The “Pharma Bro” Case: Picking a Jury For an Infamous Defendant

Today I picked up the newspaper and read about the difficult jury selection in the Martin Shkreli federal trial.  Shkreli, known as the “Pharma Bro” is one of the most despised people in America, in large part due to his raising the price of Daraprim – a drug primarily used to treat newborns and HIV patients – from $13.50 to $750 a pill while he was the chief executive of Turing Pharmaceuticals a few years back. When challenged by a journalist about this outrageous move, Shkreli smugly called the journalist a “moron.”  During jury selection for his Securities Fraud trial in federal court in Brooklyn, his attorney moved for a mistrial, decrying the inability to find a single prospective juror to be seated at Shkreli’s trial due to claims they could not be impartial: Shkreli is simply too hated by everyone who knows anything about him.  I was drawn back to a high profile trial of mine from years ago when we also were seemingly unable to find a jurors who didn’t believe the defendant was guilty – before even hearing opening statements.  As in the Gotti, Jr. trial from 2005 and in Martin Shkreli’s today, well, just because the jury hates your client and has prejudged the evidence, a fair trial can still be had.  Twenty-three days after John’s trial began, he walked out of prison, acquitted on two charges, hung on the rest, despite the seeming impossible task to find one, let alone 12 impartial jurors.  I have empathy for Shkreli’s attorney but remember how such juror pool animus against a defendant could be turned around and used to one’s advantage.

Problem Number 1: Defense Lawyers Can’t Question Jurors in Federal Trials

Remember that in federal court, the defense attorneys are not permitted to voir dire the members of the jury pool, or directly question them.  Instead, the judge does the questioning, oftentimes following up on answers the jurors put down in the lengthy written questionnaires they are required to complete in high profile trials.  So sitting there at the defense table and watching as one potential juror after another claims that your client is guilty can be an excruciating time – especially considering they have yet to hear a word of evidence.  I recall complaining over and over to Judge Scheindlin and her responding, “Your defense is that he was in the Mafia and left it.  Why are you surprised the jury thinks a Gotti is guilty?”

Overwhelming Prejudice

Not only did we face the problems associated with the scary Gotti name and the fact that the client’s father had died in jail, his uncles were in jail on long sentences and that he himself had just completed a federal sentence, but we had to deal with alleged victim/government witness/loudmouth talk show host Curtis Sliwa screaming every day on his five hour radio show that Gotti was guilty.  We attempted to stop Sliwa from discussing the case on air to no avail, concerned that the prospective jury would be further prejudiced by his inane rantings about the case: the Court denied our motion for a gag order on Sliwa in part because it was concerned that such an order would just get him and his prejudicial commentary more publicity.

Jury Experts Can’t Help

As an aside, I rarely use jury consultants. I have enough confidence in my ability to read people to not have to rely on consultants who too often strike me as completely and utterly full of shit and use empirical studies in place of life experience.  After all, successfully cross-examining cooperating witnesses who have been fantastic liars their entire lives requires a good understanding of human nature, the very quality one needs in picking a good jury.  I don’t know any jury consultants who have ever cross-examined one witness, let alone hundreds.

Sometimes it is Just Impossible to Find an Unbiased Jury

It became fairly obvious that the jury we would ultimately be forced to select would believe our client was guilty no matter what the judge told them about keeping an open mind.  And we would have no choice but to deal with this huge disadvantage at the start of the case.  And that’s what we managed to get on the jury: 12 jurors who believed that a Gotti was a Gotti and was guilty – but at least claimed they could look at the evidence honestly and be open to the possibility the defendant was not guilty.  Therefore, that was our main focus in narrowing down the jury pool – looking for jurors who could keep an open mind.  That overriding quality ruled the day instead of traditional factors defense lawyers employ when picking a jury. We ended up finding 12 supposedly open-minded jurors but I never believed that the jurors who ultimately were chosen were really capable of being fair to John.  This became more obvious when just before our opening statements, highly vetted-juror number 3 appeared to be openly weeping in the jury box.  I asked the judge to question her at sidebar, which she did.  When asked what was wrong, the juror blurted through tears, “I’m afraid I’m going to get axed!”  Naturally, the prosecutors felt that a quick admonition from the judge to juror number 3 would be sufficient for us to receive a fair trial.  When I told Judge Scheindlin that if she didn’t replace this juror I would start crying, the judge removed her.

How to Turn Around a Jury Prepared to Convict Before Opening Statements?  Humanize the Defendant, Make the Jury Feel Guilty 

During my opening statement, I hammered the point that the jury promised to be fair and needed to be fair.  I used every argument at my disposal and even guilted them into having open minds:

“When you heard the names of the defendants in this case, admit it – your immediate reaction was “oh man, this is the Gotti case.” You didn’t think of the other defendants’ names – in fact, they didn’t even register in your mind. “Gotti” was all that you heard. And when you told people that you had jury duty – and when you were allowed to talk about the case before being instructed by judge Scheindlin not to – you told everyone that you might be picked for “the Gotti case.” That name, this man, for better or for worse, was your focus when you thought about or talked about this case.

And try as you might, and you all promised to be open-minded and not prejudge Mr. Gotti – that’s why you were chosen as jurors – a little part of each and every one of you thinks he’s guilty of something. Try as you might to keep it out of your mind, try as you might to ignore that little voice inside that is nagging at you, there is a little part of you that already thinks he’s guilty.

And if you have trouble getting that out of your heads, I would ask you – I would beg of you – to consider how you would want your own family to be treated if they were in trouble and needed to depend on the fairness and openmindedness of strangers. You wouldn’t want your loved ones to be prejudged due to their name and their past.”

I also did all that I could to humanize the defendant during the trial, not that the jury wouldn’t have thought he was completely human: John is a warm and funny guy, very unlike what people would expect. We often joked in front of the jury, he laughed a lot – he even hilariously blurted out “it wasn’t me!” when some feedback from the court’s sound equipment sounded like a loud gunshot.  I grabbed his head in my hands during the summation, showing the jury that he was human and deserved their empathy and mercy and implored them to be fair, reminding them again that they should give John the “same treatment [they] would want for your loved ones and friends.”  In the end, that the jury came into the case so ready to convict actually helped: they bent over backwards to be fair instead.  And 23 trial days later, John walked out of prison, acquitted on multiple counts and the jury hung on the rest.  One well-known jury consultant opined afterward that he was incredulous at some of the jurors selected for the case due to the admitted biases the jurors had and that it was a “miracle” there was no conviction.  Two thoughts: first, every juror in the entire panel had an admitted bias; second, the murder trial the “expert” had just picked a jury for ended in a conviction on all charges.

Just Because the Jury Hates Your Client Does Not Mean You Have No Chance at Trial

Moral to the story: a jury which comes into a trial prejudging or even hating a defendant as they certainly do in the case of “Pharma Bro” Martin Shkreli, can still be fair and deliver a positive verdict.  Jurors take their roles very seriously and are always willing to give an infamous defendant the benefit of the doubt – especially and usually only if the defense lawyer can give them a reason to pause on the way to a guilty verdict. Eviscerating the prosecution’s case helps.

Jeffrey Lichtman has received the highest rating (AV) from the Martindale-Hubbell Legal Directory, is recognized in the Bar Register of Preeminent Lawyers and has also been selected as a New York City Super Lawyer for being a leader in his field of criminal defense. Mr. Lichtman has received a rating of 10.0/10 Superb rating from Avvo Lawyer Directory and was profiled in the New York Daily News, The New York Times as part of the “Public Lives” series, New York Magazine and Ozy. He can be reached at (212) 581-1001.