The finger pointing between “pharma-bro” Martin Shkreli and his former lawyer has reached the point where they want separate trials. The feud was so fiery in a Brooklyn federal courtroom on Friday, in fact, that the prosecutor on the case accused both men of faking it in an effort to make the charges easier to beat.
“The defendants in this case have ramped up the animosity in order to achieve a severance,” charged Assistant U.S. Attorney Alixandra Smith.
Shkreli was indicted on charges related to an alleged securities fraud scheme in December 2015. Evan Greebel, the outside counsel for Shkreli’s companies, was charged in the same indictment on a conspiracy charge for his work with Shkreli. But now, both men say then intend to blame the other for the crimes, as they each face up to 20 years in prison.
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Shkreli gained widespread notoriety in September 2015 when his drug company, Turing Pharmaceuticals, increased the price of a lifesaving drug from $13.50 to $750 per pill. (He later lowered the price, but did not apologize.) In the years since, Shkreli has become somewhat of a pop culture villain, getting suspended from Twitter after harassing a reporter and buying a $2 million single-copy Wu Tang Clan album that only he can listen to.
At a nearly three-hour hearing on Friday, Shkreli’s attorneys said that they make seek a so-called “reliance on counsel” defense at trial, as Shkreli watched on in a casual black polo shirt. The reliance on counsel defense means that Shkreli would argue he followed his lawyer’s advice, unaware of any potentially illegal doings.
“What we worry is that the defense attorney will get up in opening and say, ‘Mr. Shkreli was lawyered up to the hilt,’” Smith said, requesting a pre-trial hearing on the admissibility of that defense. “And that is so far beyond what they are actually allowed to argue.”
It’s the very conflict over that argument that makes the lawyer and client’s cases so hard to try together, defense attorneys for both parties said.
“Purely on legal grounds, it is impossible to reconcile the defenses in this case,” Shkreli attorney Ben Brafman argued.
If the jury were to accept Greebel’s defense that Shkreli was a lying egomaniac who purposely misled him, they would have to find Shkreli guilty, Brafman said. Likewise, if they accepted Shkreli’s defense that he was merely relying on his lawyer’s advice, they’d have to find the attorney guilty.
Both defendants would then focus on mucking up the other’s image for the jury, acting as a type of extra prosecutor in the case, the defense lawyers claimed.
“This is of a rare sort of case where the defendants will go at each other’s throats,” said Reed Brodsky, an attorney for Greebel. “I promise your honor, we will open in this courtroom and say that Mr. Shkreli is a liar and a deceiver.”
“We are going to get up, and we are going to say that Mr. Shkreli is guilty,” he added.
Brodsky alleged that because of Greebel’s intimate relationship with Shkreli’s work, his client has evidence of even more crimes than charged in the indictment and would bring it up at trial. And every cross-examination, opening statement, and witness list would be longer because of the mutual effort to smear each other, he said.
“When a co-defendant faces an extra prosecutor in the room, that is inherent prejudice,” Brodsky argued. “We will be duty-bound to destroy Mr. Shkreli’s credibility.”
U.S. District Judge Kiyo Matsumoto did not immediately issue a ruling from the bench.
But even if she rules against the separation, both defense attorneys appeared to be laying the groundwork for a post-conviction appeal. One of Shkreli’s attorneys even argued that in this “highly unusual situation,” a former attorney’s status as co-defendant—and Greebel’s plan to attack Shkreli’s credibility—could even have a chilling effect on Shkreli’s ability to testify in his own defense.
Greebel’s attorneys, on the other hand, argued that Shkreli’s notoriety as a mega-douche would harm their client’s ability for a fair trial. But Shkreli’s counsel politely pushed back, saying he’s been with Shkreli when people stopped him for selfies.
“The notoriety works both ways,” Brafman said. “Some people think that he is going to find the cure for certain dreadful diseases.”
