Prosecutors want to gag “Pharma Bro” Martin Shkreli just days into his securities-fraud trial, saying his out-of-court statements to the media—and on social media—may affect jurors’ ability to fairly judge his case.
“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,” prosecutors wrote in a court filing late Monday to Judge Kiyo Matsumoto.
“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.”
They also claimed that Shkreli was circumventing Twitter’s ban against him and posting under a new account. He was suspended after a targeted campaign of harassment against a female reporter.
Shkreli started posting under the handle @BLMBro, prosecutors say. They outlined the similarities between the account’s interests and those of Shkreli, and linked to a YouTube video in which he appears to claim the account as his own.
“The Twitter user @BLMBro has commented on the evidence at trial and issues connected with the trial, both with direct Tweets and by ‘re-Tweeting’ comments that are critical of the witnesses and/or the evidence,” prosecutors wrote.
A Twitter spokesman said the company did not comment on individual accounts for privacy and security reasons, but confirmed that the account has now been suspended.
Prosecutors characterized Shkreli’s longtime media presence as “deeply divisive,” and pointed to the difficulty of selecting a jury for him. Shkreli’s former attorney and co-defendant, Evan Greebel, even got his case separated from Shkreli’s because of the latter’s public statements. But both Shkreli and his attorneys had assured the court that he would be on his best behavior for the duration of the trial.
“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,” prosecutors added.
The defense team has not yet decided whether Shkreli will take the stand at trial.
On Friday, prosecutors say, Shkreli wandered into a courtroom with a live-stream of the proceedings for press during the lunch break. Once there, he commented on how one of the witnesses against him was “not a victim,” and suggested how his attorneys would respond to some of the evidence raised in her testimony.
The prosecutors also noted that after court let out on Friday, Shkreli interrupted when a TV reporter asked his attorney, Benjamin Brafman, about Shkreli’s comments to the media.
“He’ll do whatever he wants,” Shkreli responded, speaking about himself in the third-person.
“I would very much appreciate it if he did not talk to the press because sometimes he doesn’t have a filter,” Brafman protested.
“Throughout the video [with Brafman], Shkreli is grinning broadly,” prosecutors noted in their filing to the judge.
They asked the judge to bar Shkreli and his lawyers from providing public commentary on the trial. If not, they asked the judge to partially sequester the jury, to shield them from such commentary outside the courtroom.
Brafman, the defense attorney, replied in a concise two-page memo to the government’s 28-page filing.
“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 have all worked very hard to avoid,” Brafman wrote, noting his client’s “clearly frail emotional state.”
Shkreli’s comments were not meant to be disruptions, Brafman claimed, but are “defensive measures taken by him in response to what he perceives to be highly prejudicial one-sided coverage of his trial.”
“From Mr. Shkreli’s perspective, he is being targeted.”
The government’s filing, meanwhile, will no doubt draw exactly the kind of attention that prosecutors warned about, which Brafman wryly noted in a final footnote. He suggested they could have brought it up privately, with the judge, before the trial resumed Wednesday.
“Instead, what they have succeeded in doing, is to have created a platform from which millions of people will now certainly read about an issue that barely a handful of people would have otherwise noticed,” he wrote.