Theranos Trial: Juror Questionnaires Likely Public

Are juror questionnaires public or confidential?

Well, it looks like juror questionnaires are mostly public information with limited redaction, at the court’s discretion, for juror privacy concerns. But, it is up to each juror to raise their objection to the release of their private info.

As reported, a media coalition has filed a motion to obtain the juror questionnaires in the US v. Elizabeth Holmes blood testing wire fraud trial currently underway in San Jose California. The Media Coalition includes ABC, NBC, NY Times, Washington Post, The Daily Mail, Dow Jones, AP, and Bloomberg. They seek the unsealing of the juror questionnaires of the 12 seated jurors and the 5 alternate jurors.

Although the juror questionnaire states that the questionnaire is confidential, (see Holmes juror questionnaire pg. 2 here) most Courts have said otherwise. It seems that the public and the media have a first amendment right to obtain jury selection info which includes written juror questionnaires. Questionnaires are no different than the public information received during the voir dire stage of trial where jurors are asked questions in an open public courtroom. Both of which, become part of the public record for the proceeding.

Why does the public and the media have a right to access juror questionnaires?

The public and media have a right to hold the justice system accountable, to ensure the trustworthiness and integrity of the jury selection process.

However, the judge may redact information from the questionnaires if the jurors privacy concerns outweigh the public interest. For instance, if the info could lead to harassment, intimidation or harm to a juror or was “deeply personal matters” as in the Chandra Levy 2012 DC circuit Appellate Court decision releasing redacted questionnaires. (See other state and circuit decisions here).

My guess, the court will likely release the juror questionnaires subject to limited redaction.

However, keep in mind, juror misconduct, if prejudicial, or improper jury selection process, Holmes. like Scott Peterson or any defendant may have grounds to appeal a conviction.

Simply my opinion, what say you?

Update: 10/13/21 A hearing on the media’s motion to release questionnaires to be heard in 5 weeks, date tbd. The judge requested both sides to file briefs for the judge to consider before he decides whether to release the juror questionnaires.

Update: 11/19/21 Judge decided to keep questionnaires under seal until the verdict and will release questionnaires without jurors names, addresses and things jurors requested to be private.

Scott Peterson Retrial Likely Juror Misconduct Says Legal Analyst

Scott Peterson will likely get a new trial and be re-tried for the 2002 murders of Laci and Conner Peterson if…

The judge finds a substantial likelihood of juror bias against Peterson or his case by juror #7, Richelle Nice.

Why a new trial?

Prejudicial juror misconduct by Juror #7, Richelle Nice.

What is the alleged prejudicial juror misconduct?…

The Peterson Defense alleges that Peterson is entitled to a new trial because juror #7, Richelle Nice committed prejudicial juror misconduct during the jury selection process, thus, denying Peterson of the right to a fair trial and an impartial jury.

Specifically, the Defense alleges that the misconduct by Ms. Nice includes her failure to disclose that she had been a victim of a crime resulting from a prior domestic violence incident, while she was pregnant, with her ex-boyfriend approximately 13 months prior to the Peterson case. She also allegedly failed to disclose that she had also been involved in prior litigation regarding a restraining order she obtained against her ex-boyfriend’s girlfriend. All of which, the defense alleges closely mirrors the Peterson case and amounts to improper bias by Ms. Nice against Peterson or Peterson’s case, thus, denying Peterson of his constitutional right to a fair trial and an impartial jury.

Juror misconduct is prejudicial if…

Juror misconduct is deemed prejudicial when the Court finds that the defendant has been denied a fair trial. A defendant has a right to a fair trial by unbiased, impartial jurors. (US Constitution 6th & 14th amendments, CA Constitution Art. 1 Section 16).

An impartial juror is one who decides the case solely on the evidence presented at trial. Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors, it is settled that a conviction cannot stand if even a single juror has been improperly influenced. (People v. Holloway (1990) 150 Cal. 3d 1098, 1112). If a defendant’s right to a fair trial has been violated, the defendant is entitled to a new trial pursuant to California Evidence Code 1181.

