Najarian acquitted on all counts

by Jodi Compton

Nearly a year after his indictment, Dr. John Najarian was acquitted Wednesday morning of all criminal charges against him. In the wake of the jury’s decision, Najarian made ambitious plans for his future, and U.S. Attorney David Lillehaug questioned the conduct of the judge who presided over the case.
The jury returned its verdict after about 11 hours of deliberations. The across-the-board innocent verdict made a climactic ending to a trial rarely lacking in drama.
Najarian, the University’s former chief of surgery, was indicted in April 1995 on 18 counts of fraud, embezzlement and tax evasion. In July 1995 additional charges, including obstruction of justice, were added to bring the total to 21 counts against Najarian.
Counts related to the use and sale of ALG, Najarian’s organ transplant drug, were dismissed by U.S. District Judge Richard Kyle on Feb. 13 in what is called a directed verdict — an acquittal by a judge.
While Najarian spoke openly and easily to the press about his victory, a war of words took place in the federal courthouse between the judge who presided over the case and the U.S. Attorney’s office.
When he dismissed the ALG-related counts Feb. 13, Kyle said he had developed “strong feelings about the prosecution” and the ALG counts, but said he wouldn’t comment further at that time because the case was ongoing. But that statement hinted at more to come, and Wednesday he made good on his promise.
“I have some questions as to why we were here at all,” Kyle told the attorneys after the jury delivered its verdict and left the courtroom.
The violations of FDA policy should not have been raised to the level of a criminal trial, Kyle said. “We had a program here in Minnesota, which, for all its shortcomings, was a good program that literally saved thousands of lives,” Kyle told the lawyers. “It should have been run better … but I have serious doubts as to whether that type of program should have been subjected to the level of a criminal proceeding of this kind.”
The Food and Drug Administration treated the program with “benign neglect” for years, Kyle said, adding that the University also shared the blame for ALG program misconduct.
“Quite frankly, I think the University of Minnesota knew what was going on and certainly was the beneficiary of the financial success of that program,” he said.
At the end of his speech, Kyle wished Najarian good luck.
While the judge had never before spoken at length about his feelings regarding the case, his behavior spoke volumes during the proceedings.
Kyle frequently expressed impatience with prosecutors. “Let’s move on, counsel,” was his common refrain during testimony he found irrelevant or repetitive.
In general, he sustained defense objections more frequently than those of the prosecution. At one point, taking offense with a prosecutor’s question, he sustained an objection before defense attorneys even raised one.
Lillehaug said Kyle’s behavior might have influenced the jury’s decision to acquit Najarian on all counts.
“It was tough enough opposing the doctor in the white coat. We didn’t expect to be opposing the judge in the black robe as well,” Lillehaug told reporters. “Anybody who’s ever served on a jury knows the dynamics. You look for cues. The cues certainly weren’t going our way.”
Lillehaug spoke from the law library of the U.S. attorney’s office in the St. Paul federal courthouse. He was flanked by lead prosecutor Hank Shea and Assistant U.S. Attorney Mark Larsen, another prosecutor.
Assistant U.S. Attorney Janet Newberg, who handled the medical testimony, was not present.
It was a difficult decision to criticize Kyle, Lillehaug said. “Federal judges have a lot of power, even over the attorneys in our office. We try cases before them all the time. They have life tenure and long memories.”
But Lillehaug made it clear that Kyle’s treatment of the prosecutors had pushed him beyond fear of reprisal.
“This is the first comment we’ve made. He fired the first shot (on Feb. 13), and he fired the second shot — it was more of a missile — today.”
What Lillehaug said he found most disturbing was that Kyle made public comments on the trial before it was concluded, given that the jury in the case was not sequestered. After Kyle threw out the ALG counts, he was quoted in the press as saying he had “strong feelings about the prosecution.”
At that point, Lillehaug said, prosecutors asked the judge to sequester the jury. But that motion was denied by Kyle, Lillehaug said. Lillehaug also called the judge’s behavior unusual.
