Several jurors scrawled the acronym for “What the Fuck?” next to the language of Count Five on their instruction booklets in the Martin Shkreli trial.
Two of those jurors who insist on anonymity spoke to me in the backroom of an outer-borough restaurant last Wednesday morning because they believe that if the language had been clarified, Shkreli would have been convicted on five instead of three of the charges in the eight-count indictment—including the top wire-fraud charges, which carried a likely 20-year sentence.
Shkreli declared himself “delighted by the verdict” in a press conference just after it was delivered, calling his trial “a witch hunt of epic proportions. Maybe they found one or two broomsticks, but at the end of the day we’ve been acquitted of the most important charges in this case and I’m delighted to report that.”
At least two of the jurors who delivered that verdict, though, now feel disgusted with him, and remorseful for it.
“We didn’t know until the trial was over that counts five and seven were the top counts, carrying the possibility of the most prison time,” said Juror A.
“It made me ill to be persuaded to vote not guilty on those counts,” says Juror B.
“More than persuaded, I felt bullied into the not-guilty vote” on those counts, says Juror A. “After we voted pretty quickly and unanimously to convict Shkreli on Counts Three, Two, and Six, we came to Count Five. Our first vote on this count was 11-1 to convict.”
“One juror was adamant that the way the judge’s instructions were written, there was no way to convict,” says Juror B. “And the holdout juror would not budge.”
“The reason I am not happy with what happened in this verdict was because we were all tired and we allowed one of the jurors to bully us,” says Juror A. “We didn’t realize it was happening to us until after the verdict was entered. And that’s what has me so upset.”
The jury started deliberating on Monday, July 31. By Wednesday they had reached guilty verdicts on Counts Three and Six, in that order, as suggested by Judge Kiyo Matsumoto. On Thursday morning they reached not guilty verdicts on Counts One, Four, and Two.
On Friday morning the jury voted to convict on Count Eight, a conspiracy charge. Both jurors agree that by mid-afternoon on Friday, Aug. 4, a lack of sleep, and stress of holding the fate of a man’s life in their hands across the hot summer contributed to them switching with nine others to the holdout juror’s stubborn stand of not guilty on Counts Five and Seven, the most serious charges in the indictment.
“My main concern was that when we voted on Count Five—and the related Count Seven—we weren’t really voting on the charges but on one juror’s interpretation of what the language of a clause in a single sentence meant,” says Juror A.
“One little sentence in Element Two of Count Five in the judge’s instruction booklet said Shkreli was guilty if his actions ‘was for the purpose of financial loss or property loss.’ The holdout juror interpreted that to mean we had to prove that Shkreli’s motive was to cause ‘harm’ to other people. That juror changed the language from ‘loss’ to ‘harm’ and ‘hurt’ and then it was repeated around the room. But that’s not how it reads. It says ‘financial loss or property loss.’”
Jurors A and B say the holdout juror could not see beyond that sentence.
“That juror insisted that meant that the prosecutors had to prove beyond a reasonable doubt that Shkreli meant to cause ‘hurt’ or ‘harm’ to the people he was swindling,” says Juror A. “Many of us disagreed and thought that he only had to cause financial loss or property loss.”
Why not ask Judge Kiyo Matsumoto for clarification?
“It would not have helped to ask,” says Juror B.
“Because when we had asked the judge earlier in deliberations for a clarification of the meaning of ‘fraudulent intent’ in Count Three, I believe, the judge brought us all out into the courtroom in front of the defense, prosecutors, and the reporters, and the public and refused to clarify anything,” says Juror A.
“She was a very fair and personable judge,” says Juror B. “So it was shocking when all she would do is refer us to a specific page in her instruction booklet which we had all read over and over and over.”
“She would not interpret it into common language that we could better understand,” says Juror A. “So when the issue of the single sentence in Count Five came up we didn’t think her reaction was going to be any different a second time.”
“We let that deter us from asking her any other questions,” says Juror B.
So that reluctance to ask Matsumoto for clarification helped determine the outcome of this major trial?
“Yes,” says Juror B.
“One of the reasons I wanted to speak to a reporter was because I was so upset after the trial that I started researching if it was possible to change a verdict,” says Juror A. “It’s not. Double jeopardy came up immediately. I thought that applied only to murder. Not true. But what I did learn about was something called juror’s rights and jury nullification which means that if something does not make sense to the common person on a jury that a jury could ignore the judge’s instructions or the law. If I had known about jury nullification I would have pushed the jury to nullify that one sentence in the judge’s instructions.”
