“It’s obviously a PR campaign,” says Joshua Naftalis, a former prosecutor and currently a partner at Pallas Partners. “This is a strategy that cannot be left unchanged.”
So far, Bankman-Fried has not formally applied for a pardon, a White House spokesperson tells WIRED. “We do not discuss speculation on sensitive issues such as pardons on the record,” the spokesman says.
The Bankman-Fried appellate case hinges on law that the jury was “only allowed to see half the picture” because of Judge Lewis Kaplan’s rulings that prevented the defense from presenting evidence that would supposedly support disprove the prosecution’s case.
“Each time, the judge placed his thumb on the scale,” attorney Bankman-Fried wrote in a statement appeal brief in January. “The result was a one-sided trial in which the district court allowed the government to present blatantly false information, withheld conflicting information from the jury, erroneously instructed the jury on the law, and successfully returned a guilty verdict.”
On November 4, one of Bankman-Fried’s lawyers, Alexandra Shapiro – who also handles appellate cases Sean “Diddy” Combs and entrepreneur Charlie Javice—presented these arguments to a panel of judges of the Second Circuit Court of Appeals. Judges apparently he seemed skeptical of the notion that Bankman-Fried did not receive a fair trial. “You seem to be spending more ink on Judge Kaplan than on the substance,” one of them told Shapiro.
“I’m sure they didn’t take lightly the prospect of criticizing Kaplan’s exercise of discretion,” says Daniel Richman, a law professor at Columbia University who previously served as a federal prosecutor. “But I think they made a professional judgment that this was one of the few paths worth pursuing.”
Both Naftalis and Richman caution against trying to prejudge the outcome of the appeal based on judges’ comments during oral arguments. However, the chances of success in a criminal appeal are generally low – somewhere five to ten percent. Bankman-Fried’s specific arguments regarding the issue of judicial discretion are particularly tough.