Indictment of Former Glaxo In-House Attorney DismissedMarch 24, 2011
By JP Ellison –
The criminal prosecution of Lauren Stevens, the former in-house counsel for GSK, took another twist yesterday when Judge Titus dismissed her indictment without prejudice. We have previously reported on this prosecution here and here. Judge Titus found that the prosecutors' explanation to the grand jurors of the "advice of counsel" defense was erroneous because the government instructed the grand jurors that advice of counsel was an affirmative defense to be raised at trial. The court said that instruction was erroneous because the advice of counsel defense can negate the intent that must exist for the crimes charged, and thus goes to the question of whether there is probable cause for the charges, a determination that the grand jury must make. The court further ruled that the incorrect instruction raised "grave doubts that the indictment was free from the substantial influence" of the error, which required dismissal of the indictment. Because the court did not find prosecutorial misconduct, the dismissal was without prejudice.
It is not clear what effect this ruling will have on the prosecution. The government's options include, but are not limited to, appealing from the district court's decision; or as the district court allowed, presenting evidence to a new grand jury instructing that grand jury on the advice of counsel defense in accordance with the court's opinion.