Lit Daily got an interesting request the other day—to pull a link in one of my columns to an opinion by a federal judge dismissing an insider trading case.

The opinion exonerated the lawyer's client—one of multiple defendants, and whose name I didn't mention in my story. But the lawyer wanted the link to the opinion pulled nonetheless “to mitigate the damages caused by such a document returning in a Google search for [her client's] name.”

We declined the request—it's an opinion by a federal judge, after all. But it points to a wider issue: When prosecutors swing and miss by bringing ill-conceived complaints, the damages can linger.

The feds' latest fail came Monday, when prosecutors in the Middle District of Louisiana withdrew criminal charges against a prominent scientist who was accused of stealing (of all things) a computer software model of the lower Mississippi River delta.

In a motion that amounted to the legal equivalent of “um, never mind,” prosecutors wrote that after securing a grand jury indictment against Tulane University's Dr. Ehab Meselhe on May 29, they were backing down. “[B]ased on extensive additional investigation, the United States has concluded that it cannot meet its burden of proof in this matter.”

It's good that the feds didn't needlessly drag out the proceedings once it was (glaringly) obvious they had a losing hand—but that's not to say this is an instance of no harm, no foul. Accusations follow people, even if they're innocent.    

As for the “extensive additional investigation”? That should have happened before law enforcement stormed Meselhe's house in Lafayette, Louisiana and took him away in handcuffs and shackles without so much as a subpoena or target letter hinting at a problem. 

“I was a federal prosecutor for 20 years in New Orleans, and I've never seen anything like this,” said Meselhe's lawyer, Michael Magner of Jones Walker.

Charges were also dropped against Kelin Hu, a more junior computer scientist who was represented by Baton Rouge solo Steven James Moore.

Meselhe is an environmental scientist and civil engineer who had been working for the non-profit Water Institute of the Gulf on a hydrosimulation computer program called the Basin Wide Model. The model is intended to predict different coastal restoration scenarios for the Mississippi Delta.

It's not as esoteric as it sounds. Post Hurricane Katrina, this is big business. As the indictment stated, the model “was essential to maintaining the Water Institute's competitiveness for consulting contracts worth millions of dollars.”

Meselhe resigned from the institute on October 31, 2018 to take a full-time job as a professor at Tulane. “He thought it was a more or less amicable departure,” Magner said. “They talked about collaborating and working together in the future.” 

Meselhe recruited Hu, who followed him to Tulane in early 2019.

The indictment, which was signed by U.S. Attorney Brandon Fremin and Assistant U.S. Attorney Brian Frazier, claims that the pair conspired to steal the Basin Wide Model by taking a copy of it with them when they left—a violation of Title 18 United States Code Section 1832 (a)(5).

So … a few problems. 

First of all, Meselhe argued that the Basin Wide Model is not even owned by the Water Institute—it's public property and cannot be a trade secret. 

The government in court papers poo-pooed the argument, and then immediately “dispatched investigators to interview members of the U.S. Army Corps of Engineers on this question,” Magner wrote on Meselhe's behalf. “To say that these interviews disfavor the government's case is an understatement.”

Members of the Corps who were interviewed were clear. As one senior project manager put it, the models “were owned by the Corps. Once it's paid for, the Corps puts it in the domain, and it's public. … The Corps owns those models.” 

Another engineer said everyone in the scientific community thought it was “crazy” that Meselhe and Hu had been arrested, because “[n]o one thought of 'these things' as proprietary.”

Prosecutors tried arguing that they didn't actually have to prove the existence of a trade secret, provided they showed that the defendants believed they were taking a trade secret. But as Magner wrote, “[I]f the entire scientific community in which Dr. Meselhe worked did not believe that the Basin Wide Model was a trade secret, how could the government argue with any credibility that Dr. Meselhe did believe that?”

But that wasn't even the biggest problem with the case. The Water Institute was apparently … let's call it selective … about the emails it initially shared with the feds. 

The government insisted that Meselhe “was told in no uncertain terms that he could not take the Basin Wide Model with him.”

But Magner countered that his client “told that Water Institute in an email that he planned to take the Basin Wide Model with him, and the Water Institute did not object.”

And he pointed to emails, such as a message where Meselhe wrote that he was taking the model and the head of the institute responded, “I agree with you that this should be collaborative and done such that we can continue working together on all fronts.”

A few days later, the head of the institute in an email to colleagues wrote, “FYI – I never agreed or disagreed with [Meselhe's] representations about the status of the models as he outlines below. Also I never agreed that he could take any models with him when he left the Institute. I think it's worth considering what he sets out here (whether we agree or disagree with his assessment) as well as our views on the status of other models.”

That's a far cry from being “told in no uncertain terms that he could not take the Basin Wide Model with him.”

The feds at least had the grace to quickly drop the case once they realized the alleged trade secret wasn't secret, nor was it stolen. 

“It really was the craziest case I've ever seen,” Magner said