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Welcome to Judging Sam The Trial of Sam Bankman Freed. I'm Michael Lewis. Bankman Freed was worth tens of billions of dollars before FTX his cryptocurrency exchange came apart at the seams, and now he's being tried for financial crimes. They could send him to prison for the rest of his life. Lydia Jean Cott host today. Thanks for joining us.
I'm Lyddy jean Cott. The trial of Sam Bankman Freed is officially underway. I arrived at the courthouse for the Southern District of New York at six am Tuesday morning. It's this big, imposing building with revolving golden doors. Reporters though use a side entrance. When I got there, there was already a handful sitting on the ground. Someone even brought a folding chair.
The mood was friendly and excited.
It was kind of like we're all waiting for a flight together and we're friends. I spoke to a few people while waiting for the court doors to open, and why are you here this morning?
Hi? My name is Nick Day. I'm a reporter and editor White coined USK. We are covering the trial of Sam Bankman freed. We broke the original balance sheet last year, ultimately led to the situation FTX found itself in when it filed for bankruptcy in November last year. And so what's your nat?
Josh Blancy will pay you. We both work for The Times of London. I'm interested if they watched Michael Lewis in sixteen minutes, to be honest, because it's guy. I thought it was very interesting when he called his book a letter to the jury, so to interest see if that comes up, they're going to have to spend a lot of time explaining, Okay, here's a what is a cryptocurrency? What does in exchange?
I don't fucking understand how well.
Our goal is to help you understand at least half of it. When we were finally let inside, we waited in another long line to give up our electronics, and then we were ushered into overflow rooms where we could watch the proceedings on monitors. Even though the image was greeny, we could tell Sam had gotten a haircut. His famous curls were definitely more closely cropped. Once court was in session,
the first order of business was selecting a jury. More specifically, their process known as voidir, which is when potential are questioned by a judge before a jury is selected. The legal teams for both the defense and the prosecution had submitted a list of proposed questions, which I was able
to look through before the trial started. The questions ranged from what potential jurors did for a living, to whether they'd be able to vote to convict on this trial, and even if they had seen Michael Lewis's appearance on sixty Minutes this past Sunday. A lot of people seemed like they were trying to get out of participating. One dury said they had a wedding in a few weeks, another was applying for jobs. Others couldn't get the time
off from jobs that they had. Someone else said they were scheduled to go to El Salvador for a Miss Universe pageant. One potential juror said he couldn't serve because he didn't understand crypto, but the judge didn't seem convinced. By the end of the day, there were fifty potential jurors left. On day two, each of them will introduce themselves for one minute so the lawyers can get a feel for who they are. Then twelve jurors and six alternates will be seated, and they will be the people
who will ultimately decide Sam's fate. I wanted to understand more about how lawyers think about jury selection, like what are they looking for? How do they know who might be favorable to their side? Today on the show, a conversation with Ellen Leggett. Ellen's maybe the best person to talk to us about this. She's a trial consultant and she's been helping lawyers select juries and cases for over three decades. Ellen welcome to judging. Sam.
Thank you very much, Old Jay, And I was wondering.
If you could start by explaining what exactly a jury trial consultant does.
Absolutely, as you said, I've been a jury consultant for three decades, which is to say that I've been doing this pretty much since the start of psychologists assisting lawyers in the courtroom. I am a psychologist by training. Not all jury consultants are, but clearly in many situations and having a person in the courtroom to assist the lawyers is not new, even though many people in the country haven't really understood what the role of a jury consultant is.
We do many things that surprisingly don't involve a crystal ball. Many people think we can just walk into a courtroom, sit there and divine things about the jurors, and would that it were that easy. But no divine powers are necessary or brought into the courtroom. In fact, there's a lot of science that is behind usually what we are doing as we look at the jury during that vas der process and the selection process.
And I'm curious that someone who spends a lot of time thinking about the jury, like, how do you think about the jury's role?
Yeah, you know, the jury has a very very hard role. If one and thinks about entering a class in college for something that you never in a million years would want to take. That's how these jurors feel when they're walking into a trial, and usually it's a trial about which they will have very little technical information. So they have a very hard job because the rules really are set up so that they will not be able to
stand too closely to the issues. But they know that they are, besides the judge, the most important people in that courtroom, and they want to do their job well and they want to render a fair verdict. There's nothing worse for a jury than to think the public will believe that they did the wrong thing.
Usually in life, when you're making a big decision, you want to be like reading everything there is to read about it. You want to be talking to the people that you trust. And in Sam mekmund Fried's you Know is looking at the jury instructions and it specifically says, and I think it's always like this, you can't talk to anyone, you can't read anything, like why have we decided that that's the best way for a jury to reach a verdict?
