Kyle Rittenhouse Trial: Requesting Drone Video Suggests Possible Hung Jury?

Generally, the more questions a jury asks during deliberation, the more likely a hung jury. The more time a jury deliberates, the more likely a hung jury.

Kyle Rittenhouse’s claim of self-defense may have just been complicated by the juror’s request to see the drone videotape which may indicate self-defense requiring an acquittal or, provocation requiring a guilty verdict. The jury has previously asked for copies of the jury instructions. Typically, video evidence is replayed to the jury in open court, but, the decision is up to the judge.

Either way, it may not be a good sign for the prosecution or the defense, if either expected a quick verdict.

Furthermore, when lesser included offenses are added after evidence has been submitted, it may complicate matters for one or more jurors who may have been viewing the evidence under the charges they were given at the beginning of the case. It’s as if they introduced a new character to a movie in the last 5 minutes. The jury may want to re-visit evidence in light of the lesser included and the jury instructions, both of which will take some time. And, they may want to take their time with the evidence given it is a hotly contested case.

No doubt, there is much discussion on the elements of self-defense and whether provocation occurred to eliminate Rittenhouse’s claim of self-defense. It may be a one-or-the other decision for each juror. Keep in mind, all 12 jurors have to agree to a verdict of not guilty or guilty as to each count, otherwise, it is a hung jury and the case could be re-tried.

Simply my opinion, what say you?


Elizabeth Holmes Trial: Prosecution Witness A Gift to the Defense (Read Eisenman’s email)

Today, in the Elizabeth Holmes fraud trial, the defense may have been given a gift. Turns out, a prosecution witness, Alan Eisenman, whose testimony was necessary to prove count 3 of the indictment when he invested $99K in Theranos in 2013 relying upon the allegedly fraudulent representations of Holmes, may have just been discredited by the defense.

How?

By Eisenman’s own written words…. in an email he sent to the prosecution team in 2018.

Read Eisenman’s entire email

Specifically, the last sentence: “You know I am a faithful part of your team, and will do all I can to help your case”.

Ouch.

Why do his words matter?

It goes to the credibility of a witness.

It shows, arguably, that Eisenman has a bias and/or an interest in the outcome of the trial. Either way, the defense could use Eisenman’s own words to discredit Eisenman’s entire testimony and the jury or a juror could potentially throw out Count 3 of the indictment.

Yes, a juror may always assume a witness has an interest in the outcome, but, to see the following words…”You know I am a faithful part of your team, and will do all I can to help your case” leaves little doubt as to Eisenman’s intention which shows bias and could place doubt on his testimony. Another words, did he testify truthfully or is saying whatever to incriminate Holmes because he wants her convicted for losing his money?

Even with an expected response, “I told the truth in my testimony” from Eisenman on re-direct, his email certainly colors his testimony and veracity.

Furthermore, unlike the other investors, Mr. Eisenman is the only investor so far, who has relied solely on the representations of Holmes and the claims she made (or omitted) during their quarterly phone calls. He never visited the Theranos lab, never got a blood test demo, and never saw any financials. His testimony was a clear path to Holmes culpability. While 4 of the 5 other investor counts do not appear to have a clear path to Holmes. For instance, witnesses have testified that investment decisions, including the De Voss family investment of $99,999,984 and the $5,9999.997 investment made by Daniel Mosley, were not made solely upon the representations of Holmes, but rather, also, upon the advise of their personal advisers, other investors and or the Fortune article written by Roger Parloff. If so, it could raise possible reasonable doubt to defeat those investor fraud counts.

Let’s see what happens on re-direct of Eisenman tomorrow.

Simply my opinion, what say you?

Here’s my legal analysis on the Holmes trial today on KPIX 5 CBS San Francisco.


Elizabeth Holmes Trial: Disregard For Patients Most Damaging Evidence

The most damaging evidence against Elizabeth Holmes is the testimony from the patients who received false test results. The jury has already heard from one patient about the devastating impact of receiving a false test result indicating, incorrectly, that she had a miscarriage. Two more patients will likely testify this week about the impact of receiving false tests from Holmes’ company Theranos. One patient received a false prostate cancer test result and the other a false HIV positive test result, both of which, are devastating news to anyone and their loved ones.

Yet, the resulting impact on patients lives from faulty or potentially faulty tests results from her technology does not seem to have been a concern of Elizabeth Holmes, at least from the testimony the jury has heard so far. Maybe, the defense will illustrate her concern in their case. Otherwise, I doubt the “failed startup” defense will work for the jury. When you jeopardize or gamble with people’s lives, jurors take notice, no matter how revolutionary the technology or the vision.

