A federal judge Tuesday rejected a request by defense lawyers for pharma bro Martin Shkreli to declare a mistrial in his case because of a flurry of news stories about the scathingly negative opinions some prospective jurors have of him.
Judge Kiyo Matsumoto also knocked down the defense’s request that a pool press reporter not be allowed to listen in on sidebar interviews with prospective jurors, which is where those people have been voicing their blunt views on the notorious Shkreli, if they happen to have any.
Those views had led to a screaming front page in the tabloid New York Post saying “Jury of His Jeers: 134 jurors out in ‘Pharma Bro’ trial: They all hate him.”
A number of potential jurors were excused on Monday after they called Shkreli “a very evil man,” “a snake,” said that he was the “face of corporate greed,” and “the price gouger of drugs.”
Shkreli’s lawyer Benjamin Brafman said he feared that such headlines and stories would have been read by and tainted the opinions of prospective jurors who remain a pool of people who could end up deciding whether to convict the pharmaceuticals executive.
“I think it’s impossible for jurors not to see them,” Brafman said. “I have someone who is facing 20 years in prison.”
Matsumoto’s decision rejecting the mistrial motion was followed by jury selection resuming with a pool reporter listening in on sidebars. So far, no jurors have been seated.
The judge’s ruling came after the morning began with a closed-door hearing with prosecutors and defense lawyers, which members of the media were barred from attending. At that hearing, Brafman later indicated, he had raised his request for a mistrial, which would have allowed the trial to start afresh with a new pool of jurors in a number of weeks.
After a group of reporters contacted their own lawyers, the courtroom in Brooklyn, New York, federal court was open to the media.
When Brafman began talking to Matsumoto publicly about the negative comments reported about his client, Shkreli smirked broadly at reporters in the gallery. Sitting behind those journalists was Shkreli’s father.
Brafman criticized the Post’s headline for being wrong, because only a fraction of the people who were dismissed on Monday as jurors had voiced criticisms of Shkreli, while most of them were excused because they had conflicts due to scheduling, as well as family, work and medical issues. Brafman said he feared that some potential jurors would feel that were being portrayed as idiots because they did not have negative views about Shkreli.
Katherine Bolger, a lawyer representing a group of media outlets, argued via telephone against barring the pool reporter from listening to jurors being questioned out of the earshot of the gallery. Those sidebars happen if potential jurors say they have a conflict of some sort that would make it difficult for them to serve.
Bolger said that the coverage in media so far reflected accurately that a number of people have negative opinions of Shkreli, which Shkreli himself helped to create by his conduct, which includes raising the price of a drug used by some pregnant women, infants and people with HIV by more than 5,000 percent.
“He created these opinions himself,” Bolger said of Shkreli, who while free on $5 million bail has repeatedly made controversial comments on social media and elsewhere.
Barring a pool reporter, the lawyer said, “Will not stop people from having bad views of Mr. Shkreli.”
And, Bolger added, “Frankly, the the fact that you can’t find a sympathetic jury for the guy, apparently, is something the public has a right to know.”
Brafman argued strenuously against Bolger’s push for continued press access to the sidebars, but did concede one point.
“Mr. Shkreli, God bless him, has created part of the problem,” Brafman said.
Monday’s proceedings, a day before the mistrial request, went slowly because of the time it took jurors to be screened for conflicts or bias.
“I think he’s a very evil man,” said one young woman, according to the pool report.
“I don’t think I can be fair. My opinion is pretty well formed,” she said.
A male prospective juror said, “I have total disdain for the man.”
A second man said, “This is the price gouger of drugs. My kids are on some of these drugs.”
A third man said, “He kind of looks like a d—.”
A middle-aged woman, who likewise was excused, said that when she walked into court Monday morning, “I looked right at him and in my head I said, ‘He’s a snake.'”
The judge plans to seat 12 jurors with six alternates.
Shkreli is accused of ripping off his former drug company Retrophin for millions of dollars to repay allegedly defrauded investors at his hedge funds. The charges include securities fraud and conspiracy to commit both securities and wire fraud.
The charges are unrelated to Shkreli’s other drug company, Turing Pharmaceuticals, raising the price of the anti-parasite drug Daraprim from $13.50 per pill to $750 per pill in 2015.
Shkreli is being tried first, before his co-defendant Evan Greebel, who was a business lawyer for Retrophin. Greebel, who likewise has pleaded not guilty to the charges, is expected to go on trial later this year.
While maintaining his innocence, Greebel’s lawyers earlier this year in legal filings called Shkreli a serial liar who is “guilty” of fraud.