NECC Defendants Want Grand Jury Instructions

By Walter F. Roche Jr.

Charging that it was highly likely that grand jurors were misled, the two main defendants in the New England Compounding Center criminal case are asking a federal judge to force prosecutors to disclose the instructions given to those jurors during secret 2014 proceedings.
"There is a substantial likelihood and a grave danger that the grand jury based its decision on inaccurate and misleading instructions," the attorneys for Barry Cadden and Glenn Chin stated in a motion filed this week in U.S. District Court in Boston, Mass.
They are asking U.S. District Judge Richard Stearns to force federal prosecutors to disclose the instructions they gave to the grand jury that charged Cadden and Chin with 25 counts of second degree murder, along with racketeering and mail fraud charges. Cadden was an NECC owner and chief pharmacist while Chin was a supervising pharmacist for the defunct Framingham, Mass. firm.
The motion is the second attempt by defense lawyers to attack a key element in the case, the use of a private industry standard as a measuring stick for the operation of a company producing sterile drugs for human use.
The defense lawyers are charging that the grand jury may have been led to believe that violating the industry standard was the equivalent of violating a federal criminal law.
According to the motion and an accompanying 11-page brief all but 16 of the 97 counts against Cadden hinge on the sterility standard set by the U.S. Pharmacopeia.
The motion acknowledges that Stearns already has denied a dismissal motion based on the same issue, but they noted that Stearns said in his ruling that the jurors in the actual trial would not be shown the challenged wording in the indictment.
The indictment states that the USP standards "were meant to prevent harm, including death to patients that could result from the non-sterility of drugs."
That wording, the memorandum states, could easily lead a grand juror to believe that violating the USP standard was the same as violating federal law.
Chin and Cadden, who are set to go on trial Jan. 5, were among 14 owners or employees of NECC indicted by a federal grand jury in late 2014 stemming from the investigation of a deadly fungal meningitis outbreak that eventually killed 77 of the 778 patients sickened.
State and federal regulators concluded that it was fungus laden sterile drugs shipped from NECC's in 2012 that cause the deadly outbreak.
Cadden and Chin will be tried separately, 10 others are scheduled for trial on April 12, 2017. Two have pled guilty to substantially reduced charges and face sentencing before Stearns in November.
The filing by Chin and Cadden comes on the fourth anniversary of the first public disclosure of the outbreak following the death of patients treated at a Nashville, Tenn. clinic.
In their motion this week, lawyers Bruce Singal for Cadden and Stephen Weymouth for Chin, said that if the judge decided not to give them a copy of the grand jury instructions then, as an alternative, he could review them himself.
"The defendants would suffer severe prejudice if forced to defend a charge that was not properly reviewed by the grand jury," the memo concludes.
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