Martin Shkreli’s defense attorney objected to a prosecution request that the “pharma bro” be gagged during his ongoing securities fraud trial, and blamed reporters for baiting his emotionally fragile client into publicly blasting prosecutors, witnesses and the press.
Shkreli’s “comments are clearly not designed” to affect the “integrity of the judicial process,” of the trial in Brooklyn, New York, federal court, wrote his lawyer, Benjamin Brafman, to Judge Kiyo Matsumoto on Monday night.
“Rather his comments are the somewhat natural, though unfortunate, consequence of a young man with a demonstrated history of significant anxiety being at the center of a supremely difficult time in his life,” Brafman wrote.
Brafman also said, “In fairness to Mr. Shkreli, the Court should be aware that certain representatives of the press have gone out of their way to try to ‘bait’ Mr. Shkreli into making public statements that we all have worked very hard to avoid.”
In fact, Shkreli last Friday walked, uninvited, into a courtroom that reporters use to monitor a video and audio feed from his trial’s courtroom, and began speaking to journalists freely. Shkreli answered questions from the reporters, and also asked them questions during an exchange that featured him making scathing comments about the prosecution, commenting on the evidence against him, and criticizing some of their coverage of the case.
Shkreli only stopped talking when Brafman poked his head into the room and asked him to step outside.
Brafman, in his letter Monday, wrote that Shkreli, 34, believes he is “being targeted” by federal prosecutors “not because of his conduct, but because of who he is.” He also believes the press is focusing “unfairly on negative aspects of him” in its coverage of the case, the lawyer wrote.
“Having said that, we also note that Mr. Shkreli is under enormous pressure that is compounded by his clearly frail emotional state.”
Brafman told the judge that “we have spoken to Mr. Shkreli and we will make every effort to remove this issue from the case.”
“We object strongly to the gag order,” the lawyer wrote. He added that if the media coverage “remains prejudicial” defense attorneys must be allowed to respond to that coverage, if necessary.
The lawyer’s response in a letter to Matsumoto came after prosecutors filed a motion asking to bar Shkreli from making any more public comments about the case, either to the press, on Twitter or other social media, as long as the trial is ongoing.
Prosecutors also want defense lawyers and themselves gagged from making public comments.
Shkreli is charged with securities fraud in connection with his alleged looting millions of dollars from Retrophin, the publicly traded drug company he founded. Prosecutors claim he used the money to repay investors whom he allegedly defrauded at two hedge funds he had run, in addition to paying off personal debts.
In their motion, prosecutors cited Shkreli’s surprising, impromptu meeting with reporters covering the case last Friday, among other incidents.
During that meeting, Shkreli called the prosecutors “the “junior varsity,” criticized a witness against him, and lambasted headlines about the case.
Those prosecutors said Shkreli’s off-the-cuff remarks, made against the desperate wishes of his lawyers, “risks tainting the jury.”
Prosecutors, who believe that Shkreli has resumed posting on Twitter under a pseudonym despite being banned from the social media platform earlier this year for harassing a female reporter, also want him barred by the judge from tweeting further about the case.
If they don’t get the gag order granted, prosecutors want a semi-sequestration of jurors to protect them from hearing or reading Shkreli’s comments during his trial on charges of securities fraud.
The prosecutors’ filing cites a video featuring a CNBC reporter asking Shkreli’s lawyer Brafman how he felt about his client’s scathing remarks after court recessed Friday.
Shkreli, who was walking alongside Brafman interjected, “He’ll do whatever he wants.”
When the reporter asked Shkreli, “You can do whatever you want, Martin?” Shkreli replied, “Yes,” according to the prosecutors’ motion.
Brafman, in own letter Monday, claims the reporter was needling both him and Shkreli.
Also attached to prosecutors’ motion were several news articles about Shkreli’s comments, as well as suspected tweets under the Twitter handle @BLMBro.
Prosecutors wrote: “The government respectfully moves this Court for an order to limit extrajudicial statements by the defendant Martin Shkreli and counsel for all parties during the pendency of this trial.”
“Since the empanelment of the jury, Shkreli has engaged with the press — in apparent contravention of the instructions of his lawyers — in the courthouse itself, directly outside the courthouse and on digital media in a manner that risks tainting the jury,” the motion says.
“In order to protect the public’s interest in a fair trial in which the jury will reach a verdict based solely on the evidence presented in the courtroom, the defendant should be restrained from further public comment during the pendency of the trial. In addition, or in the alternative, the government seeks semi-sequestration of the jury.”
Prosecutors also wrote: “Unfortunately, despite the assurances of defense counsel prior to trial—as well as efforts by defense counsel to control Shkreli—once the jury was selected and empaneled, Shkreli embarked on a campaign of disruption by commenting on trial evidence and witnesses to the press and on social media, and by making a spectacle of himself and the trial directly on the courthouse grounds.”
The prosecutors also noted that during his visit to reporters on Friday, “in addition to his comments on the evidence and witnesses, Shkreli also made inappropriate personal attacks on current and former prosecutors in this case.”