Beards Grow Long During Wait for Jury Verdict in Opioid Trial

(Bloomberg) -- It’s been almost three weeks since a Boston jury began deliberating in the racketeering trial of Insys Therapeutics Inc. executives over the promotion of their opioid drug, with nary a peep from the panel.

In that time a defense lawyer has grown almost a full beard, one of the defendants says she’s out of money and can’t afford to stay near the courthouse anymore, and observers are left speculating about what’s going on in the jury room high above Boston Harbor.

“The truth is nobody knows what it means, because jury deliberations are a black box,” said David Schumacher, a former federal health prosecutor of health-care-fraud cases who is now a partner at Hooper Lundy & Bookman PC. “It could mean nothing more than that the jury is carefully weighing the evidence.”

And they do have a lot of evidence to go through. The trial of Insys founder and former Chief Executive Officer John Kapoor and four others took 10 weeks, featured 39 witnesses and more than 100 exhibits.

They’re accused of funneling hundreds of thousands of dollars to doctors nationwide through a sham speaker’s program. Kapoor is the first pharmaceutical CEO prosecuted in connection with the national opioid crisis.

Prosecutors claim the executives exploited consumers to illegally widen the market for Subsys and turn the highly addictive painkiller into a blockbuster drug. They’re accused of running a speaker’s program that the government claims was a vehicle for bribing doctors to prescribe Subsys more often and at higher dosages.

They’re also accused of duping insurers into covering the wave of Subsys prescriptions generated by the scheme.

The 12 jurors will be back at it on Monday, after deliberating for half-a-day Thursday and taking Friday off last week. They’ve been on a loose schedule, choosing to meet only two days during one of the three weeks since closing arguments, and normally are done by 4 p.m.

As they left the courthouse Thursday, lawyers for Kapoor and former stripper-turned-Insys-sales manager Sunrise Lee seemed upbeat.

That’s despite the fact Lee claims she can’t afford to stay in Boston any longer.

Her lawyer had asked the judge to let her receive the jury’s verdict by video at the federal courthouse in Grand Rapids, Michigan, near her home.

The judge has told the defendants they must appear in court within 10 minutes of an announcement that a verdict has been reached.

“The ongoing cost of continuing to maintain a hotel residence within 10 minutes of the courthouse during the week has become a financial hardship,” Lee’s attorney Peter Horstmann told the judge.

Lee’s 10-year-old son “is enduring the stress of her continued absence,” while another son is about to graduate from high school, he said.

Prosecutors oppose the idea of letting her go to Michigan. The judge hasn’t ruled on the request yet.

While the lengthy wait might be tough for Lee to bear, it’s not that unusual in complicated cases. It took a Chicago jury 12 days of deliberations in 2007 before convicting former Hollinger International Chief Executive Officer Conrad Black of fraud and obstruction The jury acquitted him of nine other charges -- although that panel worked longer hours than the Insys jury. The Chicago jury usually deliberated from 9 a.m. to around 4:30 p.m., leaving early only on Fridays.

More on Black here

Former Tyco International CEO Dennis Kozlowski spent 12 days waiting on a jury, before a judge declared a mistrial. It took another panel, after a second trial, 11 days to find him guilty of looting Tyco of almost $100 million.

“The conventional wisdom is that lengthy jury deliberations favor the defense, but that is not always the case,” Schumacher said.

The Massachusetts U.S. Attorney’s office declined to comment on the lengthy deliberations.

One of Kapoor’s attorneys, Aaron Katz, joked with other lawyers that he had decided not to shave until after a verdict, a tradition more often followed by the Boston Bruins players during National Hockey League playoffs than by court officers.

Former Insys regional sales manager Joseph Rowan is the only defendant who has come to court every day during the deliberations, and remained until the jury left. He sometimes sits alone in the empty courtroom with his head down on a table.

During the trial, defense lawyers cast the government’s own witnesses as the real culprits behind a sales scheme that made them rich as the company’s stock price climbed.

Assistant U.S. Attorney Fred Wyshak, who had the last word during closing arguments on April 5, said the jury had “the smoking gun” before them -- an internal Insys memo comparing the numbers of Insys prescriptions doctors wrote with speaking fees they received, titled “ROI -- Return on Investment.”

If the jury is deadlocked, Schumacher said he would have expected them to have told the judge by now. Or, the long deliberations could signal a single juror is holding out for a not guilty -- or a guilty -- verdict. The jury may also be divided over whether all, or some, of the defendants are guilty.

“Everyone should appreciate that the jurors are taking their oath seriously and appear to be carefully weighing the evidence against each defendant,” Schumacher said.

The case is U.S. v. Kapoor, 16-cr-10343, U.S. District Court, District of Massachusetts (Boston).

©2019 Bloomberg L.P.