Since I had not committed any crime, you would think hearing the jury return that verdict at the end of my trial a week ago would give me faith in our criminal justice system. But that’s not how I feel. Let me explain why.
I took the entrepreneurial plunge in 1997 when I started Vascular Solutions. Over the last 20 years, I’ve led the company in developing over 100 new medical devices that are used worldwide to improve the lives of patients suffering from vascular disease. In the process, we’ve created more than 500 well-paying American jobs and never received so much as a warning letter from the Food and Drug Administration (FDA).
But over the past five years, the Department of Justice has tried to convict me of a felony that could have put me in prison for years. My “crime”? The prosecutors thought it was “off-label” for our salespeople to talk with physicians about using just one version of just one of our more than 100 medical devices to treat perforator varicose veins rather than saphenous varicose veins.
They believed this was a felony even though our device was FDA-cleared for treating all varicose veins, over two-thirds of our salespeople never sold even one unit of it, sales constituted only 0.1 percent of our total sales and not a single patient was harmed.
Why would federal prosecutors spend five years pursuing something so wrongheaded and so insignificant?
It all started when one of our salesmen became upset he didn’t receive a promotion. So he quit and filed a baseless complaint with the U.S. attorney’s office in San Antonio, alleging a multitude of offenses to try to justify a $20 million claim. Simply by hiring a lawyer and making wild accusations, this former employee with an ax to grind became entitled under the law to receive 20 percent of whatever money the government could “recover” from Vascular Solutions.
The government lawyers reviewed his allegations and chose to pursue just one. I offered to meet with them to correct their misinformation, but two days before that scheduled meeting, they called my lawyer and canceled it. And they never would reschedule. So before deciding to bring criminal charges, these prosecutors never heard my side of the story.
Instead, they subpoenaed over 2 million pages of our documents and interviewed over 60 customers and employees. In the process, they received evidence that conflicted with the story told by that money-motivated former employee. But instead of changing their conclusions to fit the evidence, these prosecutors engaged in obscene tactics to try to change the evidence.
In conversation with our lawyers, they called conflicting statements by witnesses “a line of sh*t.” They referred to one employee as “a poor f***er” who needed to return “on bended knee” to “fix” his testimony. They told a female employee to think about what would happen to her firstborn son if she were indicted because she refused to “cooperate.” And by “fix” and “cooperate,” I mean retract their prior testimony and support the government’s case.
Why would prosecutors act this way? The answer is pretty simple. They started with bad information, jumped to a conclusion, and then, in these prosecutors’ own words, they had “invested their blood, sweat and tears” in this case and “needed a body” in return.
You think prosecutors search for the truth? The Department of Justice rewards its prosecutors for convictions, not exonerations. The government agent who conducted our investigation said “it’s not my job to make the defense’s argument” when interviewing witnesses. A senior government lawyer publicly boasted that our case was “hand-picked” by prosecutors who “went on the offensive” because they had such a strong case. Search for the truth be damned.
To defend against these false criminal charges, we hired lawyers — lots of lawyers. All told, we hired 10 different law firms, with over 100 lawyers billing us a combined $25 million. I can’t imagine the millions of taxpayer dollars wasted by these prosecutors.
Why so many lawyers? The prosecutors’ strategy was to make it painful for us by dragging so many of our employees into this case. Their strategy required us to hire a different law firm to represent each group of employees. And because the prosecutors chose to file these charges in San Antonio instead of in Minnesota, we were required to hire local lawyers in Texas as well.
In the end, after I endured four weeks sitting in a San Antonio courtroom while still running Vascular Solutions in Minnesota, the jury rejected each and every allegation. And that was without hearing from any of our 20 witnesses, since we made the decision to rest immediately after the government finished its case. So the government’s own witnesses proved our innocence — simply stunning.
These prosecutors likely just shrugged off the jury’s verdict, because prosecutors rarely get disciplined and almost never get fired for their mistakes. And unlike virtually everyone else in this country, prosecutors can’t be sued for violating the rules that apply to their job — they have immunity by law.
As bad as my experience has been, I know that others have suffered far worse at the hands of prosecutors in a culture that accepts and encourages unjust tactics. I also know that I am lucky to be backed by a financially successful company that provided me with the money I needed to fight and win.
If not for my fortunate circumstances, I shudder to think what might have happened: the destruction of my company, going broke paying lawyers and sitting in a federal prison today. When prosecutors can use false criminal charges to destroy everyone except the few wealthy and unbroken defendants like me, then virtually everyone is in danger — even if you’ve done nothing wrong.
So, how do I feel today?
I feel vindicated by the outcome, but outraged by the process. Above the entrance to the Department of Justice in Washington is engraved the motto “To render every man his due.” Ultimately, the jury rendered me the verdict I was due — not guilty. But the process was its own punishment — years of injustice fighting false criminal charges. That process, I was not due.
And what about these prosecutors? Who will render them what they are due for their malicious false prosecution? That motto above the Department of Justice entrance needs to apply to those inside the building, not just us on the outside. Our two U.S. senators from Minnesota, both of whom sit on the Senate Judiciary Committee, should see to it that these prosecutors are fired and that changes are made at the Department of Justice.
So that what happened to me doesn’t happen to you.
Howard Root is chief executive officer of Vascular Solutions Inc. in Maple Grove.