The purpose of juror questionnaires and voir dire examinations of potential jurors is to uncover possible juror bias, known and unknown, to allow counsel to dismiss a juror for cause or preemptory challenge. However, “a juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct”. (People v. Hitchings, 6 Cal. 4th at 110-111.)

What is juror bias?

Juror bias includes actual bias and implied bias.

For example, actual bias occurs when a juror states, in voir dire, that they cannot sit on a murder case because their uncle had been murdered. Or, a juror states in voir dire, they cannot vote for the death penalty because they are opposed to the death penalty. In each instance, the juror cannot be fair and impartial because of their actual bias, thus, depriving a defendant of their right to an impartial jury and a fair trial.

While implied bias is determined by the Court, after a showing by the defense of possible misconduct and an evidentiary hearing where witnesses and evidence are presented to prove or not prove juror misconduct.

If bias, whether actual or implied, is found by the Court, the defendant’s conviction will be overturned and the defendant’s motion for a new trial will be granted. The defendant can be re-tried for the charged offenses.

Who determines whether prejudicial juror misconduct occurred?

The judge.

The determination of prejudicial juror misconduct rests with the Court. Thus, it is up to Judge Anne-Christine Massullo of the San Mateo County Superior Court to weigh the credibility of witnesses, determine the facts and to decide whether prejudicial juror misconduct occurred to warrant a new trial for Peterson. If the Judge decides not to grant Peterson a new trial, the defense will have to show the Judge abused her discretion, given the entire court record, a difficult standard to overcome. 

What is the standard of proof required?

The standard of proof required to show prejudicial juror misconduct is not a heightened standard of proof like strict scrutiny or even reasonable doubt. It simply requires a finding of substantial likelihood of prejudicial juror misconduct.

Upon a showing of juror misconduct, the court has a duty to conduct a reasonable inquiry into allegations of juror misconduct. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two ways. First, the court can find bias if the extraneous material (outside the courtroom) judged objectively is inherently and substantially likely to have influenced the juror. (People v. Holloway, supra, 50 Cal. 3d at pp 1110-1112). Or, upon review of the nature of the misconduct (failure to disclose and denial) and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. (In re Hitchings, supra, 6 Cal. 4th at p. 121) The conviction must be set aside if the court finds prejudice under either test.   

Keep in mind, a defendant is not entitled to an evidentiary hearing as a matter of right. A hearing should only be held to resolve material, disputed issues of fact. (People v Avila (2006) 38 Cal. 4th 491, 604). The trial court has the discretion whether to conduct an evidentiary hearing to determine the truth of the allegations. (People v. Hedgecock (1990) 51 Cal. 3d 395, 415).

However, in Peterson’s case, the California Supreme Court has already found a showing of prejudicial misconduct and has ordered the San Mateo Superior Court  to conduct an evidentiary hearing (order to show cause) as stated, “The Secretary of the Department of Corrections and Rehabilitation is ordered to show cause in the Superior Court of California, County of San Mateo, [. . .] why the relief prayed for should not be granted on the ground that Juror No. 7 committed prejudicial misconduct by not disclosing her prior involvement with other legal proceedings, including but not limited to being the victim of a crime.”

At the evidentiary hearing… sometime in the near future, Ms. Nice, and potentially other witnesses will be called to testify as the presumption of misconduct is a rebuttable presumption. Both the defense and the prosecution will have an opportunity to ask questions as well as present documentary evidence in support or in opposition to a claim of juror misconduct. If Ms. Nice fails to testify or claims the 5th amendment right against self-incrimination, then, the Court can make a determination based on other evidence presented i.e., prior domestic violence police report with Nice and ex-boyfriend, copy of the restraining order, Nice’s responses to juror questionnaire, etc.

BTW, it’s not likely the Court will consider Ms. Nice’s letters to Peterson post-conviction as it is Ms. Nice’s bias at the time of jury selection that is relevant.  

The failure of a juror to disclose they have been a victim of a crime during voir dire alone has been found to constitute prejudicial misconduct. (People v. Diaz, (1984) 152 Cal. App. 3d 926, 931-juror failed to disclose attacked at knife-point). Ms. Nice’s alleged failures can be argued to have far exceeded the Diaz standard.

