The saga of Sam Bankman-Fried’s pre-trial release continues.
The disgraced founder of the crypto exchange FTX has been detained since August at the Metropolitan Detention Center, a notorious facility in Brooklyn where Bankman-Fried’s lawyers argue he does not have sufficient resources to prepare for his defense.
While separate judges have declined several petitions to release Bankman-Fried ahead of his Oct. 3 trial, his lawyers are continuing to push for the defendant’s release, including in a new court filing on Monday.
In the latest attempt, Bankman-Fried’s lawyers argue that they are running out of time with the trial date quickly approaching.
“We are finding it exceedingly difficult as a practical matter to adequately prepare for trial with the restrictions on access currently in place,” they write.
The trial of the decade
Since the collapse of FTX in November, Bankman-Fried’s prospects of maintaining his innocence have dwindled. He was arrested at his Bahamas penthouse in December and soon extradited to the U.S., where he faced a slew of charges, ranging from wire fraud to money laundering, related to the failure of FTX.
As prosecutors continued to add new charges, and members of Bankman-Fried’s inner circle turned against him, Bankman-Fried worked with his lawyers to mount his defense from his parents’ home in Palo Alto, Calif., where he was granted home arrest.
Bankman-Fried’s actions began to endanger that small sliver of freedom, however. Prosecutors described his reaching out to potential witnesses in his upcoming trial as witness tampering, and said his use of a VPN to watch football violated pre-trial agreements. Then, after he leaked a private diary of former Alameda CEO—and his one-time girlfriend—Caroline Ellison to the New York Times, a judge remanded him to the MDC in Brooklyn.
Now, Bankman-Fried’s lawyers have argued that the defendant does not have sufficient access to equipment, as well as his legal team, in detainment—a major hindrance ahead of his trial, which will include thousands of pages of electronic evidence ranging from emails to Slack archives.
Judge Lewis Kaplan, who is overseeing the case in the Southern District of New York, declined their petition to grant him pre-trial release, as did a three-judge panel for the Second Circuit of the U.S. Court of Appeals in mid-September. Both said that Bankman-Fried could continue to ask for pre-trial release.
Discovery challenges
For complex white-collar trials, defendants often take months to prepare with their legal teams due to the magnitude of electronic discovery produced in the cases. Due to its limited hardware capabilities and visitation abilities, facilities like the MDC in Brooklyn present a challenge for defendants, especially for expedited trials like Bankman-Fried’s.
Defense attorneys and public defenders have argued to Fortune that Bankman-Fried’s case represents a longstanding issue with pre-trial detention centers, where inmates do not have access to their lawyers and discovery materials. While prosecutors have worked to improve the conditions, including providing Bankman-Fried access to air-gapped laptops and visits to a courthouse, his lawyers argue it is still not enough.
In Monday’s filing, Bankman-Fried’s lawyers argue that temporary release is necessary due to the magnitude of the government’s case, which they say includes over 50 potential witnesses, thousands of pages of material, and over 1,300 exhibits.
They write that they do not know which witnesses prosecutors will call and what exhibits they plan to reduce, meaning it is necessary that the defense team is able to confer with Bankman-Fried to prepare for the next day’s witnesses and exhibits when they are not in the courtroom.
“We will not be able to do this unless he is temporarily released,” they argue, adding that otherwise, they will only have access to him every morning before the trial begins.
Bankman-Fried’s lawyers asked for his release beginning on Oct. 2 and for the duration of the trial, where he can live in a temporary residence in New York City. He would be accompanied by a private security guard and not have access to any electronic devices, nor would he speak with anyone outside of his defense team, his parents, and his brother.
Prosecutors and Judge Kaplan have yet to respond.
