Tuesday Is Probably Sam Bankman-Fried’s Last Legal Hail Mary

Any sufficiently well-heeled person, when sentenced to 25 years in prison, is probably going to mine the appeals process for possible maneuvers resulting in freedom until all their options are exhausted. For FTX founder Sam Bankman-Fried, the celebrity cryptocurrency mogul convicted of defrauding his customers, it looks like the last plausible card in this game will be turned over on Tuesday, Nov. 4.

As the hearing draws near, Bankman-Fried’s mom is trying other avenues, including publishing her own 64-page PR document, but where appeals are concerned, Tuesday’s proceedings are probably his legal endgame.

A panel of judges for the Second Circuit Court of Appeals in the Southern District of New York will hear Bankman-Fried’s new lead attorney Alexandra Shapiro—referred to as “the last-chance counsel for wealthy clients” by Bloomberg—argue that his 2023 trial was unfair and he deserves a new one. Bankman-Fried’s side seems to have some legitimately eyebrow-raising points to make, and they’ll have to say them inside of ten minutes. The prosecution will also get ten minutes.

To refresh your memory, Bankman-Fried’s conviction was on seven counts related to fraud and conspiracy. Customers, the jury found, were depositing money into FTX under the assumption that it would stay there as an investment, but Bankman-Fried would then siphon it away and spend it on himself, donate it to politicians, or give it to his hedge fund Alameda Research. These allegations came to light when FTX crashed in 2022, one of the events that kicked off crypto winter.

Bankman-Fried’s shiny new lawyers are claiming that the judge in the trial that convicted him, Lewis Kaplan, showed clear signs of bias, and prejudiced the jury. Their filing in September that led to this hearing says Bankman-Fried was “never presumed innocent,” and that the jury was fed a “misleading narrative” that FTX was insolvent when it actually wasn’t.

If you were keeping up with the trial, you might be intrigued to see what the defense is dredging up, because some of what Kaplan did was genuinely weird. Before Bankman-Fried was allowed to testify at trial, for instance, he was subjected to a rare “dry run” in which the prosecution cross-examined him without the jury present. Part of his defense involved the advice of an FTX lawyer. Much of Bankman-Fried’s appeal has centered on this dry run and its result: Kaplan’s ruling that such an “advice of council” defense was inadmissible, which they say prejudiced the jury.

This feels like the end of the road for Bankman-Fried’s appeals. Anyone willing to keep trying—or to pay lawyers to keep trying for them—can always do more legal busywork in pursuit of a favorable decision, all the way up to the Supreme Court if they want. But the defense may not get another chance to argue this case in front of an actual judge again. And as Steve Yelderman, lawyer for the crypto firm Etherealize told CoinDesk, “This is a very routine hearing, and I kind of don’t expect much from this.”

If this Hail Mary doesn’t go Bankman-Fried’s way, and the panel’s decision (which we shouldn’t expect on Tuesday) upholds his conviction, that’s probably the point at which he starts thinking of his sentence as permanent. But hey, Binance’s Changpeng Zhao finagled a presidential pardon for himself. If he keeps sucking up to Donald Trump, like he has been doing, maybe Bankman-Fried can get a crypto pardon too.