“It’s very unusual for a federal judge to make comments in the middle of a trial. That’s not my idea of a federal judge’s role. I’m not saying (it was illegal or unethical). I’m saying it was very unusual. It raised questions about what was really going on in the courtroom,” Lillehaug said.
Lillehaug declined to speculate about why Kyle might have been biased against the prosecution.
Anger was not an apt description for what he was feeling, Lillehaug said, but he came close to saying he took personal offense at the treatment of Shea, Newberg and Larsen.
“We put on the case three lawyers chosen not only for their legal skills, but for their diplomacy,” Lillehaug said.
Lillehaug hinted that Najarian’s legal problems might not be over. He mentioned the possibility of pursuing civil action against the surgeon. Also, no criminal charges have been brought yet over unauthorized cash bonuses Najarian gave to surgery department employees, or about $5,000 in personal phone calls Najarian charged to the University, Lillehaug said.
Meanwhile, up in the seventh-floor room of the St. Paul Federal courthouse assigned to the surgeon’s family and attorneys during the trial, Najarian spoke about his plans for the future.
“There is a chance ALG can be resurrected,” he said of his transplant drug. “The building (for ALG manufacture) rightfully belongs to the Department of Surgery. The equipment is all still there. That’s still an option.”
Furthermore, Najarian indicated he may seek his old teaching position. Under fire from the University, Najarian stepped down as the surgery department chairman in 1993 and as a professor in 1995. Since then, he has continued to practice medicine at the University.
“It’s certainly an option,” Najarian said of trying to regain his teaching position. “I want to be responsible for training students and residents. The field is advancing, and I want to be part of it as long as I can.”
The chairmanship of the Department of Surgery, however, no longer holds any interest for Najarian, he said. “No, I’d never want that again. That part, the administration, I’m happy to leave behind me.”
When the University began proceedings to strip Najarian of tenure in 1995, he resigned. Najarian’s attorney, Peter Thompson, said that he advised Najarian not to fight the proceedings at that time, because it was clear the surgeon would be indicted on criminal charges. Thompson said he didn’t want the doctor to be fighting both battles at once.
It was clear that Najarian was still stung by the University administration’s treatment of him.
“The Univer-sity, I still love,” he said. “I still think of it as my university. (But) the central administration, the general counsel’s office, they’ve done everything they can to convict me. They’ve convicted me in the press, they’ve convicted me on the radio, they found me guilty at every turn.”
In comparison to his comments about the University, Najarian said little about the prosecutors who tried his case. He did say that although Richard Condie, his onetime co-defendant, struck a plea agreement with the U.S. attorney’s office, no agreement was ever offered or sought in his case.
The reason he never asked, Najarian said, was that he was innocent of all charges. “You’d have to lie, to say you’re guilty when you’re not. Would you do that?” Najarian said of that situation.
When the verdict was read, Najarian said, “All I could think was ‘I hope I don’t cry,’ because I wanted to.” His wife, Mignette Najarian, did cry when the verdict was read, as did some of the jurors.
But shortly afterward in the Najarian room, where the surgeon’s sons and Mignette Najarian’s sisters listened to the doctor address the media, the mood was one of elation. Najarian commended his lawyers, Thompson and John Lundquist, on their performance.
Thompson, who received his law degree from the University, characterized the case as a victory of “two Swedes from Minneapolis” against the U.S. attorney’s office and two major national law firms retained by the University.
Najarian praised Lundquist’s knowledge of the medical lore and FDA policy required in defending him on the ALG-related counts.
“This is a man who knows more about the FDA than the FDA,” Najarian said.
Lundquist responded, “That’s a low threshold,” poking fun at Najarian’s former antagonists.
The phone in the Najarian room in the courthouse did not stop ringing during the entire time Najarian spoke to the press. Word of the acquittal spread quickly. One Najarian family member remarked that within less than an hour of the verdict, a well-wisher called from Chicago with congratulations.