use to defend himself”. I think the basic situation was that SBF didn’t have a realistic opportunity to look at the former before the trial and that he never had access to the latter (except for information that was inextricably part of evidence that prosecutors had judged served their own ends more than SBF’s overall.) I don’t think there’s a tension between millions of pages being used against you and having minimal access to data that might exonerate you.
(Docket order of Sept 12, 2024, citing transcript of August 30). He was remanded on August 11, so it was pretty soon after that. Moreover, any competent defense attorney would know that they could seek a trial delay on this basis; they did not have to wait for Judge Kaplan to broach the possibility himself.
The district court addressed the late production argument in the same order:
(typos in docket text).
“[I]nformation the prosecution wants to use against the defendant” isn’t an accurate characterization of the government’s Brady obligations—see the Wikipedia article linked earlier. “[P]art of evidence that prosecutors had judged served their own ends more than SBF’s overall” is pretty much the polar opposite of what Brady requires. And I think it is rather unlikely that USAO/SDNY would play games with Brady and thereby risk what they saw as a slam-dunk conviction, especially where the defendant was represented by well-bankrolled counsel and had at least some inside knowledge of what documents might be out there.
Also, none of this seems tied to the specific perjury findings the Government asked the district court to consider—that “Bankman-Fried falsely testified that he did not know about Alameda spending customer deposits, that he did not know until late 2022 that FTX’s code features were being improperly used to take customer money, and that he thought in November 2022 that his tweets were accurate and not misleading.” (p. 31-32 here).
Finally, as to evasiveness / hair splitting / dodging more generally, I’d note that Judge Kaplan has been on the bench for thirty years and has plenty of exposure to defendants who have been remanded, witnesses and defendants who may have conditions that affect their ability to give testimony, and those in extremely complex cases with voluminous discovery. I see no reason to believe he was incapable of factoring those things in to the extent relevant, or unwilling to do so, and trust his findings of fact more than SBF’s self-serving narrative unless given a good reason to depart from that.
From a media report:
Thank you—I misread you, I apologize, I thought you’d said the judge offered a trial delay. (Although it’s still somewhat interesting that Judge Kaplan reminded the defense that they could submit a request for a delay and he would consider it.)
Clearly the Court did not find this persuasive, but I still want to share some sense of the difficulties SBF was facing: at “the latest opportunity the defense had to observe whether the plan for access to the internet-enabled laptop would work as promised,” due to a number of factors, SBF “spent an entire day getting access to a single document. That is one day he could not spend working at the MDC or conferring with his lawyers.” (from here). Perhaps Brady only requires that access is given to SBF’s lawyers (who were not all “well-bankrolled” by the way—Mills at least worked pro bono), but I still think these kind of things are worth mentioning in discussions of the extent to which SBF’s testimony was evasiveness vs. genuinely not recalling.
Also, even if “the recently produced documents” were mostly “from the defendant’s own Google accounts,” he had at least 2.5 million pages in his Google accounts, so whether they were technically “accessible” is not really the point. (Assuming he did have access—SBF reported that FTX cut off his access to his personal LinkedIn account, for example.)
But I do think I veered into talking about how FTX would only provide data to the prosecution not the defense, when my original comment that started this thread was just the words “discovery material”, which may have confused things.
I think Judge Kaplan’s apparent dislike of SBF has been widely reported and I assume we’ll have to agree to disagree on whether that biased any of his judgments in this case.
Yeah, we’ll have to agree to disagree on that.
I don’t have videotape of Judge Kaplan, of course, but some behavior that may come across as “apparent dislike” could actually reflect sound courtroom management techniques. For instance, sternly lecturing an defendant who does things like use a VPN while on tight electronic lockdown is a restrained use of the district court’s power, authority, and responsibility to manage the proceedings before it. It can be an attempt to prod an errant defendant back in line without bringing out the heavier-handed powers (although Judge Kaplan did end up remanding SBF after the second tampering episode, on which he was affirmed by the Second Circuit).