Benjamin Brafman, right, outside Brooklyn federal court with his client Martin Shkreli on July 27. ()
On Aug. 4, former pharmaceutical executive Martin Shkreli, who faced eight counts in a securities fraud trial that lasted more than a month, was found guilty of three felony counts.
But Benjamin Brafman, Shkreli’s lead counsel and an attorney known for taking on famous—and, at times, infamous—clients like mob boss Salvatore “Sammy the Bull” Gravano, Sean Combs and former International Monetary Fund managing director Dominique Strauss-Kahn, says he’s as proud of the outcome of the Shkreli case as he would be in a case in which his client won total acquittal.
“The whole world was expecting a slam dunk, across the board conviction of Shkreli not because of the facts of the case, but because of the baggage he brought to the table, where people resented him for one reason or another,” Brafman said.
Shkreli did not testify in the trial, but made his thoughts about the prosecution and reporters covering the case known via social media and through his webcam. At one point in the trial, Shkreli visited the courtroom that was being used as an overflow room to hold an impromptu press gaggle.
Shkreli was found guilty of two counts of securities fraud and one count of conspiracy to commit securities fraud. He is accused of defrauding investors in two hedge funds he created, MSMB Capital Management and MSMB Healthcare, and misappropriating $11 million in assets from Retrophin Inc., another company he formed, to pay them back.
Brafman said he was especially pleased with the fact that the jury of seven women and five men found Shkreli not guilty of count seven of the indictment, a wire fraud conspiracy charge related to the alleged misappropriation of Retrophin’s assets.
With that charge off of his client, Brafman said, sentencing guidelines for Shkreli fall from eight years to less than one.
Brafman & Associates attorneys Marc Agnifilo, Jacob Kaplan, Andrea Zellan and Teny Geragos also worked on the case.
Assistant U.S. attorneys Alixandra Smith, Jacquelyn Kasulis and Girish Srinivasan prosecuted the case. Eastern District Judge Kiyo Matsumoto presided.
The Law Journal sat down with Brafman on Monday at his office in midtown Manhattan to discuss the case, what it was like working on behalf of a client that is loathed by many, how observing the Sabbath each week kept him centered and what lies ahead in the appeals process.
Following are excerpts from the interview, which have been edited and condensed for length and clarity.
On the jury in the case:
“Jury selection in this case exposed a bias unlike anything I have ever seen, even in cases where I was representing really notorious people and the charges were far more sinister. So picking a fair jury, I think Judge Matsumoto helped us a great deal by allowing us to eliminate people who openly expressed their disdain for Mr. Shkreli. I think the jurors in this case carefully analyzed the evidence and did not allow the prejudice that surrounds Mr. Shkreli to push them into a conviction mode.”
On the prosecution’s performance:
“The government spent an enormous amount of time preparing for the case. I think the three prosecutors who tried the case did a very good job. They’re very good lawyers.
If you ask me what the prosecution lacked, that we were able to exploit, I think they lacked truthful testimony by all the substantive witness and their presentation also lacked some degree of passion, whereas we focused on passion.
I as a trial lawyer believe very strongly that the side that has real passion on it is in the hunt to win, even if that defendant happens to be a Martin Shkreli.”
On working with Shkreli and dealing with his public persona:
“Martin is a very interesting young man. He’s brilliant, so you have to accept the fact that you’re dealing with someone who is brilliant and on a sheer intellectual baseline he’s a lot smarter than I am in many areas. He doesn’t have the seasoning and the experience that I do with respect to how trials are conducted and what may or may not be helpful. It’s hard to tell someone who has often been incredibly outspoken, incredibly controversial: ‘Just stop. Turn off the news cycle and ignore it.’ It’s very hard for anyone to ignore the pounding that you take on a regular basis, much of it inaccurate, and not respond. The average person’s instinct is either to respond, or have their lawyer respond, and I made the decision early on if I start respond[ing] to these remarks by reporters, it will never stop.”
“I have told many, many celebrities who are much more powerful and high-strung than Martin that if you’re going to survive a heart attack, the best chance you have is … listening to a cardiologist. You might not survive, even with a good cardiologist, but the odds improve substantially if you try and take some advice. I said to Martin: ‘Make believe that you’re having a heart attack and I’m your cardiologist. I may not keep you alive but the best shot you have of remaining alive after this circus leaves town is to listen to me.’”
On the rigors of working a high-profile criminal trials:
“A really good trial lawyer can’t sleep during trial, doesn’t eat properly during trial, loses weight during trial and requires a tremendous amount of physical and emotional stamina.
You are in a zone and you really have to focus. It’s impossible to know what needs to be done at any given moment. A lot of it is experience and instinct and just a feel for the work. I said in my summation that it’s harder than being an oncologist in many ways. I don’t have CAT scans and blood work and MRIs, I have my guts and my instincts and my knowledge of the facts and the law.”