Even though, Ms. Nice has claimed that her prior life experiences did not influence her decision to convict Peterson, when she claimed, “When I filled out that questionnaire, my situation never came into my mind because it was not similar at all.”. Or, even when she implicitly denied any improper bias, when she claimed that she “did not lie to get on this trial to fry Scott. That was not my intention.”, Ms. Nice’s intention, her denial of actual bias, is not the only test. Bias can also be implied.

Further, judges are not required to take juror’s statements at face value nor are they permitted to assume the worst of a juror. A judge is still required to conduct a reasonable inquiry into the juror’s ability (or inability) to perform his/her duties. While Ms. Nice may defeat a claim of actual bias, the Court may still find implied bias. The test for juror bias is an objective standard not a subjective standard.  

Another words, even if Ms. Nice subjectively denies her prior experiences influenced her decision to convict Peterson, would a reasonable juror be influenced by these prior experiences? Could a juror be impartial (objective) with the life experiences of Ms. Nice? Or, does Ms. Nice’s life experiences mirror the Peterson case so as to imply a bias against Peterson or his case?     

The answer… and the decision to grant a new trial rest solely with Judge Massullo.

Simply my opinion, what say you?

Case Update:    

This Wednesday, October 6, 2021, Judge Massullo of San Mateo Superior Court will set a date for the re-sentencing of Scott Peterson to life without the possibility of parole. Peterson’s initial death penalty sentence was overturned last year by the California Supreme Court due to the improper dismissal of jurors. Peterson to be re-sentenced in person Dec 8, 2021 10 am by Judge Massullo.

Here’s my interview on San Francisco’s KRON4 News on 10/8/21 re possible juror misconduct in Peterson murder trial.

Elizabeth Holmes Theranos Trial: Lab Director Testimony Helps Defense Case

Elizabeth Holmes is currently on trial in federal district court in San Jose California. She is charged, as alleged, on 8 counts of wire fraud and 2 counts of conspiracy to commit wire fraud while she was CEO of Theranos, a revolutionary blood testing company. Each count of fraud carries a potential sentence of up to 20 years in prison.

Although prior witnesses in the Theranos trial have testified to the inaccuracy and unreliability of the Theranos testing technology, including former Theranos Lab Director Dr. Adam Rosendorff, the cross examination of Dr. Rosendorff has shed some doubt on the Government’s fraud case against Elizabeth Holmes.

Specifically, the below testimony could be argued to show Holmes’ lack of knowledge of the fraud and/or provide evidence to support a good faith defense, either of which, could support a not guilty or hung jury verdict.  

Here are some of the highlights I noted as I watched Dr. Rosendorff’s testimony: (I’m providing legal analysis on the case)

1              Accuracy tests (proficiency testing) were done on the Theranos Edison testing device.

2.            Dr. Rosendorff developed SOPs for proficiency testing and he signed off on the proficiency testing reports which tested the accuracy of the Edison and other testing devices.

3.            Proficiency testing was done weekly and separate quality control testing was done daily.

4.            4 out of 5 Theranos proficiency tests met CLIA regulations.

5.            Dr. Rosendorff admitted he had “ultimate responsibility” for accuracy of tests and responsibility for labs. (Per emails presented, discussions were mostly with co-defendant Balwani with no cc to Holmes. 2 emails shown where Holmes responded within minutes to follow up).

6.            Theranos Edison samples when compared to gold standard assays met acceptable criteria to pass CLIA regs.

7.            Sample accuracy testing done by witness Cheung resulted in “confusion” due to inappropriate testing procedures.

8.            Confusion in accuracy testing led to a SOP proficiency testing presentation to lab employees to address any testing procedure “confusion and misconceptions”.

9.            Balwani asked for more accuracy testing beyond the regulation requirements to include other assays beyond Vit D.

10.          Dr. Rosendorff kept Balwani posted on accuracy of Vit D tests (not Holmes?).

11.          Dr. Rosendorff failed to call several doctors back who had questions on results even though obligated to do so under CLIA regs.

12.          When Dr. Rosendorff had concerns that proficiency testing SOPs were not being implemented properly, the entire leadership team was willing to meet next day, but, Rosendorff delayed meeting.

