Theranos founder’s ‘deeply intrusive’ jury questions criticized.
Proposed 41-page questionnaire seeks to weed out bias from available pool
A proposal by Theranos founder and accused fraudster Elizabeth Holmes to use a lengthy questionnaire to screen out biased potential jurors was attacked as “deeply intrusive” by prosecutors.
In court filings filed last week and recently made public, her legal team cited “vast” and “varied” news coverage, including from this news organization and dozens of other local and national publications, along with a forthcoming TV drama and a movie, plus a book, documentaries and opinion pieces going as far back as 2015, that they argued threaten Holmes’ ability to have an impartial jury and fair trial.
“The coverage of this case sweeps across numerous types of media, saturating prospective jurors from all walks of life,” her lawyers argued in a court filing, adding that publicity around the case has been “pervasively negative.” Holmes, they claimed “is routinely referred to in derisive and inflammatory terms” that are directly relevant to the fraud charges she’s facing.
“Media coverage describes her as a “fraud,” “fraudster,” “con artist,” “disgraced Theranos founder,” “scam artist,” and a “raging psychopath,” her lawyers argued. News reporting has also featured information presented in pre-trial proceedings that won’t be allowed before jurors during the trial, her team said.
Holmes’ team filed a proposed 41-page questionnaire they want the court to use to filter from the jury pool anyone whose views might have been affected by exposure to negative coverage of Holmes, or her co-accused Sunny Balwani, who was the Theranos president, or of the company.
The “lengthy” proposed questionnaire was more extensive than is typical, but that was necessary given the circumstances of the case, her lawyers said. “Questions about inability to serve, employment, language fluency, marital status, prior jury service, and many other issues that the questionnaire addresses are routine,” her team said in a letter to prosecutors filed last week in San Jose U.S. District Court. “And the substantial media coverage of the matter and the continuing COVID-19 pandemic will obviously require some special inquiry.”
Prosecutors responded in
a letter to her lawyers saying their proposal differed significantly from typical jury questionnaires. “To identify just a few issues, the proposed questionnaire is far too long, deeply intrusive in unnecessary ways, argumentative, and repetitive, and it significantly exceeds what is sufficient to select a fair and impartial jury,” the prosecution wrote.
Holmes, pregnant and expecting a baby next month, founded the now-defunct Palo Alto blood-testing startup in 2003, after she dropped out of Stanford University. She and Balwani are charged with a dozen counts of felony fraud. The federal government alleges Holmes and Balwani — who will be tried separately — bilked investors out of hundreds of millions of dollars. Prosecutors claim they defrauded patients and doctors with false claims that the company’s machines could conduct a full array of tests using just a few drops of blood, when they knew the technology had accuracy and reliability problems. Holmes and Balwani have denied the claims.
The proposed questionnaire from Holmes contains 112 questions. Included are detailed queries about a person’s investments, medical testing history, news media consumption, social media consumption and posting, and what type of health insurance they may have. Prospective jurors are asked to name any medications they’re on, and describe side effects, that might affect their ability to serve. The anti-anxiety drug Xanax is provided as an example. Question 30 asks, “What are your hobbies, major interests, recreational pastimes and spare time activities and sports?”
The proposal from the government runs 9 pages, with 51 questions. Queries related to health care include whether a prospective juror has been trained, educated or employed in medicine or lab testing, and whether they have any condition that would affect their ability to hear witness testimony. On media consumption, the prosecutors’ proposal asks how often a person consumes financial news and from what sources.
“Have you heard or read anything about this case before today?” Question 19 asks, followed by, “Is there anything about the nature of the charges and/ or what you have heard or read about this case that would affect how you judge the facts of this case or the person accused?”
The government also proposes to ask prospective jurors if they have strong feelings or opinions about Holmes, Theranos or Balwani.
“Jurors will decide the case based solely on the evidence presented in the courtroom and not information a juror may have heard or read about this case previously,” another question asks. “Will you be able to follow this instruction?” Another question states, “Both the prosecution and the defendant are entitled to have a fair, unbiased, and unprejudiced jury,” and asks, “Is there any reason why you should not be a juror on this case?”
Holmes’ trial, delayed three times because of the pandemic and procedural matters, is scheduled to start Aug. 31. She faces maximum penalties of 20 years in prison and a $2.75 million fine, plus possible restitution, the Department of Justice has said.