Law Review: Former U.S. prosecutor now on the defense side in federal probe

July 24, 2011|By Chris Mondics, Inquirer Staff Writer
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  • Michael A. Schwartz is defending FBI agent Mary Beth Kepner, involved in the probe of the late U.S. Sen. Ted Stevens.
  • Michael A. Schwartz is defending FBI agent Mary Beth Kepner, involved in the probe of the late U.S. Sen. Ted Stevens. (CLEM MURRAY / Staff Photographer )
  • CLEM MURRAY / Staff Photographer

As a former assistant U.S. attorney in Philadelphia, Michael A. Schwartz was acutely aware of the enormous power a prosecutor wields. But it wasn't until he left the Justice Department and became a white-collar defense lawyer that he truly grasped how a government case can take a terribly wrong turn.

Schwartz, a partner at Center City-based Pepper Hamilton L.L.P., defends pharmaceutical executives and other business figures in criminal investigations that can involve enormous gray areas.

What might in the eyes of an aggressive prosecutor be an indictable offense, say for a pricing decision on a Medicaid-reimbursed pharmaceutical, just as easily could be seen as an innocent business judgment by the executive making the call.

Story continues below.

"You are dealing with people . . . who are highly educated, who go to work each day saying that I am going to do the right thing, and occasionally, like all of us, may make mistakes and then come under government scrutiny," said Schwartz, a Yale Law School graduate. "All of a sudden, you are out there in a world where you would never think that what you did on a day-to-day basis would be thought to be criminal."

How odd, then, that Schwartz now finds himself defending a government official - in the face of a government investigation.

It turns out that one of his white-collar clients - and a pro bono one at that - is a member of a prosecution team that blew up its own case by failing to disclose exculpatory evidence to a defense team.

She and other members of the team now are enmeshed in two government investigations aimed at determining whether both Justice Department procedure and criminal laws were breached.

The story is a cautionary tale about how a procedurally flawed investigation can destroy what seemed to be an otherwise solid criminal case, while wreaking havoc in the lives of the prosecution-team members who brought it.

It shows, too, how government officials themselves can feel the lash of a relentless prosecution - itself an injustice sometimes.

But first, a little background.

Schwartz's client is FBI agent Mary Beth Kepner, who after her graduation from the FBI training academy in Quantico, Va., was stationed in the bureau's Philadelphia office in the mid-1990s before transferring to Alaska - first to the Juneau office, then to Anchorage.

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