13.          Holmes asked Dr. Rosendorff if he wanted meeting and if he “had other points to discuss”. Rosendorff didn’t request a meeting.

14.          Although prior testimony showed concerns regarding Theranos HCG tests, Dr. Rosenberg validated HCG tests for use. When he expressed concerns regarding HCG test result and accuracy, Holmes responded within minutes, “how did that happen”. He does not recall if he had meeting with Holmes to discuss.

15.          Although Dr. Rosendorff was opposed to deleting data points, he approved of the 6-tip practice at Theranos and testified that standard guidelines allowed for averaging 5 readings Theranos averaged 4 readings.

16.          In response to a doctor’s inquiry regarding test results and accuracy, Dr. Rosendorff empathetically assured the doctor that Theranos tests had “rigorous accuracy” and he was “confident on lipid panel results’ as he “checked the QC results”.

While Dr. Rosendorff’s testimony may have shed some doubt as to whether Holmes had the requisite knowledge of the inaccuracy or unreliability of the technology amounting to fraud, or lack thereof, the jury will be instructed that the doubt required is reasonable doubt, not just any doubt or a doubt as to the defendant’s guilt or innocence. And…it is up to the jury to determine what the facts are, weigh the credibility of each witness and determine whether a doubt is reasonable.

The Defense is scheduled to continue their cross examination of Dr. Rosendorff on Tuesday.

Simply my opinion, what say you?      

Watch my legal analysis of the Holmes trial on KRON4, KPIX5 CBS, FOX KTVU. KPIX5 CBS.

Gabby Petito: 911 Call “Hitting Her”

Here’s what the 911 caller said that led to the traffic stop of Gabby Petito and Brian Laundrie:

A male caller who was driving by Gabby and Brian outside the Moonflower store in Moab Utah on August 12, 2021 called 911 to “report a domestic disturbance…gentlemen slapping the girl, ran up and down the street, proceeded to hit her and they hopped into the car and they drove off…just drove off right on main street…”.

Listen to the 911 call here.

When people are so enraged or out of control as to be violent in public, it indicates a history of violence between the people involved. This is not an isolated incident. In this case, in my opinion, the violence probably escalated after the traffic stop and resulted in further harm to Gabby. Just as Gabby said to the officer during the traffic stop, “he wouldn’t let me in the car, until I calmed down..” Tragically, he may have just left her or violence led to her death.

Again, I hope this case results in better training for officers in domestic violence situations. Her crying at the scene, continued excuses on behalf of Brian and taking the blame are all red flags. Additionally, for example, did anyone ask why Gabby was anxious around Brian? Did anyone ask why Brian had to walk away from Gabby to cool off? Where did Brian learn to walk away?

Simply, my opinion, what say you?

Very sad.

See something, say something.

BTW, here’s an idea for a new federal law, from someone who used to prosecute DV cases, require 911 operators to play, repeat verbatim or transcribe the 911 call to the officer who is assigned the call. Had the officers known that witnesses saw Brian slapping and hitting Gabby, hopefully, the officers would have responded differently and Gabby would be alive today. Call it Gabby’s Law.

Gabby Petito: Police BodyCam Video of Traffic Stop

Tragically, 22 year old Gabrielle “Gabby” Petito’s remains were found today in Grand Teton National Park in Wyoming after her being reported missing for weeks. She was on a van trip with her fiance Brian Laundrie. He returned home to Florida weeks ago in the Gabby’s van without Gabby. He decided not to talk to the police regarding Gabby’s whereabouts, although, he has a right to remain silent. As of last Tuesday, Brian is now missing. The cause of Ms. Petito’s death has not yet been determined.

Here is the full video from the officers bodycam of the traffic stop of Brian and Gabby weeks before she was reported missing. Traffic stop begins at 19:34 and was posted on youtube by Crime & Justice by Mentour lawyer. (posted here for educational purposes only).

As a former domestic violence prosecutor, may this video result in better training and response of officers in the handling of possible domestic violence situations (and Miranda rights training). Simply, my opinion.

May Ms. Petito rest in peace. My condolences to her family and loved ones.