The Mercury News

Theranos founder’s ‘deeply intrusive’ jury questions criticized.

Proposed 41-page questionna­ire seeks to weed out bias from available pool

- By Ethan Baron ebaron@ bayareanew­sgroup.com

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.

 ??  ??

Newspapers in English

Newspapers from United States