Our forefathers in their wisdom thought that they were doing the right thing to put limits on what jurors could do to gather information. And I don't think they were wrong. I think instructing the jurors to rely upon what they hear in the courtroom as well as their experiences in life, we can't tell them to pack those up in a
suitcase and leave them all at home. But they are given parameters to focus them on the evidence because there are so many legal rules that govern what evidence they can and cannot hear.
How much say the lawyers have over who ends up on the jury.
That's a really good question. The lawyers are ultimately in charge of jury selection. But what is most daunt is the fact that although we talk about it as a jury selection, it truly is jury d selection. There are many rules about who can actually be excused, and that is all that lawyers can do is excuse jurors. And we can talk more about the different rules for excusing jurors, but it's really de selection, not selection.
Yeah, for sure. And is there a limited amount of people you can excuse? Like is it three strikes or three people you can.
Three strikes you're out? Well, there are a couple of ways that jurors can be excused, and some the judge is the ultimate arbiter of and he has the decision to make, and others are at the discretion of the lawyers. First of all, time availability is something that they all care about, and this is a six week trial, so they could be excused by the judge if they really don't get paid for jury duty and make a case that they will have financial hardship. The judge can move
to excuse ors on that basis. Also if there are medical reasons or time other time interferences like being the sole caretaker for an elderly person, but other than time or financial qualifications. The next category is do you have a connection to the case, And you'll see that there are many questions asked by the judge and proposed by the lawyers that aim to find out whether there's a direct connection, because that would create the appearance of bias,
and those people would be excused most likely. And usually the lawyers will propose that they would like to excuse someone for cause, but the judge decides and then, as you pointed out, three strikes, yes, those are freebies. The lawyers can choose to excuse. Usually three jurors each side, but again, under some circumstances, that number may be different, and judges can handle that process very differently.
Interesting if you were working as a jury selection expert in this particular case, Let's say you're working for the prosecution, what would your dreamer look like? Could you describe them?
Well, dream jurors are always going to be neutral jurors that have the ability to see the evidence. Clearly, I have to say that this crystal ball does not enable me to divine what I think an ideal juror would be for each side. We actually focus on who the dangerous jurors would be. For the very reason that I said, we can't go out and choose which ones are the ideal jers. All we can do is de select dangerous jures. So we're looking for, more likely, who are the jurors
that can hurt either side. For Sam Bangman freed as the defendant being accused of fraud in a financial collapse, obviously having victims who have in some way been affected financially, whether it's from the cryptocurrency collapse or other kinds of financial fraud, those would be very dangerous jurors. Jurors who can identify with those that may have been victimized by this conduct.
But would those people be disqualified or would they have to be used Would you have to use it one of your strikes to get someone out?
They most likely would be stricken by the defense team. However, they will do their very best strategically if there's someone that they're worried about that they will make a case to the judge that the prior experiences that this juror may have had creates a bias that they would not be able to put aside, which is why ultimately it's the judge who makes the call as to whether there's
a potential cause strike there. One of the things that is very interesting in this case is the extreme intelligence of Sam Bankman fried in a somewhat eccentric way that may create division among jurors as to whether he's a boy genius that we should all be admiring. And he didn't know a lot about what the official rules were. He was just really smart and managed to put this
all together. But he's not some premeditated crook, and therefore he's somewhat of a sympathetic figure because as he had he didn't have knowledge really of the all the rules in the pond that he was playing in. So I think that's the beneficial juror for him. But the more likely ajor that he would be worried about is someone who is very suspicious of how a thirty year old can be one of the richest people in the world
without having done something wrong. People who are I would say, actually older jurors, who are of the generation that has to work hard, would be more dangerous for him than younger jurors.
See that's interesting. That's why maybe I should have it off, because I would think that maybe you would want boomers because they would be like, oh, Sam reminds me of my son. I think maybe the younger generation is more skeptical of billionaires in general, more liberal. We're believing that, you know, all money shouldn't be concentrated in the few. I mean, you have to be speaking. These are all vast generalizations, I guess.
But you know, that's a really interesting point that you've just made LJ. Is that we are doing vast generalizations here, and a lot of what lawyers do in the absence of a jury consultant is basically rely upon stereotypes and their own experiences. With people, and that's the way the law has been for years and years and years. When psychologists or jury consultants start getting into the mix, it's
just a check on those presuppositions. And often that is why we do the focus groups or the research in order to test them out for ourselves.
And when you say you do these focus groups, like, how does that work? Do you have the lawyers give opening statements and you have twelve random people listen to the opening statements and then they say what they think about it?
That's pretty close, LJ. You could have my job. You see, we're trying to provide a sample of what jurors in the trial venue might think. So we sample broadly. We may have many more people than that listen to the lawyers describe the case, and divide them into multiple groups, so we may have the ability to compare this group versus that group. This group found him guilty, this group didn't. What were the differences? And why?
