Stevens Judge: Jury Could Have Convicted "Only with a Jaundiced Eye"

A FEDERAL JUDGE on Tuesday acquitted Lauren Stevens, the indicted former in-house lawyer for GlaxoSmithKline, of six criminal charges that she obstructed a federal investigation and made false statements to investigators.

“I believe that it would be a miscarriage of justice to permit this case to go to the jury,” U.S. District Court Judge Roger Titus of Maryland wrote in his ruling. “I conclude that the defendant in this case should never have been prosecuted, and she should be permitted to resume her career.”

It was a rare ruling. In seven and a half years as a jurist, Titus had never granted a directed verdict of acquittal before the defense even put on its case. Until Tuesday.

“Even if some of [Stevens’] statements were not literally true, it is clear that they were made in good faith which would negate the requisite element [of intent to commit a crime] required for all six of the crimes charged in this case,” the opinion said.

Stevens could not be reached for comment after the acquittal.

The case was especially noteworthy because Stevens, Glaxo’s ex-associate general counsel, was not accused of actually taking part in the underlying wrongdoing—the off-label marketing of the anti-depression drug Wellbutrin.

Rather she was charged with obstructing a federal investigation into the alleged wrongdoing, as well as with concealing records and making false statements to investigators.

In most off-label drug cases, the government charges senior business executives, said John Wood, a partner at Hughes Hubbard & Reed in Washington. Wood is a former U.S. attorney in Missouri, an ex-chief of staff for the Department of Homeland Security, and a former deputy associate attorney general in the U.S. Justice Department.

But in this case, the government gave a Glaxo vice president immunity from prosecution to testify against Stevens. The case “serves to highlight the pitfalls and risks to in-house counsel any time a major corporation responds to a sensitive government investigation,” said Wood, who was not involved in the case. The government’s focus on Stevens also was “reflective of the growing and enhanced role that inhouse counsel play now,” he added.

During the trial the Stevens 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, D.C.

Weingarten said the case was “a big deal” to all lawyers because it involved a federal statute called the safe harbor provision that normally protects attorneys, along with the Stevens’s reliance on advice of outside counsel from King & Spalding. In his ruling, Titus said Congress designed the provision to protect an attorney who is zealously representing her client. Two of the counts on which he acquitted Stevens were based on that statute.

His opinion explains, “GlaxoSmithKline did not come to Ms. Stevens and say, assist us in committing a crime or fraud. It came to her for assistance in responding to a letter from the FDA.”

To drive the point home, the judge noted that a bar subcommittee on criminal justice has “received complaints of prosecutors harassing members of the defense bar, and that vigorously and zealously representing a client is no a basis for charging an offense [of] obstruction of justice.”

As to other counts, Titus wrote, “The evidence in this case can only support one conclusion, and that is that the defendant sought and obtained the advice and counsel of numerous lawyers... Every decision that she made and every letter she wrote was done by a consensus.”

He noted that Stevens’ responses to the FDA “may not have been perfect… [but] were 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.” He concluded, “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.”

The judge also used his opinion to support attorney-client privilege. During trial, the government used evidence it had obtained from privileged attorney-client documents that were produced under an order of a magistrate judge in Massachusetts. That judge cited the crime-fraud exception to the privilege.

Titus was blunt in criticizing the magistrate's order: “Access should not have been granted to [the records] in the first place.”

Even so, he wrote, the documents actually worked in Stevens’ favor. They showed 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,” he said.

Titus added a warning: “There are profound implications for the free flow of communications between a lawyer and client when the privilege is abrogated, as it was in this case.”

By Sue Reisinger

Source: Law.com