Judge Tosses Indictment Against Glaxo Lawyer

GREENBELT, Md. (CN) - The government must craft a new indictment against a former attorney for GlaxoSmithKline after a federal judge threw out the original obstructions case on the grounds that prosecutors misinformed the grand jury that indicted her on a relevant matter of law.

Lauren Stevens, former vice president and association general counsel for the pharmaceutical giant, was indicted in November 2010 for concealing information from the U.S. Food and Drug Administration; the agency was investigating the drugmaker's alleged promotion of the antidepressant drug Wellbutrin for off-label uses, such as treating obesity.

A jury trial was expected to begin on April 5, 2011.

But U.S. District Judge Roger W. Titus found that federal prosecutors gave "erroneous and prejudicial" legal advice during the grand jury proceeding.

In the months leading up to her indictment, Stevens' primary defense to the charges against her was that she relied in good faith on the advice of both in-house counsel at Glaxo, and outside counsel provided by the firm of King & Spalding in responding to the FDA. Such reliance, she said, negated the requisite intent to be charged with either obstructing the investigation or making false statements.

During the grand jury proceeding, a juror had asked whether it was relevant that Sevens relied on advice of other lawyers when she responded to the FDA's investigation.

"The grand juror's question was not just any question, but rather was much akin to asking about an elephant in the room," Titus wrote in his ruling. "The incorrect answer either substantially influenced the decision to indict or, at the very least, creates grave doubt as to that decision."

Prosecutors improperly instructed the grand jury that the question was not an issue that the grand jury needed to consider as it considered whether there was probably cause for an indictment, Titus said.

"A proper instruction would have informed the grand jurors that if Stevens relied in good faith on the advice of counsel, after fully disclosing to counsel all relevant facts, then she would lack wrongful intent to violate the law and could not be indicted for the crimes charges in the proposed indictment," he wrote.

Titus added, however, that he did not believe this misinformation was a case of willful prosecutorial misconduct.

"This is not a case in which the government attempted to affirmatively mislead the grand jury to obtain an indictment - rather it is a case in which prosecutors simply misinstructed the grand jury on the law," he wrote.

"Under these circumstances, dismissal of the indictment is necessary to allay the court's grave doubts about the grand jury's decision to indict, but dismissal with prejudice is wholly inappropriate," he continued, giving prosecutors the opportunity to seek a new indictment.

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