You know, you're a trend as a psychologist, and you start paying attention to the jurors as soon as when you're working on a case, right as soon as they walk into a courtroom. Could you describe what is it that you're looking for. What are you paying attention to? And specifically, let's pretend that it's Sam's case, what would you be watching out for.
So it's a very tense day. Your adrenaline is definitely running and unusual sitting at council table with my clients, next to the lawyers, and in this case, if I were working for Sam bankmin Freed, which I'm not, I would be sitting next to him and his lawyers at council table. I immediately start looking at the demographic makeup of the group as they walk in, and this will be a courthouse filled with potential jurors. I'm immediately looking
at how many men, how many women? Making mental tallies, trying to get a sense of the demographics. How many gray heads do I see, how many people carrying iPads and technology, whether they're dressed neatly, whether they're dressed in a business suit, whether they're treating the environment formally or informally. Looking for things that may be relevant in this matter,
but looks are deceiving. I want to be very clear about that body language and appearances are not matter the most in jury selection, but you can get some assessments of personality.
And as a psychologist, when you're listening to the jury speak, when they're answering the questions, how do you listen differently than your average person? How does your training help you with that?
That is a great question because I could be sitting at council table with three other lawyers and none of them will have heard what I heard. It's not the content of what they say, it's how they say it. So I am looking at whether they are being truthful? In my eyes is how forthright are they being? Are they trying too hard to get on this jury by
being very loquacious and talking a lot? Are they being more attentive to one lawyer or the other, But also they tipping their hand inadvertently because they may use the word rules, for example, in describing their job, and the word rules may come up.
And Yeah, and I definitely think in the case of Sam Menkman Freed as the defense, if you're on the defense team, you probably wouldn't want someone who is very into rules.
Same same.
You know, this is such a high profile case. People are going to be coming in maybe having heard about Sam. What impact does that make on Dury's selection.
Yeah, it's a really good question, and as I noted in these submitted questions for Vader, both sides are interested in what have you heard in the pre trial days? And then the publicity. First off, jurors will know that it's an important case because of the publicity, and that actually makes them sometimes really want to be on the jury, and it may also intimidate them and they feel like it's going to be too much in the glare of
publicity and they don't want that responsibility. And sometimes that in itself gets brought out in jury selection when jurors start talking. But overall, I think that exposure is not necessarily what either side needs to worry about. It's whether jurors feel that they have been persuaded to one side or the other already, and then what have you heard and what opinions have you formed? Now that's the jackpot if you can get the judge to ask what opinions
have you formed? If they say that they've formed an opinion already, the chances are they could be excused for cause, which is why I think it was on Sam bangman Fried's questions they actually asked, have you posted anything on social media about this case? About crypto currency? About FTX Alameda, have you posted anything, Because that's someone who has an opinion and they've shared it, so they're much more dangerous, much more dangerous.
Yeah, So if you want to get out of jury duty, what you should say is, I've already made up my.
Mind pretty much. That's the silver bullet. That's the magic bullet right there. Yeah, I've already made up my mind and nothing I hear in court is going to change me. But judges are not pushovers on this. The judges are pretty adept at winnowing out people who are trying to get off jury duty and people who are really troubled by something that has happened in their own experience or that has already made them form an opinion.
Do you think in this case, if you're on the defense or on the prosecution, who do you think would be more concerned about the jurors coming in Having read a lot about Sam and who would want those types of jurors.
I think Sam bangman Fried's side will probably be more interested in people who start out neutral and not having not knowing very much. Yeah, And the government may be they may not be as interested in finding people who are ignorant of everything, but they may have benefited from some of the preacher out publicity for sure.
Stick around judging. Sam will be right back, welcome back.
Are there any proposed, why, dear, questions that you found interesting that stood out to you.
There is one question on the proposed by Sam Bangman Fried's side to ask about ADHD, but that's just the tip of the iceberg. They're going to want people who have familiarity with ADHD and may forgive him some things because of it. There is on I believe it's I believe it was on Sam Bankmin Freed side, the question about effective altruism, which I just find is an interesting area overall because people probably have never heard of it before until this trial, if they've heard of it at all.
On the other hand, they've heard of billionaires giving away money. There are many other wealthy individuals who are prominent donors to social causes. But this political focus of Sam Bakmin Freed's giving under this philosophical umbrella of effective altruism is interesting to try to get at in VA, Dear.
Yeah, hold on, let me see if I can find If I can find the questions here, I have got it. It's three of them. Do you have any negative opinion about amassing wealth to support causes to improve the world or help others? If so, what is your opinion and why have you heard or are you familiar with the philosophical movement called effective altruism or EA? And the last
one is what you've been alluding to all along. Is there anything you have read, seen, or heard about effective altruism that would make it hard for you to be a fair and impartial juror in this case?
