“This is obviously a PR campaign,” claims Joshua Naftalis, a former prosecutor, now a partner at the law firm Pallas Partners. “It is a strategy that does not have a stone.”
To date, Bankman-Fried has not submitted a formal pardon application, a White House spokesperson told WIRED. “We do not discuss speculation on sensitive issues, such as pardons, on the record,” says the spokesperson.
Bankman-Fried’s appeal hinges on the claim that the trial jury was “only allowed to see half the picture” because of rulings by the judge, Lewis Kaplan, that prevented the defense from introducing evidence that it said would have helped undermine the prosecution’s case.
“At every turn, the judge put his thumb on the scale,” Bankman-Fried’s lawyer wrote in an appeal brief in January. “The result was a one-sided trial, where the district court allowed the government to present damning false information, withhold conflicting information from the jury, incorrectly instructed the jury on the law, and effectively ordered a guilty verdict.”
On November 4, one of Bankman-Fried’s attorneys, Alexandra Shapiro—who is also handling the appeals of Sean ‘Diddy’ Combs and entrepreneur Charlie Javice—presented the arguments to a panel of judges at the Second Circuit Court of Appeals. The judges apparently appeared skeptical of the idea that Bankman-Fried did not receive a fair trial. “It almost seems like you’re spending more ink on Judge Kaplan than on the merits,” one of them told Shapiro.
“I’m sure they didn’t take lightly the prospect of criticizing Kaplan’s exercise of discretion,” said Daniel Richman, a Columbia University law professor who previously served as a federal prosecutor. “But I think they made the professional judgment that it was one of the few roads that was worth it.”
Both Naftalis and Richman caution against trying to predict the outcome of an appeal based on comments made by judges at oral arguments. However, the chances of a criminal appeal succeeding are generally low – somewhere between five and 10 percent. And Bankman-Fried’s specific arguments, on matters of judicial discretion, are particularly difficult to land.