It’s Monday December 27, 2021 Day 4 of jury deliberations. Twenty-five hours have passed and the jury in the USA v. Elizabeth Holmes trial is still deliberating over a verdict.
What’s going on?
Like most jurors, they are diligently and methodically going over the evidence, the jury instructions and the verdict forms. My first clue…they asked to take the jury instructions home on day 2 of deliberations and day 3 they asked to re-hear the investor call between Holmes and investors, specifically, as to count 5 of the indictment, the $4.8M investment from Bryan Tolbert. Did she make false statements to obtain investor money, otherwise, known as, wire fraud?
My guess, they are going thru the counts in order…and, 11 counts takes time. And, they may have set aside the 2 conspiracy counts for last. Especially, in this case, if they find that Balwani may have controlled Holmes, as alleged by Holmes, the jury may find that she was unable to voluntarily agree to conspire or defraud. Moreover, jurors can get confused too or delayed initially as to the elements or the “object” of a conspiracy.
Keep in mind, the jury has heard from 32 witnesses including 7 days of testimony from Holmes and many exhibits from audio clips of Holmes speaking to investors, Holmes interviews on Mad Money and the Today Show, powerpoint presentation materials, lab reports, numerous emails and texts to financial spreadsheets.
Patience, my guess, we will likely get a verdict this week. If we don’t, time favors the defense. Typically, the longer a jury is out (in deliberation) or the more jury questions asked, the more likely it favors Holmes with an acquittal or a compromised verdict, guilty on some counts and not guilty on others.
Simply my opinion, what say you?
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?
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.
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?