Martin Shkreli’s lawyers asked a federal judge to bar journalists from a key part of jury questioning because press coverage of the pharma bro has been “so negative.”
Jury selection for the case against Shkreli, which accuses him of lying to investors and then defrauding a separate company to pay them back, will begin Monday. Judge Kiyo Matsumoto is considering whether to allow a member of the press pool to listen in on small conversations between the judge, attorneys, and the jurors about potential conflicts of interests jurors have in the case. Among the issues discussed at sidebar will inevitably be what the jurors know about Shkreli—discussed on the record, but out of earshot, so as to not prejudice the other jurors.
"[Press coverage] has been so negative that Shkreli's co-defendant cited it as a basis for a severance," or to have separate trials, defense attorney Benjamin Brafman argued. Brafman said that Shkreli is entitled to "explore each juror's potential bias out of the presence of a news reporter."
Brafman wrote to the judge that media reports have said Shkreli "is 'the most hated man in America,' that he is a 'morally bankrupt sociopath,' and that he is himself 'everything that is wrong with capitalism.” The vitriolic statements mean a private questioning is more important, Brafman argued, so that jurors can speak "without fear that their comments will be reported publicly."
Prosecutors suggested a compromise solution, where a reporter would be allowed to attend the questioning, but jurors would not be identified by name.
Kate Bolger, an attorney for Bloomberg argued that the press has a presumptive right to be there. (Bolger sometimes represents The Daily Beast.)
“The Supreme Court has said: The rule is openness. The exception is closure,” Bolger argued.
She added that in similar cases, judges have modified access primarily if jurors might be reluctant to disclose something about themselves—such as their own racist beliefs—in front of a reporter. And if the judge found a similar risk in this case, Bolger said, she would have to list which potential jury questions could elicit such a response.
But his attorneys said the closure was warranted not just because jurors might be reluctant to disclose their own beliefs, but because they might be reluctant to express negative views of Shkreli and interfere with his right to an impartial jury. Brafman also argued that articles about the jury pool’s biases may pop up in other prospective jurors’ social media.
In fact, the defense team argued, public animosity against Shkreli is already so great that his former lawyer Evan Greebel extensively cited media criticism in his request to get a separate trial. (Matsumoto granted the request.)
“Mr. Shkreli live-streamed his life,” Bolger countered. Restricting media access “allows [Shkreli’s team] to control the narrative.”
The dispute came after journalists asked for one press pool member to be allowed to observe the proceedings. Traditionally, such hearings are memorialized by a court reporter, and available to anyone who purchases the transcript. The cost of such reports can be prohibitively expensive.
Yet the intimate discussions with jurors can also hold key insights into the worldview of the jury pool. When The Daily Beast reviewed transcripts of a Muslim man’s terrorism trial last month, the sidebar questioning revealed a deep-seated bias against Muslims.
“Muslims, must of the time they look innocent but they’re not,” one juror told the judge.
Matsumoto is expected to rule before the Monday trial date. what happens Monday? jury selection begins? yes