Biotech and Pharma

Amid corporate career, Merck CEO exonerated man on death row

Key Points
  • Merck CEO Ken Frazier stepped down from a presidential advisory group Monday, citing a "responsibility to take a stand against intolerance and extremism."
  • He was quickly blasted by President Donald Trump on Twitter.
  • Frazier has a history of taking a stand on issues. He once led a team of volunteer lawyers who exonerated a wrongly accused Alabama man from death row after 19 years.
Merck shares up despite Trump's tweet attack
Merck shares up despite Trump's tweet attack

Merck CEO Ken Frazier made waves Monday morning when he resigned from the president's American Manufacturing Council, citing a "responsibility to take a stand against intolerance and extremism."

It's not the first time Frazier had taken a stand. Two decades ago, he led a team of volunteer lawyers who exonerated a wrongly accused Alabama man from death row after 19 years.

Frazier has since spoken out about capital punishment, writing in 2004 that the experience showed him "firsthand why there can be no fair and consistent application of the death penalty under the current system."

His move Monday is clearly different. It's in the context of his leadership as one of the world's largest pharmaceutical companies. It came after President Donald Trump was seen to equivocate about the violent protest by white supremacists in Charlottesville, Virginia, over the weekend that killed a 32-year-old woman and injured 19 other people.

But the move also comes from a leader in an industry that's been hesitant to step into the crosshairs of Trump, who used high drug prices as a campaign issue and accused the industry of "getting away with murder."

Frazier, the only African-American CEO of a major pharmaceutical company, said he made his decision both as CEO of Merck and "as a matter of personal conscience."

"Our country's strength stems from its diversity and the contributions made by men and women of different faiths, races, sexual orientations and political beliefs," Frazier said in a statement Merck posted on Twitter. "America's leaders must honor our fundamental values by clearly rejecting expressions of hatred, bigotry and group supremacy, which run counter to the American ideal that all people are created equal."

Trump responded swiftly on the same medium. In a tweet an hour later, he said: "Now that Ken Frazier of Merck Pharma has resigned from President's Manufacturing Council, he will have more time to LOWER RIPOFF DRUG PRICES!"

While political tweets have taken chunks out of drug industry valuations in the past, they didn't do so Monday; the IBB, the ETF that tracks the Nasdaq biotechnology index, was up more than 1 percent, along with the rest of the market. Merck's stock was up nearly 1 percent.

Frazier was the only CEO on the manufacturing council to leave it Monday morning after the events in Charlottesville. Elon Musk, CEO of Tesla and Space X, made a similar move in June after Trump said the U.S. will back out of the Paris climate accord, leaving positions on three presidential councils.

A litigator by training, Frazier was working at Philadelphia law firm Drinker Biddle & Reath when he got a call from a friend leading the Death Penalty Representation Project of the American Bar Association, Frazier recounted in a 2004 University of Toledo Law Review article.

It concerned a man named Bo Cochran, on death row for a 1976 shooting death of a grocery store manager in near Birmingham, Alabama. At first, Frazier recalled, he wasn't "immediately moved" to help.

"Fortunately, two junior associates in our firm, Michael Holston and Seamus Duffy, recognized the opportunity to promote justice and urged the firm to accept the representation," Frazier wrote. "And so began one of the most challenging and rewarding cases I have ever handled."
Frazier said he was skeptical, at the outset, of Cochran's innocence.

"What was pretty clear from that record was that Bo had committed a robbery – he had 'held up' a grocery store at gunpoint late in the evening and escaped on foot with about $300," Frazier wrote.

"The store was in a predominantly white neighborhood south of Birmingham, Alabama. Witnesses from inside the store described the robber as a black man. They further testified that the store manager, the son of a local white minister, pursued the robber out of the store. Police, searching for the robbery suspect, converged on a trailer park just north of the store. About twenty minutes later, a gunshot was heard. Bo was arrested within an hour about a mile north of the trailer park with cash from the store and a gun. The store manager was found soon thereafter, fatally shot in the trailer park," Frazier's recount continues.

Based on circumstantial evidence, it might be reasonable to presume the robber had shot the store manager, Frazier wrote. But "incredibly, as my colleagues and I discovered, substantiation in the form of physical or forensic evidence was totally nonexistent."

The only bullet allegedly found near the scene, for instance, didn't match Cochran's gun. And autopsy photos of the victim showed a "highly irregular entry wound;" it appeared, Frazier wrote, that the bullet had been cut out of the victim's body before it was delivered to the coroner.

"Bo Cochran had not just been convicted of capital murder solely on the basis of highly circumstantial evidence," Frazier's account continues. "He was convicted despite evidence suggesting an accidental police shooting and cover-up."

But no available mitigating evidence, Frazier wrote, was presented to the jury by Cochran's court-appointed lawyers, whom he met the day of the trial.

Further, as Frazier and his team wound their way deeper into Alabama's legal system, they found clear evidence of racial discrimination against Cochran, a black man.

"It became obvious that one of the major factors contributing to Bo's conviction centered around the fact that each of his jury trials was distorted when viewed through the lens of race," Frazier wrote. "On each jury that had convicted Bo, minorities were severely underrepresented, a product not of mere chance but of purposeful planning to use peremptory challenges in a racially discriminatory manner."

Frazier and his team proved this not through any sophisticated legal tactics, but, astonishingly, through simply asking the prosecutor who'd exercised the peremptory strikes.

"My impression was that he was a man of sufficient integrity to not lie or shade the facts under oath," Frazier wrote. "For this reason, I made the decision to simply ask him in his deposition about his feelings regarding African-American jurors. His testimony — which would be shocking to many — was that he viewed black jurors as less 'reliable' for the prosecution than white jurors, more likely to identify with a black defendant than white jurors, and more likely to acquit a black defendant than white jurors. When I asked him if he had put these feelings out of his mind in selecting the juries in our case, he testified that he 'couldn't say' that he did."

"Although some maintain the criminal justice system is color-blind, the reality is that race plays a substantial role in the judicial process," Frazier concluded. "Trial lawyers know this, and Bo is living proof of this fact."

Ultimately, after a five-year battle through the legal system, Frazier and his team succeeded.

"Bo did win," Frazier wrote. "He won the right to a new trial where he was acquitted of murder by a jury that was not selected primarily on the basis of race."

The jury acquitted Cochran in less than an hour.

Cochran was freed from prison in 1997. Frazier joined Merck in 1992, and became chairman and CEO in 2011.

"I can only hope this lawyer's tale will inspire other lawyers to volunteer to represent indigent death row inmates," Frazier concluded his 2004 piece. "In any event, I wholeheartedly encourage them to do so because, in the words of Bryan Stevenson, 'people are literally dying for effective representation.'"