[Ip-health] US attorney target after refusing to slow down prosecution of drug company

[Gaelle Krikorian]

US Attorney Became Target After Rebuffing Justice Dept.
By Amy Goldstein and Carrie Johnson
The Washington Post

     Wednesday 01 August 2007

     The night before the government secured a guilty plea from the
manufacturer of the addictive painkiller OxyContin, a senior Justice
Department official called the U.S. attorney handling the case and,
at the behest of an executive for the drugmaker, urged him to slow
down, the prosecutor told the Senate Judiciary Committee yesterday.

     John L. Brownlee, the U.S. attorney in Roanoke, testified that
he was at home the evening of Oct. 24 when he received the call on
his cellphone from Michael J. Elston, then chief of staff to the
deputy attorney general and one of the Justice aides involved in the
removal of nine U.S. attorneys last year.

     Brownlee settled the case anyway. Eight days later, his name
appeared on a list compiled by Elston of prosecutors that officials
had suggested be fired.

     Brownlee ultimately kept his job. But as Attorney General
Alberto R. Gonzales confronts withering criticism over the
dismissals, the episode in the OxyContin case provides fresh evidence
of efforts by senior officials in the department's headquarters to
sway the work of U.S. attorneys' offices.

     Justice Department officials said it was not unusual for senior
members to weigh in on major criminal cases, and a spokesman, Dean
Boyd, said the department "encourages healthy internal debate and
discussion on complex cases like this one."

     Several former federal prosecutors also said that defense
attorneys routinely try to appeal to high-ranking department
officials in an effort to derail prosecutions. Still, Brownlee and
other former prosecutors said nighttime calls such as Elston's,
coming just hours before the end of a long, complex case, are
unorthodox, particularly when the department's criminal division
already has signed off on a case.

     Brownlee said the head of the criminal division had authorized
him that afternoon to execute the plea agreement. In his testimony
and in an interview afterward, Brownlee recounted that he asked
Elston whether he was calling for his boss, Deputy Attorney General
Paul J. McNulty, and Elston replied, "No."

     "I told him to leave it alone, to go away," Brownlee said, "and
he did."

     But Elston's attorney, Robert N. Driscoll, said his client had
telephoned Brownlee at the direction of McNulty, who that evening had
received an appeal for more time by Mary Jo White, a defense lawyer
representing an executive for OxyContin's manufacturer, Purdue
Pharma. White is a former Manhattan U.S. attorney.

     A Justice official, who spoke about internal deliberations on
the condition of anonymity, also said McNulty had asked his chief of
staff to place the call.

     Elston was McNulty's top aide until he stepped down in June amid
the controversy over the prosecutors' firings. McNulty also has
resigned, effective Friday, becoming the sixth senior aide to
Gonzales involved in the controversy to leave the department in
recent months.

     Brownlee - who testified that he had not received negative
performance reviews - said that he was "concerned" about his name
appearing on the firing list and that he spoke to McNulty about it.
"He assured me that Mr. Elston was a good man," Brownlee said. "I had
my own views."

     In addition to assembling the Nov. 1 list of five prosecutors,
including Brownlee, who were recommended for dismissal, Elston also
played a controversial role in trying to quell the political uproar
after the firings took place. Four of those prosecutors have told
Congress that Elston warned them that Gonzales might criticize them
in public if they spoke out about the circumstances of their removal.

     Yesterday, Driscoll said on Elston's behalf that there was no
connection between Brownlee's appearance on a firing list and the
fact he had settled the case the next day in spite of Elston's call
for more time. Driscoll said that the Nov. 1 list reflected
recommendations his client had received from others in the
administration, not his own views.

     The OxyContin case arose from a four-year investigation into the
marketing of a powerful drug that was, according to federal drug
officials, a direct or partial cause of 146 deaths in 2000 and 2001
and possibly in 318 others during that period.

     After the settlement agreement last fall, prosecutors in May
announced a $635 million plea agreement with Purdue Pharma. Under its
terms, the company entered a guilty plea to a single felony count,
and three former officials pleaded guilty to misdemeanor charges. The
terms were criticized as too lenient, both by consumer advocates,
such as Public Citizen's Health Research Group, and Arlen Specter
(Pa.), the Senate Judiciary Committee's ranking Republican.

     Two former Justice Department officials from Democratic
administrations and one from a Republican administration said that
headquarters officials sometimes called U.S. attorneys' offices to
relay concerns from defense lawyers, particularly in sensitive cases
where defendants had made elaborate presentations to avert
indictment. Two weeks before the plea agreement, lawyers for Purdue
Pharma and the former executives met with criminal division
officials, including a McNulty aide, people involved in the case said.

     Others said Elston's timing and message were atypical.
"Normally, there's a lot of deference given to U.S. attorneys in
matters of timing," said Michael R. Bromwich, a former Justice
Department inspector general. "The kind of micromanagement that this
suggests could easily have a chilling effect in some circumstances."