The attorneys for Lauren Stevens have succeeded in convincing a federal judge to toss an indictment that charged her with obstructing an FDA probe into off-label marketing of Wellbutrin SR, because federal prosecutors incorrectly portrayed her defense to a grand jury. However, US District Court Judge Roger Titus also ruled the government can seek a new indictment.

At the heart of the ruling is her contention that she received advice from other Glaxo lawyers, including the King & Spalding law firm that regularly works for the drugmaker. Stevens wants to offer what is known as ‘advice of counsel’ defense, although prosecutors argue this should not be permitted, because it might confuse a jury (back story here, here, here and here).

In his order, Titus wrote that prosecutors gave “erroneous and prejudicial legal advice” during the grand jury proceeding. A grand juror asked prosecutors whether it mattered that Stevens had been “getting direction from somebody else about how to handle” the FDA inquiry. Prosecutors responded by saying Stevens was required to disclose everything she knew to the FDA, not just rely on advice. In their filings, the Stevens lawyers charged prosecutors misinformed the grand jury.

Titus agreed: “The grand juror’s question was not just any question, but rather was much akin to asking about an elephant in the room. The grand jury was well aware of the defendant’s role as the
leader of a team of lawyers and paralegals and the question was a natural one that arose out of her status. The question went to the heart of the intent required to indict. The incorrect answer either substantially influenced the decision to indict or, at the very least, creates grave doubt as to that decision. Accordingly, dismissal of the indictment is appropriate and required in the interests of justice.”

However, he added that “this is not a case in which the government attempted to affirmatively mislead the grand jury to obtain an indictment—rather it is a case in which pprosecutors simply misinstructed the grand jury on the law. However, even in the absence of willful prosecutorial misconduct, a defendant is entitled to dismissal of an indictment…where actual prejudice is established,” he concluded (read the order here).

wastebasket courtesy of l marie on flicker