No matter what they say, or don’t say, there must be people in the Justice Department who wish they had never heard of Lauren Stevens, the former GlaxoSmithKline vice president and counsel who was acquitted on Tuesday of lying to the federal government about GSK’s marketing of a drug.
Prosecutors made tactical mistakes, to be sure. But far worse than that, they aggressively pushed a case that never should have been brought in the first case, a federal judge concluded as he took the unusual step of acquitting Stevens before the jurors could even start deliberating.
“It would be a miscarriage of justice to permit this case to go to the jury,” U.S. Judge Roger Titus of the District of Maryland ruled in tossing out the six charges: one count of obstructing an official proceeding, one of concealing and falsifying documents and four of lying to the Food and Drug Administration.
“I conclude on the basis of the record before me that only with a jaundiced eye and with an inference of guilt that’s inconsistent with the presumption of innocence could a reasonable jury ever convict this defendant,” Titus declared.
The case of Stevens drew wide attention, since it concerned the government’s efforts to regulate the conduct of a huge drug company and illustrated the dangers that in-house lawyers can stumble into when responding to inquiries by regulatory agencies.
The DOJ accused Stevens, who was acting as a liaison between GSK and the FDA, of lying to the agency in connection with GSK’s alleged promotion of the drug Wellbutrin for unapproved, or “off-label,” uses. She was indicted last fall on four counts of making false statements, one count of obstruction of justice and one count of falsifying and concealing documents.
John Wood, a partner at Hughes Hubbard & Reed and a former U.S. Attorney for the Western District of Missouri, observed that the case was “particularly noteworthy because the charges against Stevens relate only to her actions in conducting an internal investigation and responding to the government inquiry; the charges do not include any allegations that she was involved in the underlying conduct that gave rise to the investigation.”
Other lawyers have offered similar comments.
From the beginning, Stevens contended she acted in good faith, based upon lawyers’ advice, in dealing with the FDA. Indeed, it has been pointed out that Stevens relied on the advice of several other lawyers.
But the DOJ was unmoved. “As I have said before, if we find credible evidence of criminal conduct – by corporate executives or the lawyers and accountants who advise them – we will not hesitate to charge it,”Assistant Attorney General Lanny A. Breuer, in charge of the Criminal Division, told a meeting of corporate lawyers in January in an allusion to the Stevens case.
But the judge, who heard the case in Greenbelt, Md., said the record showed that Stevens was “not engaged to assist a client to perpetrate a crime or fraud” when she weighed what to convey to the FDA. “Instead,” the judge said, “the privileged documents in this case show a studied, thoughtful analysis of an extremely broad request from the Food and Drug Administration and an enormous effort to assemble information and respond on behalf of the client.”
“The responses that were given by the defendant in this case may not have been perfect; they may not have satisfied the FDA,” the judge went on. “They were, however, sent to the FDA in the course of her bona fide legal representation of a client and in good faith reliance of both external and internal lawyers for GlaxoSmithKline.”
“Lawyers do not get a free pass in front of me,” Titus emphasized, describing himself as “more than happy” to send crooked lawyers to prison. But a lawyer “should never fear prosecution because of advice that he or she has given to a client,” he said.
Ellen S. Podgor, who writes the White Collar Crime Prof blog, has been critical of the government’s handling of the Stevens case, questioning whether pursuing her was really worth the money and time. Perhaps, she suggested, perhaps what Stevens did deserved a look through the prism of an administrative proceeding.
But prosecutors persisted, even after they made a mistake that led to the dismissal of the original indictment in March. The mistake occurred when a grand juror asked if Stevens’ “advice of counsel” defense could be considered.
Yes, prosecutors replied, once the case goes to trial.
Wrong, the judge ruled; the “advice of counsel” defense should be considered in determining whether to indict Stevens in the first place. But the judge concluded prosecutors had not engaged in misconduct but had only made a mistake. So they were free to seek another indictment, which they did.
During the trial, the defense team, led by Reid Weingarten, argued that she never intended to obstruct or mislead anyone. “This was a non-trial. Lauren Stevens never should have been indicted, and the judge got it,” said Weingarten, a partner at Steptoe & Johnson in Washington, according to a report on Law.Com. The DOJ did not respond to a request for comment on the verdict.
Although he effectively demolished the prosecution’s case from the bench, Judge Titus said he had seen “great lawyering” from both sides. Someone has to win and someone has to lose, he observed. In this case, he said, “justice wins.”
Christopher M. Matthews contributed to this story.