Sam Bankman-Fried may need a Hail Mary if he wants to win over jurors

Analysis by Allison Morrow, CNN

New York (CNN) — As Sam Bankman-Fried’s fraud trial enters its third week in Manhattan federal court, one of the biggest questions is whether he will take the stand to testify on his own behalf — a Hail Mary that legal experts say may be his best shot at mounting a defense.

On Monday, jurors heard from yet another member of Bankman-Fried’s former inner circle, Nishad Singh, who, like several witnesses before him, testified as part of a plea deal that he committed various financial crimes at Bankman-Fried’s direction.  

Bankman-Fried, 31, has pleaded not guilty to seven federal counts that could land him in prison for the rest of his life if he were to be convicted and given the maximum punishment. 

The one-time crypto mogul is accused of stealing billions of dollars in deposits from customers of his FTX crypto exchange and diverting those funds to buy luxury real estate, make campaign donations and backstop losses at his other firm, a crypto trading house called Alameda Research. 

While defense attorneys wouldn’t typically advise clients in white-collar crime trials to take the stand, the SBF trial may prove (in so many ways) to be an outlier. 

A risky move?

In a case where the prosecution’s evidence has been strong, a defendant taking the stand is a high-risk move that can “absolutely change the dynamic of a trial,” said Jordan Estes, a former federal prosecutor with the US Attorney’s Office who is now a partner at Kramer Levin in New York.

Whether or not to testify is case-dependent, and clients take a big risk in opening themselves up to cross-examination by prosecutors. But if the defense feels it hasn’t fully gotten its side of the story out, having Bankman-Fried take the stand may be one of the their only avenues left, Estes said. 

Of course, Bankman-Fried’s attorneys aren’t commenting publicly about their plans. (If he does testify, we likely won’t know until a moment before it happens.) But given how damning the testimony has been so far — and taking into account Bankman-Fried’s past inability to keep his mouth shut while under investigation — there is at least a decent chance he goes for the Hail Mary. 

The Adderall issue

In the lead-up to deciding whether he should testify, Bankman-Fried’s lawyers are concerned that he cannot “meaningfully participate” in his defense without his full dose of Adderall to treat ADHD and depression. 

The prescription medicine supply has been a recurring headache for the defense. Lead attorney Mark Cohen wrote in a letter to the judge Sunday night that his client “has been doing his best to remain focused during the trial,” despite not receiving his full dose of the medication.

In short: SBF is supposed to get four doses of Adderall each day, but he can only get it from the Metropolitan Detention Center, where he’s being held. So he’s only getting one in the morning before he’s transferred to the courthouse and one in the evening. 

Cohen said the Bureau of Prisons, which oversees the jail, hasn’t responded to multiple emails and voice messages to try to resolve the issue.

“As we approach the defense case and the critical decision of whether Mr. Bankman-Fried will testify, the defense has a growing concern that because of Mr. Bankman-Fried’s lack of access to Adderall he…will not be able to meaningfully participate in the presentation of the defense case,” Cohen wrote.

At minimum, documenting the Adderall issue could help lay the groundwork for any future appeal. Under that scenario, the defense could point to conditions at the jail — limited access to technology, an unsteady supply of prescription medications and, at least initially, a diet of bread, water and peanut butter to accommodate Bankman-Fried’s vegan diet — as an issue that prevented them from mounting a thorough defense. 

After all, it has not been an easy road for Cohen and his co-counsel. While they have not yet presented their case, Bankman-Fried’s lawyers have repeatedly failed to stick the landing when it comes to cross-examining the government’s witnesses. Last week, Cohen’s questioning of Caroline Ellison, prosecutors’ most damning witness so far, was particularly scattershot and prompted near-constant objections from prosecutors that the judge largely sustained.

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