BTW, four of the twelve counts in the Holmes indictment relate to defrauding patients. One patient count will likely be dismissed due to exclusion of witness testimony for late discovery reasons . However, each count, if convicted, carries a maximum of 20 years in prison.

Simply my opinion, what say you?


Elizabeth Holmes Trial: Roger Parloff Fortune Story May Sink Some Investor Counts

In June 2014, Roger Parloff, a journalist, wrote a glowing cover story in Fortune praising Elizabeth Holmes and her blood-testing company Theranos. The Fortune cover story and potentially Parloff’s testimony may be a problem for the prosecution in the US v. Elizabeth Holmes felony wire fraud trial currently underway in San Jose California.

Why?

Well, if the jury finds that an investor relied upon representations made by others regarding Theranos, namely, the statements and representations made by Roger Parloff in the Fortune cover story, prior to the investor’s investment in Theranos, then, the jury may find reasonable doubt as to some of the investor fraud counts.

Another words, it could be argued that the investors relied upon and decided to invest in Theranos because of the now allegedly “materially false and fraudulent representations” made by Parloff‘s story not by Holmes. Or, in the alternative, it was the “representations” of both Holmes and Parloff’s story that induced or caused the investors to invest in Theranos. Given the testimony of investors David Mosley and Lisa Peterson who both testified that they relied upon the Fortune cover story, in addition to the claims made by Holmes, prior to investing in Theranos, counts 1, 7 and 8 of the Holmes indictment may be in jeopardy, specifically, the conspiracy to defraud investors, the $99,999,984 investment from the De Voss family per Lisa Peterson, and the $5,999,997 investment from Mosley into Theranos in October 2014, respectively.

Interestingly, it does not appear that either Mosley or Peterson sued Fortune, Parloff or Holmes for the alleged fraudulent representations. However, Parloff and Fortune, did publish a retraction to the Holmes cover story, “How Theranos Misled Me” in 2015. Prior to Parloff’s journalist career, he was a criminal litigator in Manhattan.

BTW, Parloff’s upcoming testimony in the Holmes trial may be limited subject to this Monday’s motion in limine hearing at 10 am. For example, the Fortune story, parts thereof, or Parloff’s opinion/findings may be excluded from his testimony. The Court may also revisit Magistrate Cousins ruling denying the defense’s request to release of Parloff’s notes for his cover story, presumably sought, to uncover, the exact words or statements made or not made by Holmes.

Simply my opinion, what say you?

BTW, I am providing legal analysis on the Holmes trial. Here are my interviews on CBS 5 KPIX San Francisco and CBS 5.


Elizabeth Holmes Trial: John Carreyrou an Expert or Fact Witness?

Today, Magistrate Cousins of the United States District Court in San Jose California granted WSJ reporter John Carreyrou’s first amendment right to cover the Elizabeth Holmes federal wire fraud trial. Cousins found Carreyrou to be an expert witness instead of a fact witness. If he had been deemed a fact witness, Carreyrou would have been prevented from covering or attending the trial as his name appears on the defenses witness list, and witnesses are typically excluded from court. Interestingly, he has not yet been subpoened to testify.

Expert witnesses are allowed to attend trial and hear the testimony of other witnesses to render an opinion when they testify. Think of a coroner giving an opinion as to the cause of death or an accident reconstructionist listening to the testimony of a police officer. Mr. Carreyrou wrote a 2015 WSJ article that blew the whistle and penned a best selling book, Bad Blood, based on his investigation into Theranos and Holmes.

Curious, will the Holmes defense appeal Magistrate Cousins decision finding Carreyrou an expert witness? Or, object when Carreyrou testifies or offers an opinion?

Does Carreyrou qualify as an expert witness?

Federal Rule of Evidence 702 allows for expert testimony if it will ‘assist the trier of fact to understand the evidence or to determine a fact in issue’ by providing opinions on ‘scientific, technical, or other specialized knowledge’.(See jury instruction 2.13 here)

Even if Carreyrou is found to have scientific, technical or specialized knowledge, could his “findings” (investigative info) be considered too prejudicial and excluded (or limited), like the detrimental findings of Centers for Medicare Services after their investigation of Theranos, which the trial judge excluded from testimony today as too prejudicial?

Another words, one could assert, would the Carreyrou testimony be helpful (probative) to the trier of fact (the jury) or would it be too prejudicial to the defense?

And as the jury will be instructed before deliberations,

“Such opinion testimony should be judged like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness’s education and experience, the reasons given for the opinion, and all the other evidence in the case.” (See jury instruction 2.13).

Keep in mind, it is the jury who decides what the facts are, weighs the credibility of witnesses and determines what weight to give the testimony of a witness, no matter…the bad blood.

Simply my opinion, what say you?