Did the judge ever tell the jury that jury nullification was a jury’s option?
“No,” said jurors A and B in unison.
Given the original 11-1 guilty vote, Juror A believes that without that single juror’s misinterpretation of one sentence in the judge’s instructions, Shkreli would have been convicted on the top charges, Count Five and the related Count Seven and facing 20 years in a Federal pen.
“He got off on those counts on a technicality,” says Juror B. “Not because we thought he was not guilty.”
“A loophole,” says Juror A. “Even that holdout juror agreed that the evidence was clearly there that he was guilty of Counts Five and Seven but argued that we could not prove that Shkreli’s motive was to harm or hurt when it reads ‘to cause financial or property loss.’”
That’s like saying a bank robber is only guilty of a stick-up if his intent was to harm Chase Manhattan rather than enrich himself.
Both jurors said they and other jurors did not sleep on Thursday night, agonizing over their decision. The next day, Friday, Aug. 4, a judicial syndrome floated in on a fog of fatigue.
“I was exhausted,” says Juror A.
“Me too,” says Juror B.
“Everyone knew that the holdout juror was never going to budge and had started to convince everyone to switch to a not guilty vote,” says Juror A.
“Someone mentioned the movie ‘12 Angry Men,’” says Juror B.
“We’d been at this for almost six weeks,” says Juror A. “We were all anxious and tired.”
“Everybody wanted to go home,” Juror B says. “That ‘Friday jury syndrome’ is a reality. So by 2:30 p.m. we all voted not guilty.”
“Several of us wrote WTF next to the single sentence in Count Five,” says Juror A. “I suggested we wait until Monday to hand over the verdict, so that we might reconsider when we were rested. No one wanted to do that.”
Juror B says, “I was feeling ill, dazed.”
“When we handed in the verdicts I wanted to vomit,” says Juror A.
Both say it was even worse when they went back into the courtroom where Judge Matsumoto read aloud the verdicts.
“I was extremely conflicted,” says Juror A. “I thought I had voted according to the way the law was written. In the courtroom I stared at the floor.”
“I looked right at Shkreli,” says Juror B. “I was angry, very conflicted, also.”
“I was horrified when I heard Shkreli whoop after he was found not guilty on Count Five and Seven,” says Juror A.
“He did a fist pump,” said Juror B. “That made me sick. We’d just found a guilty man not guilty on those counts.”
When the jury was polled after the verdict, Jurors A and B did not voice any objection. “I hesitated in my mind because I felt like 11 of us had capitulated,” Juror A says.
Both said they knew nothing of Shkreli before the trial and that he often made friendly eye contact during the trial.
“I didn’t have an opinion of him as a person, just of his crimes,” says Juror B. “Until after the trial when he acted so cocky and arrogant. And then I researched him. I felt sick.”
“I was horrified when I watched his behavior on TV news after the trial,” says Juror A. “I was just as disappointed with the goody-two-shoes way the jury deliberations were painted by some of the jurors who spoke to the press. It was not contentious, that’s true. It was mostly agreeable. That Shkreli was guilty of everything but the three conspiracy charges. But for one holdout juror…”
“Who was not even the foreman,” says Juror B.
“The same juror was one of the ones who spoke to the press but never said that we all thought Martin Shkreli was guilty of Counts Five and Seven but cleared him on a loophole, a misinterpretation of language in a single element in one count,” says Juror A. “I felt like people must be thinking this was a truly stupid jury. But most of us are college educated.”
As we spoke, the morning news was filled with reports of Martin Shkreli’s sudden life in jail after his $5 million bail was revoked last week because he tweeted a $5,000 bounty on a strand of Hillary Clinton’s hair, with an attached follicle, which the Secret Service, the prosecutors, and Judge Matsumoto interpreted as a hostile act. Shkreli said it was a joke, just like he’d joked about the Federal judiciary and penal system.
There was no way Shkreli was laughing in general population of the notorious Metropolitan Detention Center in Brooklyn that is a warehouse of violent gang members, suspected terrorists, and assorted local killers.
When asked about Shkreli’s bail being revoked, Juror A and Juror B smiled.
“That’s karma,” said Juror B. “He’s where he belongs. This man needs to be seriously punished with some serious time in a real prison.”
“Poetic justice,” said Juror A. “I will be waiting to see what kind of sentence Judge Matsumoto gives Martin Shkreli next year.”