After a few hours of unproductive cross-examination, Sam Bankman-Fried’s defense team took a different approach: see if the judge will throw them a bone.
In a motion filed during Thursday’s lunch break, where the court recessed for just over an hour, lead defense attorneys Mark Cohen and Christian Everdell asked senior judge Lewis Kaplan for permission to probe the government’s witnesses a little further.
“The defense should not be precluded from ‘fleshing out’ its theories through cross-examination,” Cohen and Everdell wrote in their lunchtime letter to Kaplan, adding that their prior attempts have been met with objections from the government.
Bankman-Fried’s team hopes Kaplan will help them get a head start on proving their case by allowing questions during the cross-examination that rebut the government’s theory and instead support its own.
“A key element of the defense is that no theft occurred,” the defense wrote in the motion, adding that the prosecution has the burden to prove Bankman-Fried stole FTX customer funds.
The defense’s motion also asks that only the prosecution’s expert witnesses — the government has two: a professor and Ph.D. — be allowed to submit testimony for fact. Other lay witnesses, like former customers and employees, should only be permitted to speak on their personal experiences.
The language of the motion should not have come as a surprise to the judge, who had just hours earlier refereed a dispute between Cohen and lead prosecutor Danielle Sassoon over the same issue.
Moments into his cross-examination of government star witness Caroline Ellison, Alameda’s former CEO, Cohen pushed her on what exactly Bankman-Fried had shared about problems Alameda faced in its early days. Sassoon objected to the line of questioning, arguing it had no relevance and was based on hearsay.
“Your Honor, we are not limited to the government’s theory of the case,” Cohen said during the first of several sidebar discussions Thursday. “We are allowed to put on a defense.”
When Cohen added that he had never had a judge direct him to limit his cross examinations to only what the prosecution had brought up during the direct line of questioning, Kaplan let his growing frustration show.
“I can’t think of that actually occurring in this case,” the judge told Cohen.
When the defense attorney backed down, saying he “withdrew” his remark, Kaplan continued with his admonitions.
“And properly so,” he replied to Cohen.
The prosecution is expected to issue its response to the defense’s Thursday motion on Friday morning. The government had originally told Kaplan that they could probably get it in before midnight on Thursday, but Kaplan shut this down.
“I’m not going to read it after 8:00[pm],” he said moments before dismissing counsel.
Bankman-Fried’s criminal trial continues in Manhattan Friday morning with Zac Prince, founder of now-bankrupt crypto lender BlockFi, taking the stand.
