“Sending a message” is a phrase heard with regularity in the legal system, whether from judges at sentence or prosecutors at arrest.  Sometimes the message is about not harming others or you will be caught, prosecuted and punished.  Other times, the message isn’t nearly as clear, or as proper.  Still, it’s a message.

Walter Olson writes about such a at Cato @ Liberty, one that may lack the panache of blood and guts that tends to get blood boiling, but one that’s particularly pernicious.

The Stevens case arose after the Food and Drug Administration investigated GSK’s marketing of the drug Wellbutrin. Lawyers, responding on behalf of the drugmaker, failed to furnish all the information the FDA considered itself entitled to, and federal prosecutors from the U.S. Department of Justice proceeded to “forage through confidential files” (as the judge later put it) in search of some sort of criminality to pin on Stevens, the team’s leader.

In her defense, Stevens said she had at all times relied in good faith on information provided her by company employees and had consulted and followed other lawyers’ advice on doubtful issues. Not good enough: the feds proceeded to charge her with six counts, including making false statements, obstructing justice, and concealing documents.

What makes this particularly troubling is the dynamic that drives financial and corporate criminal law investigations, where decisions are made by committee, invariably risk averse and perceived by all to be only about business (read, “money”) rather than right or wrong.  A group of people whose butts are not on the line want to know how much it will cost to make the problem go away, happy to throw the beloved and soon to be martyred former corporate lawyer or executive under the bus.

Say you’re an oddball in corporate America, a person with a few scruples and the guts to say “no” occasionally.  Whispering in the ear of the board members are some specialists working at a thousand lawyer firm, still bearing the stink of their last job at the Department of Justice, that they must capitulate, cooperate, get on their knees and beg the government for mercy.  There’s no other way. No one ever wins.

Then there’s someone who never sucked on the government teet saying,

but we did nothing wrong. Nothing. We must stand up to the demands of prosecutors who are clueless about our corporation, our industry, and who want to dictate corporate decisionmaking.  This is the time to take a stand.

Outside counsel shudders in fear.  Board members cower in the corner.  Accountants crunch the numbers.

Lauren Stevens, former house counsel at SmithKlineGlaxo, showed resolve.  She did her due diligence and arrived at the conclusion that displeased the government.  She said no. She conducted an in-house investigation and concluded that there was no smoking gun proving her employer a raging criminal enterprise.  

Prosecutors faced turned dark red.  No one says no to them.  No one.  Time to send a message.

The flimsiness of the DOJ’s case appears to have disturbed Judge [Roger] Titus, a law-and-order-oriented jurist who had never ordered a bench acquittal in his seven years as a federal judge. The confidential documents on Stevens’s work, he wrote, “show a studied, thoughtful analysis of an extremely broad request” from the FDA and were based on “good faith,” not an attempt to assist a client in fraud.

Judge Titus refused to let the case go to the jury.  What surprises people is that harsh law-and-order judges tend to get particularly angry with the government when they conclude that a prosecution is complete garbage.  Prosecutions like that make judges feel dirty for otherwise loving the government too much, and when the case goes far enough over the line, prosecutors see the snarl that is almost always directed only at the defense table.  But don’t get too teary eyed about it, as a case has to be so god-awful-bad, out of the ballpark garbage, to get a rise. 

So Judge Titus sent a message of his own:

Titus said Stevens “should never have been prosecuted” and that allowing the case to go forward to a jury “would be a miscarriage of justice.”

Though the message seems clear enough on the surface, it somehow failed to sink in.

After the stunning dismissal, the U.S. Department of Justice [via no less a personage than Lanny Breuer, chief of the criminal division, to a meeting of corporate lawyers] was quite unapologetic, a top official suggesting that its prosecutors intended to do nothing differently in the future. And unfortunately, there are few incentives for them to learn any lessons.

How could the message fail to come across loud and clear?  It’s a trick question.  The message was, indeed, heard, but it wasn’t Judge Titus’ message.  It was Breuer’s.

Lauren Stevens lost her job, was prosecuted and went to trial, wondering every day whether she would end up wearing a jumpsuit at Club Fed.  She was disgraced and vilified.  It cost a bundle.  And likely destroyed her life.  Whether she can recover from this prosecution has yet to be seen.  And she won.

Sure, there a couple of prosecutors whose cheek stings a bit from the smack, at least for a few minutes. But they got their paycheck every two weeks and went home to dinner with their families every day during the prosecution and trial.  On the day of dismissal, they left court sad and, after a beer, had meat loaf for dinner (I’m just guessing about this part). 

Corporate counsel got the message.  Even when you do nothing wrong, you lose.  When the government comes a’calling, turn around, bend over and let the government have its way with you.  No in-house lawyer wants to sacrifice his life, his family on the alter of “justice.” 

Message sent.  Message received.  Lauren Stevens was just doing her job, with courage and integrity.  The message is that when the government wants to destroy the life of an innocent person, it will.  She can beat the rap, but she can’t beat the ride.  That’s the message.