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Chapter 7, Part 1: The Right to a Fair Trial

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Chapter 7, Part 1: The Right to a Fair Trial

This is Chapter 7, Part 1 of SMIRK, a serialized memoir of my relationship with “Pharma Bro” Martin Shkreli.

Harper’s Magazine is a quirky relic of New York’s literary past. Founded in 1850, it’s best known for publishing a veritable who’s who of dead or very old (and mostly white) “Great American writers” — people like Mark Twain, J.D. Salinger, Philip Roth, David Foster Wallace, John Steinbeck and Joyce Carol Oates. (Oh, and also Horatio Alger.)

Today the magazine still produces rich and writerly longform journalism (it operates as a nonprofit, which is why it can still do that), but its relevance is a shadow of what it once was. The publication’s circulation is just a fraction of that of two other general interest magazines that vie for the same left-leaning, high-brow audience: The Atlantic and The New Yorker.

A cover from the glory days of Harper’s Magazine. (Getty Images)
A cover from the glory days of Harper’s Magazine. (Getty Images)

Online, it also rarely stands out in the crowd. While its competitors regularly put out splashy features that break through the social media noise and go viral, the same can’t be said for the well-crafted and thoughtful work by Harper’s. There was one massively notable exception, however, in the summer of 2017. That’s when the magazine ran a partial transcript of Martin Shkreli’s jury selection — and the internet devoured it with glee.

As talented as Harper's wordsmiths undoubtedly were, they do not deserve all the credit for the stunning piece. Beat reporters who attended the trial — from the New York Times, Bloomberg, Reuters, the New York Post and CNBC — fought for public access to those sparkly nuggets, which emerged in sidebar discussions out of earshot of the rest of the jury pool. Without those efforts, it’s unlikely the material would have come to light at all, let alone to the more leisurely attention of magazine editors. 

The other key contributor was Martin himself. Only he, it seemed, could inspire such utterly wild reactions from total strangers. Although the trial was about securities fraud, the young pharmaceutical company founder was better known for raising the price of a toxoplasmosis drug, for buying a $2 million album by famed hip hop group the Wu-Tang Clan and treating it irreverently, and for his public antics like trolling journalists (and getting kicked off Twitter for sexually harassing a female journalist).

Numerous potential jurors had seen interviews or read about him and asked to be excused for bias. The result was a string of dialogue that read like satire.

Screen shot of the top of the Harper’s piece about Martin.
Screen shot of the top of the Harper’s piece about Martin.

“I’m aware of the defendant and I hate him,” one potential juror declared. “I think he’s a greedy little man.”

Another said: “The fact that he raised the price of that AIDS medication, like, such an amount of money disgusts me. I don’t think I’ll ever be able to forget that.”

Another said: “When I walked in here today I looked at him, and in my head, that’s a snake — not knowing who he was. I just walked in and looked right at him and that’s a snake.” 

As a kicker, another deadpanned: “And he disrespected the Wu-Tang Clan.” 

Yes, the transcript selection was funny — I still laugh out loud when I read it today. But the ironic humor belied a more troublesome question: Could a person who was famous mostly for being despised, and who was described in hundreds of media accounts as the “most hated man in America,” get a fair trial? 

Martin Shkreli, standing next to his lawyer Marc Agnifilo, outside the Brooklyn federal courthouse in 2017. (Getty Images.)

U.S. District Judge Kiyo Matsumoto, who oversaw Martin’s criminal case, certainly did try extremely hard to preserve that constitutional right. Over the course of a week, she sifted through hundreds of potential jurors with a level of methodical patience that drove observing journalists to near-insanity. 

Every potential juror was asked, not just once, but multiple times over the course of the selection process whether they had read or seen anything about Martin. Without fail, every morning, several hands would go up in the group that had made the cut the day before. And reporters would groan as a fresh batch was brought into the courtroom.

Eventually, Matsumoto, the prosecutors and Martin’s lawyers did find enough Eastern District of New York residents who seemed either open-minded or uninformed enough to serve as jurors or alternates. But would they really never look at any news stories, interviews or social media posts about Martin, as they had been advised, over the duration of a roughly six-week trial? The task sounded hilariously impossible.

Going to trial in general is usually a bad idea for most people accused of crimes in America, from a purely logical perspective. Prosecutors often appear to have more sway with judges than defense lawyers (a lot of judges are former prosecutors), and they usually seem more credible to the media, too. A talented defense lawyer can sometimes persuade jurors of his or her perspective, but acquittals are still very rare. In federal cases, fewer than 1 percent of all criminal defendants are actually acquitted. The vast majority of defendants plead guilty, and of those that are tried before a jury, just 14 percent win.

As bad as those odds sound, they can only be worse for someone who is already convicted many times over of all sorts of bad things in the court of public opinion. True, Martin had expensive and skillful lawyers, which most people accused of crimes are not fortunate enough to get. But even their experience and abilities were quite possibly no match for the spectacular public animosity toward the “Pharma Bro.” 

When I started to get to know Martin in 2016, after I had broken the story of his arrest, one of my first thoughts was that he should probably plead guilty, like about 97 percent of all federal criminal defendants do. As incensed as Martin was at the whole case, and at being woken up rudely by the FBI at 6am and “perp walked,” at least some of the charges didn’t sound that wild to him. He acknowledged to me, for instance…

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SMIRK (audio version)
My experiences uncovering the story of, and falling in love with, Martin Shkreli.