So those questions are stand ins and what the judge, How far the judge opens the lid on that is anyone's guess, But quite honestly, it borders right, it walks right up to political political sentiments because so much of sam bankman Fried's giving was political in nature. And I think that there is a lot of political undertone here that won't be explored in court. And this question is the only way they're really trying to get at.
It, because they can't say, like, are you a Republican?
Can's not allowed? They're not going to be able to find that out. Now had there been prior jury research by either side with focus groups and they were able to develop of long Sam bankmin Fried's own inclinations, a statistical predictor of what Republicans versus Democrats might think about his case. You know, that would be useful. But how are you going to find the Republicans and the Democrats in this jury pool? It's very difficult.
Oh and they also ask what newspapers and magazines and stuff do you read? So that's kind of a giveaway.
So there's a triangulation happening looking for clues breadcrumbs in other areas that give insight into what their political leanings might be. If you watch certain television, if you watch FOXTV, if you watch CNN. I mean there are things that will be clues in that direction for sure. Now here's a very good question often asked jurors. Is there something I should know about you that hasn't come up yet in the questioning that you believe pertains to this court trial,
to this trial or this matter. Often that's a question asked of jurors at the end because they may be sitting on something that nobody's quite asked them yet, and they you know, they know that their first cousin, once removed, dappled in cryptocurrency, but nobody asked.
Yeah, and I can see if you're a juror and a judge asked you that it can make you sligh, and you just you feel like you have to say, like right, thinking right, right.
And it is a very imposing environment. I've been in Southern District of New York and this courthouse and selected juris in that courthouse, and it is a courthouse that is awe inspiring. It's quite formal, and when the judge starts asking you questions specifically there from the bench, it's enough to make you not play games. Let's just put it that way.
We'll be back in a minute. With one last thing, Ellen. One thing that you do as a jury trial expert is you also research how jury's respond to witness testimony, right absolutely, And in this case, there's going to be at least three former FTX officials who have pled guilty and they are going to testify against Sam in exchange for lesser sentences. What can you say about how jurors tend to think about testimony from cooperating witnesses.
Well, I think in this case there's no doubt about it. Mss Ellison is going to be a very important witness and jurors are going to be looking forward to her testimony.
That's Caroline Ellison, Sam's former on and off again romantic partner.
Yeah, romantic partner and head of Almida. Yes, she's pled guilty and she has agreed to cooperate with the government from what I understand. So you're asking whether jurors will discount her testimony because she has this deal, right.
Yeah, exactly.
Jurors will be very attentive to assessing her credibility independent of that, I believe because she's got so much information, I think they will be attending more to her than many other witnesses and looking for is she telling the truth or is she not telling the truth based on what they see with their own eyes, and I think that that will carry in some way more weight for them in this trial than knowing that she had a
plead deal. Often people are somewhat They approach the witness who has cooperated, and they approach them with some caution, but they will give that witness the chance to persuade them that they're telling the truth. Because jurors do think that their main job is to determine whether witnesses are
telling the truth. They really think it's their job to determine that, and they think that they are very good at it, so they will be using their own eyes and ears and coming up with their own judgment of whether she's telling the truth or not. And someone will bring up, of course, that this could all be made up because she's just trying to save herself. But others
will say, yeah, but I believed her. If she does not convince the jury, it's you know, that's a different story than that they won't give her a chance because she has already pled guilty and is cooperating with the government.
What is it that makes someone seem credible to a jury? Like I've heard Caroline speak. I know, I relate to her also as a courage woman who's relatively fetite, who tends to of talk like is that something that's going to work against her? Like sometimes you know, people have criticized me for not always founding super certain, and I I think people have said that about Karrolyne Elison. Do you think how do you think the jury is going to respond to her specifically?
I think that it will depend upon the makeup of the jury, for sure. I think that women on the jury will be more sympathetic to everything you just said about her, But there will be cynics for sure that she is where she is because she was the girlfriend that they were in the same hotel room, luxury penthouse and the Bahamas running these two supposedly separate companies, but they're really one and the same person. They're Ying and Yang, you know, two parents as university professors. I mean, the
coincidences in their relationship are eerie. The end result will be she has to be presenting herself as confident in what she says, and jurors will be quick to judge if she is hesitant, if she contradicts herself, but she has a chance to really bring him down if jurors believe her, and it's up to her. I think she's a very very important witness.
Allan like it.
Thank you so much. This was a fascinating conversation.
Thank you for having me. It will be a trial to watch, that's for sure.
We'll be back in your feed soon with more expert analysis and news from Sam Bankman Freed's trial. Thanks for listening. This episode of Judging Sam was hosted by Lydia, Jean Kott, Catherine Girardeau and Nisha Venken produced this show Lydia Jeancott is our court reporter. Sophie Crane is our editor. Our music was composed by Matthias Bossi and John Evans of stell Wagons. Symphonette Judging Sam is a production of Pushkin Industries. Got a question or comment for me, There's a website
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