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Martin Shkreli’s “media strategy” during his fraud trial has been so extreme that it’s worth taking a closer look at it — to learn what not to do. In fact, on Wednesday, given his antics, the judge issued a partial gag order preventing him from speaking about the case in or around the courthouse, including to reporters, for fear of exposing jurors to his opinions. All he seems to have done is upset the judge. Not a good strategy.
The proximate cause of the order was Shkreli’s stunt on Friday, June 30, when he went into the Brooklyn, New York, federal courthouse’s overflow room, set up for reporters and others, and began whining. Whining to reporters is not astute litigation PR. Shkreli, 34, called his Brooklyn-based prosecutors “the junior varsity” compared to their Manhattan counterparts — a sore point given the rivalry between the two districts.
“I think the world blames me for almost everything,” Shkreli complained. “They blame me for capitalism.” He argued that an alleged victim who had testified had actually made money on her investment. And, yet, he said, “The case is going well.” His lawyer Benjamin Brafman yanked him from the room after about five minutes.
“I was shocked that there were these comments,” U.S. District Judge Kiyo Matsumoto said at the hearing yesterday, according to Bloomberg.
Prosecutors had sought a full-blown gag order, which Brafman argued against because his client has the right to defend himself under the First Amendment, he said. The lawyer also made the bizarre charge that a reporter with a vendetta had lured Shkreli (pictured, left, with Brafman) into the overflow room.
Matsumoto decided Shkreli would be allowed to continue to speak out on social media and the like, which, apparently is his right, but, which, definitely is a mistake. Not only can his words be used against him in the trial, which began June 26, they are not benefiting his public reputation. In addition to the courthouse rant, he apparently gave an on-camera interview. His lawyer should be his spokesman.
Bloomberg Executive Editor Winnie O’Kelley said on Bloomberg TV that Shkreli has “been very brash from the beginning,” noting that his heated comments got him banned from Twitter. He has reportedly been tweeting under a new handle, @BLMBro.
Some of the coverage makes clear that some experts believe Shkreli’s tactic is to purposefully taint the jury, allowing him to argue later he didn’t get a fair trial.
There may be a more innocent explanation. “Often a significant challenge for even the most capable trial lawyers is the self-obsessed client who cannot follow important behavioral and trial decorum directions,” defense lawyer Jacob Frenkel, who isn’t involved in the case, noted in a recent Forbes column.
Shkreli earned the nickname “Pharma Bro” for jacking up drug prices, especially of a treatment for HIV patients, Daraprim, by 5,000 percent in 2015. Yet that is not at issue in the trial. Instead, Shkreli is accused of defrauding investors in his hedge funds and of using about $11 million in assets of his drug company to pay off unrelated debts, including those of the hedge funds, in a sort of Ponzi scheme.
“The challenge out of the box for Mr. Brafman is to persuade the jury to view the evidence with an open mind and from the perspective that Mr. Shkreli may not be as sinister as much of the public perceives him,” writes Frenkel, of Dickinson Wright.
Shkreli’s approach to media relations hasn’t made Brafman’s job any easier.
— Thom Weidlich
Photo Credit: JStone/Shutterstock
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