Tuesday, May 10, 2011
Hon. Roger Titus (nominated by George W. Bush) provides a moving statement in granting an acquittal of Lauren Stevens:
"I take my responsibility seriously. I practiced law for a long time and made a number of Rule 29 motions that -- or in the state system equivalent of them. I don't have a very good track record with those motions. In my seven and a half years as a jurist I have never granted one. There is, however, always a first."
The judge noted how attorney-client privilege material had been used in trial as a result of the prosecution obtaining them via a claim under the crime-fraud exception. He notes -
"With the 20/20 vision of hindsight, and that's always the place to be in terms of wisdom, the Massachusetts Order was an unfortunate one, because I now have benefitted from a trial in which these documents that were ordered produced were paraded in front of me and the prosecutors were permitted to forage through confidential files to support an argument for criminality of the conduct of the defendant.
"What those records demonstrate to the Court is, first of all, that access should not have been granted to them in them in the first place. . . But they also show that this was a client that was not engaged to assist a client to perpetrate a crime or fraud. Instead, the privileged documents in this case show a studied, thoughtful analysis of an extremely broad request from the Food and Drug Administration and an enormous effort to assemble information and respond on behalf of the client."
"The responses that were given by the defendant in this case may not have been perfect; they may not have satisfied the FDA. They were, however, sent to the FDA in the course of her bona fide legal respresentation of a client and in good faith reliance of both external and internal lawyers for GlaxoSmithKline."
The court notes near the end of the Order:
"I conclude on the basis of the record before me that only with a jaundiced eye and with an inference of guilt that's inconsistent with the presumption of innocence could a reasonable jury ever convict this defendant."
"There is an enormous potential for abuse in allowing prosecution of an attorney for the giving of legal advice. I conclude that the defendant in this case should never have been prosecuted and she should be permitted to resume her career."
Transcript of Hearing - Download 110510STEVENS (hat tip to Ronald Levine- Post & Schell)