Jury selection proves challenging as fraud trial begins
SAN JOSE • As Theranos founder Elizabeth Holmes’s highly anticipated fraud trial began on Tuesday, the judge overseeing the case quizzed potential jurors about whether they could be fair, considering the intense media coverage about the entrepreneur, who has long been a subject of fascination in Silicon Valley.
Dozens of prospective jurors crowded into a small federal courtroom in San Jose, Calif., wearing masks and sitting one seat apart to protect against COVID-19.
Holmes, 37, has pleaded not guilty to defrauding Theranos investors and patients by falsely claiming that the now-defunct blood testing company had developed technology to run a wide range of tests on a single drop of blood.
The meteoric rise and spectacular fall of Theranos turned Holmes from a young billionaire into a defendant who could face years in prison if convicted.
When asked on Tuesday if they had been exposed to media coverage of the case, more than a third of the potential jurors raised their hands. At least one had read “Bad Blood,” Wall Street Journal reporter John Carreyrou’s best-selling book about the Theranos saga.
The book chronicles the rise and fall of the company Holmes started at age 19, concluding that she was a “manipulator” whose “moral compass was badly askew.”
Jury pool members who were questioned about that exposure in court said it would not affect their ability to be impartial.
Known for dressing in a Steve Jobs-style black turtleneck, a masked Holmes wore a black suit in court Tuesday.
The pandemic loomed over the proceedings, with U.S. District Judge Edward Davila assuring jurors about the quality of air filtration in the courtroom.
Davila excused nine jurors who had not been vaccinated against COVID-19, saying jury service would be a hardship for them. Limiting the panel to jurors who said they had been vaccinated would provide “reassurance” for those who live with unvaccinated family members, he said.
The trial is expected to last several months, and Holmes’s lawyers have said she may make the unusual move of taking the stand in her own defence, something that most defendants choose not to do because it opens them up to cross-examination by prosecutors.
Court papers submitted more than 18 months ago and unsealed late on Friday revealed that Holmes had accused former Theranos COO Ramesh (Sunny) Balwani of psychological and sexual abuse.
Holmes’s lawyers said her “deference” to Balwani led her to believe allegedly false statements about parts of Theranos that he controlled, including a claim about a partnership with drugstore chain Walgreens.
The lawyers told Davila last year that Holmes was “highly likely” to testify about these claims, court papers show.
Balwani denied allegations of abuse in a 2019 court filing. He is scheduled to be tried on fraud charges related to Theranos after Holmes’s trial ends.
Lawyers for Holmes and Balwani did not return requests for comment Monday.
Christina Marinakis, a jury consultant with IMS, a provider of expert and litigation consulting services, said prosecutors and Holmes’s lawyers have likely combed through potential jurors’
THEY MAY FEAR THEY ARE GOING TO BE LOOKED AT AS MISOGYNISTS.
social media posts for their views about abuse, since they generally “don’t like to talk about these things in open court.”
Marinakis said jurors may be reluctant to admit to a tendency to view a claim of abuse as an “excuse” for Holmes’s conduct.
“They may fear they are going to be looked at as misogynists,” she said.
Holmes was 18 years old when she met Balwani, who is 20 years her senior, and started living with him around three years later, according to Carreyou’s book.
Marc Agnifilo, a New York lawyer, said Holmes’s case had some parallels with that of Martin Shkreli, a former client found guilty in 2017 of bilking investors in his hedge funds.
Before his trial, Shkreli gained notoriety for hiking the price of Daraprim, a drug that treats life-threatening parasitic infections, by more than 4,000 per cent in one day.
Shkreli “inspired this visceral negative reaction that was pretty challenging to keep out of the jury,” Agnifilo said.
Holmes’s lawyers, he said, should seek out “smart, open-minded jurors (who) are not just going to buy into the government’s view of the facts.”