Justice... Denied

Autism is not an excuse, but an explanation for those who will listen. 

The rise and fall of FTX has been massively documented and the odd behavior of its founder, Sam Bankman-Fried, frequently mentioned in reporting during Sam's tenure as CEO of FTX and during his trial.

But never was his increasingly apparent autism identified, or even considered, as an explanation for his actions.

The people around him during FTX's ascension in the crypto world were unquestionably smart, and many of those closest to him were themselves quirky. So it is inarguable that key employees and others on the outside feeding off FTX's success recognized Sam's autism -- and exploited it.

The fall of FTX should never have happened, could have been headed off by some in positions to act, and was generated and stoked by identifable individuals who stood to profit by its destruction.

Since the 2022 collapse, more than $1 billion in fees has been distributed to lawyers, courts, trustees, and liquidation managers. [City Journal/Richard Dewey, Aaron Brown]. Yet it's entirely possible that when the dust has settled, overall losses will be... zero.

"There was nothing predatory or rapacious or venal or mercenary or exploitive about his conduct, because Sam Bankman-Fried doesn't make decisions with malice in his heart, he makes decisions with math in his head." [Sam's attorney at sentencing.]

Sam was arrested the day before he was to appear before Congress where he previously had advocated for regulation of the cryptocurrency business.

History yet to be written will prove these assertions, and also will illustrate how Sam had no criminal intent in any of his activities while running FTX.

And he was a very vulnerable target when the late-to-the-party Justice Department turned its sleepy eyes toward him.

Then, things started moving really, really fast. 

"We are not just talking about a swift arrest. This is more like the prosecutorial equivalent of breaking the sound barrier." [Ankush Khardori in New York magazine.]  

Sam's foot tapping, reluctance to maintain eye contact, perceived aloofness, and long, rambling answers to questions – described by some reporters as “word salad” – were being perceived as disrespect by the judge and the prosecutors. A measure of their anger was reflected in a draconian prison sentence proposal of 100 or more years floated by probation officials prior to sentencing.

Sam's behavior – and the misinterpretation of it – adversely influenced the judge, the direction of prosecution, the outcome of the verdict, and the severity of his sentence.

In the end, Sam got 25 years in a federal prison. An appeal is pending.

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Judge Lewis Kaplan was assigned to the Bankman-Fried trial. Often described in the media as "no nonsense," Kaplan is "no patience" when it comes to any asserted infirmity of a defendant before him. 

That judicial and personal flaw was astonishingly visible in the manner in which he conducted Sam's trial.

Kaplan knew before the trial's start that Sam had been medically diagnosed autistic. And Kaplan's been around long enough to have assimilated at least a prefunctory understanding of autism, and the behavior of people on the spectrum.

And to have developed some level of empathy when encountering someome like Sam in the courtroom.

Instead, Kaplan was angry, accusatory, frustrated, abrupt, and outwardly demonstrative in plain view of the jury. 

In a rare move, a seething Kaplan revoked bail and sent Sam to jail pending trial.

In a criminal trial, due process mandates that a trial judge not show actual bias toward the defendant, according to the American University Law Review, adding that "trial judges are not only required to be fair and impartial, they must also 'satisfy the appearance of justice.' Thus, the trial judge's 'appearance' and behavior in a criminal jury trial must never indicate to the jury that the judge believes the defendant is guilty. Trial judges' verbal and nonverbal behavior has important effects on trial processes and outcomes."

For three weeks into the trial, Kaplan denied Sam's medication for attention deficit disorder (ADD), which intensified Sam's behavior in front of the jury.

Kaplan showed himself to be a serious study of preconceived notion.

He denied defense requests for an expert witness to discuss Sam's condition. 

When Sam testified on his own behalf (an unmitigated disaster) his answers to prosecutors were seen by Kaplan as evidence of evasiveness, deception and belligerence instead of easily recognizable traits of an autistic individual.

And Kaplan let the jury know in real time what he was thinking. He made prejudicial comments in open court about Sam's testimony, often interrupting Sam with comments like, "Get to the point."

Jurors take important cues from the trial judge.

Nikhilesh De, a reporter for CoinDesk who covered the trial, wrote, “Kaplan was all but openly derisive toward the former crypto mogul when Bankman-Fried testified during the trial itself, to the point where I did genuinely wonder how the jury perceived his comments about the defendant on the stand. Eighteen random members of the public, who had little or no familiarity with FTX, crypto, Bankman-Fried or being on a jury, may well have easily taken cues from the most visible legal expert who ran the show. ” 

Justice denied.