On the first day of Sam Bankman-Fried’s criminal trial in New York, before prospective jurors filed into his courtroom, Judge Lewis Kaplan took a moment to remind the defendant of one of his key rights. “Mr. Bankman-Fried, I want to make sure this is something that you understand,” Kaplan told him. “You are entitled to have your counsel’s best advice on whether they think it is wise or potentially advantageous or not advantageous for you to testify, but they can’t make a decision for you. It is your call. And you could decide to testify against their advice or not to testify against their advice.” Even before Kaplan’s spiel, the question of whether SBF will take the stand has hung over this trial from the beginning. It looms even larger now that we’re roughly halfway through the proceedings, and the defense’s strategy appears more ad hoc and scattershot than ever.
Now, Bankman-Fried’s lawyers have filed a letter that puts the prospect of his testimony in a strange light. Bankman-Fried takes Adderall, and his lawyers wrote over the weekend that he has not been getting his prescribed dose from the New York Bureau of Prisons since his incarceration on August 11. (Bankman-Fried does receive two doses, the first one between 4 and 6 a.m. But the defense argues that this initial dose “wears off by the time trial starts at 9:30 a.m.”) The lack of medication has made Bankman-Fried unfocused, they claim — and, though this goes unspoken, perhaps unable to comport himself. The key sentence from their note: “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 has not been able to concentrate at the level he ordinarily would and that he will not be able to meaningfully participate in the presentation of the defense case.”
The first thing this letter tells us is that the question of SBF taking the stand — which, if it happened, would be a blockbuster moment — is still up in the air. It’s possible that the defense has already made a decision on this question, but given how shambolic they’ve been so far, it wouldn’t really be a surprise if they’re still trying to figure it out. (Not that their client is easy to work with; SBF also cycled through lawyers in the weeks after the collapse of FTX because he wouldn’t stop talking.)
The other point to consider is that this could — could — be part of an actual legal strategy. I spoke with Kevin J. O’Brien, a white-collar defense attorney at Ford O’Brien, who said that the Adderall issue could be part of an argument on appeal — namely that Bankman-Fried’s Sixth Amendment right to participate in his own defense was violated. “He’s a guy who has trouble controlling himself on top of everything else,” O’Brien told me, in regards to SBF’s need for the medication. “It’s probably not a winner, in terms of lacking the capacity to meaningfully participate in his own defense under the Sixth Amendment, but it’s something his lawyers should genuinely press with the court,” he said.
I’m no pharmacologist, but I do generally think that people in prison should be able to take their medicine — even if it was prescribed by this guy — and I’m probably not alone. And the defense could point to a pattern of negligence on this issue. After Bankman-Fried was first remanded to the Metropolitan Detention Center in Brooklyn, Judge Kaplan had to send a letter requiring the Bureau of Prisons to give him ten milligrams of Adderall three or four times a day (as well as a patch to treat depression, though this isn’t in contention), since he was apparently not receiving his medication. The defense is now putting the blame on the medication snafu squarely on the BOP, saying that they’ve made five attempts since October 5 to get someone at the department to up Bankman-Fried’s dose. A spokesman for the Prisons Bureau wouldn’t directly address Bankman-Fried’s situation, but said that all adults in custody “have access to appropriate health care and medicine, including Adderall when clinically indicated.”
Regardless of whether the Adderall request is strategic, things are not going well for Bankman-Fried. Multiple former FTX bigwigs have laid out highly damaging claims with little effective pushback. Last week, Bankman-Fried’s attorney, Mark Cohen, previewed a line of attack against star witness Caroline Ellison — who was the CEO of SBF’s hedge fund, Alameda Research — but she left the witness stand largely unscathed by his questioning, after having provided devastating testimony for the prosecution. Even Ellison’s cooperation agreement, which theoretically incentivizes her to pin everything on SBF, was hardly scrutinized. (I asked O’Brien if pointing out this possible conflict of interest works well for defense attorneys. “It’s a good question. Probably not a lot,” he said.) So Sam Bankman-Fried’s options are dwindling. Maybe a Sixth Amendment Hail Mary is the best his defense has right now. Or maybe Bankman-Fried just needs his Adderall to deliver a knockout performance on the stand that will change the course of this trial. But at this point, any effective defense is looking illusory.
