Martin Shkreli won’t learn the verdict in his criminal case on Friday, but what gets said during the day could make a big difference in what the verdict in his securities fraud case ultimately turns out to be.
Shkreli, 34, is due to appear in federal court in Brooklyn for a hearing on two legal requests to a judge, whose rulings potentially could affect how a jury views the notorious pharma bro at trial.
His first request is to be allowed to mount a defense that will, in effect, claim that he is innocent because he was relying on the advice of his then-business lawyer when he allegedly committed the actions that now form the basis of the charges against him.
This so-called reliance on counsel defense would point the finger of blame at Shkreli’s former lawyer, Evan Greebel, who is charged with Shkreli in the case.
Prosecutors accuse them of conspiring to loot a drug company that Shkreli founded, Retrophin, out of millions of dollars, in part to pay off investors that Shkreli was accused of defrauding at hedge funds that he ran.
Both men have pleaded not guilty. Greebel is accused of two criminal counts: conspiracy to commit wire fraud, and conspiracy to commit securities fraud. Shkreli is accused of those counts, as well as six others.
If Judge Kiyo Matsumoto grants Shkreli permission to use the reliance of counsel defense, it would give his lawyers a potentially powerful tool to fight the charges at trial.
If jurors are confused by the series of financial transactions that are at the core of the case, and buy Shkreli’s argument that he was being led through them at the time by a lawyer with expertise in those matters, they could decide there is reasonable doubt that Shkreli acted criminally.
Shkreli and Greebel also are asking to be tried separately in the case. If that request is granted by Matsumoto, Shkreli would be tried first, beginning in late June, and Greebel would be tried this fall.
If there are separate trials, both men could potentially avoid a spillover effect at a joint trial, where jurors have difficulty distinguishing between the two men’s conduct. If they are tried in a single trial, defense lawyers will have to take particular pains to make sure jurors don’t do that.
The accusations in the pending criminal case are unrelated to the controversy that first brought Shkreli national notoriety: his having hiked the price of an antiparasite drug by more than 5,000 percent after acquiring it for his other company, Turing Pharmaceuticals.
However, Shkreli’s brazen defense of his price hike, and his many antics on social media and in the conventional press since then could bolster Greebel’s bid for a separate trial.
In a legal filing in February, lawyers for Greebel called Shkreli a serial liar who “is guilty of committing fraud,” and who has purposefully created a media “circus” to distract jurors from the evidence against him.
Shkreli has an “extraordinary amount of negative notoriety,” Greebel “has absolutely no notoriety,” the filing said.
Greebel’s lawyers said that since Shkreli’s arrest in December 2015, “as part of his calculated effort to become ‘more polarizing,’ Mr. Shkreli has engaged and continues to engage an almost-daily, if not hourly, basis in deeply offensive attacks on women, the media, public figures and government officials.”
The filing also said that Shkreli’s attacks “on women have been extreme, hostile, and unrelenting.”
Greebel’s lawyers argued in that filing that because of Shkreli’s notoriety and his stunts since then, “Mr. Greebel will be deprived of his right to a fair trial” if they are tried jointly.
The two men, Greebel’s lawyers said, “have mutually antagonistic and irreconcilable defenses,” and “there will be no realistic way for a [single] jury to find both defendants not guilty.”
“We will be arguing to the jury that, among other things, Mr. Shkreli is guilty of committing fraud and that Mr. Greebel is not guilty of the charges against him,” wrote Greebel’s lawyer Reed Brodsky.
“We will present strong evidence that Mr. Shkreli repeatedly lied to, misled, and omitted material information from Mr. Greebel and other attorneys at Katten Muchin Rosenman,” Brodsky wrote, referring to Greebel’s former law firm. “Indeed, we will demonstrate that Mr. Greebel was an unknowing pawn in a fraud about which Mr. Greebel was unaware.”
Shkreli, in a Financial Times interview last November, admitted to having a plan “to make the case ‘more polarizing and popular’ by creating a circus-like atmosphere and encouraging hostile publicity.”
“And he admitted that his goal is to create the same kind of chaos that surrounded the OJ Simpson, Casey Anthony and Sean ‘P Diddy’ [C]ombs trials to obtain an acquittal as the defendants did in those cases,” the filing said.
The Financial Times quoted Shkreli as saying, “I have this fringe theory that I’ve sort of stress-tested a little bit — the more polarizing and popular a case is, the more likely an acquittal,” the filing noted.
In his own filings for Shkreli, defense lawyer Benjamin Brafman noted the large legal fees paid Greebel and his law firm, and also says that Shkreli spoke and emailed with Greebel and other lawyers “virtually every day, often dozens of times per day,” on every topic facing Shkreli’s business. The filing cited “tens of thousands of emails” between Shkreli and Greebel.
“Greebel provided legal advice and insight to Shkreli, which Shkreli followed faithfully,” Brafman wrote. “Because Shkreli relied closely on his experienced legal counsel and other attorneys at the firm, Shkreli has a valid ‘reliance on counsel’ defense.”
“Martin Shkreli maintains his complete innocence,” Brafman wrote. “The evidence will show that he did not defraud, steal, lie, or cheat anyone out of money, and that he devoted his best efforts to bringing value to his investors.”
Brafman said that Greebel’s argument about being misled by Shkreli is “patently unfounded and flatly contradicted by the written communications between Shkreli and Greebel as well as other evidence.”
Brafman also told CNBC in a statement in February, “We believe that it would be quite impossible for either Defendant to get a fair trial if tried together.”
Correction: Martin Shkreli is 34 years old. An earlier version misstated his age.