After having their first effort to indict former drug company in-house counsel Laura Stevens thrown out by Judge Roger W. Titus (as discussed in a previous Legal Pulse post), federal prosecutors had to know that their second try wouldn’t be a picnic. But no doubt they were thoroughly unprepared for what transpired in Judge Titus’s courtroom in mid-trial this past Tuesday: a highly uncommon judicial order that the defendant did not have to put on a defense, and the jury did not have to evaluate the charges, because based solely on the government’s evidence, no rational trier of fact could find Stevens guilty beyond a reasonable doubt.

In other words, Ms. Stevens is acquitted, the prosecution (and the taxpayers whose money they spent) loses, and the jury can go home.

Some notable highlights from this remarkable turn of events:

A significant off-label prosecution is in shambles. This was an extremely important battle in the U.S. government’s controversial crusade against so-called promotion of off-label drug use. WLF has argued through court briefs, publications, briefings, and every other advocacy tool at our disposal that the legal theory advanced by the federal government in these cases is without support in federal law or the Constitution. Prosecutors not only wanted to tack a unique pelt to the Justice Department’s wall (species: attorney), but by charging an in-house lawyer for obstruction and false statements, it seemingly saw an opportunity to intimidate drug company corporate counsels. They even got a vice president from the targeted company to flip and agree to testify against Ms. Stevens. Judge Titus dashed those plans. But even worse for the government, as Hyman, Phelps & McNamara partner John Fleder points out at the FDA Law Blog, the judge was apparently prepared to charge the jury with a version of “off-label law” that tracked the defendant’s arguments, not the prosecutors’.

A criminal procedure Rule 29(b) motion is granted. Judge Titus said it best on this point. He told the jury after he granted the motion, “These motions are routinely made and rarely, if ever, granted. . . . In my seven and a half years as a jurist I have never granted one. There is, however, always a first.” Such a ruling is entirely disposative of the case and unappealable (see here for a good academic piece on these motions). In the process of explaining his reasoning, Judge Titus made some critical observations and conclusions:

  • The government never should have had access to privileged corporate documents. A Massachusetts magistrate judge, Judge Titus declared, erred badly when ruling the Crime Fraud Exception to the attorney-client privilege allowed prosecutors to “forage through confidential files.”
  • The “safe harbor” provision of the federal obstruction statute protected Ms. Stevens. Congress, Judge Titus explained, had just this kind of case in mind when it adopted a safe harbor for a lawyer to “zealously represent his or her client.”
  • Only a “jaundiced eye” could conclude the defendant made false statements. The judge found that Ms. Stevens’ statements were made in good faith, and that the government should not be permitted to extract statements she made to FDA completely out of the broader context in which they were made and label them false. He concluded his explanation on the Rule 29(b) motion with a scathing rebuke: “[O]nly with a jaundiced eye and with an inference of guilt that’s inconsistent with the presumption of innocence could a reasonable jury every convict this defendant.”

Vigilant protection of the practice of law.  Judge Titus went out of his way to explain that he has no problem with lawyers being prosecuted and harshly punished if found guilty of a crime. But government must tread very lightly when targeting lawyers, as “There is an enormous potential for abuse in allowing prosecution of an attorney for the giving of legal advice.”  Corporate counsel, and outside counsels as well, should be breathing a deep sigh of relief with this result.

Ms. Stevens “should be permitted to resume her career.” Judge Titus stated this right after saying that “the defendant in this case never should have been prosecuted.”  That is cold comfort, however, to Ms. Stevens, who lost her job and was forced to spend a fortune on legal fees.  One hopes that the definitive nature of Judge Titus’s dismissal will help her resume her career, but as former Labor Secretary Raymond Donovan asked after his acquittal in 1987 (and many other victims of overzealous white-collar prosecutions have no doubt thought) “where do I go to get my reputation back?