Elizabeth Holmes Wants Jury Vaxxed and Untainted by ‘Bad Blood’
(Bloomberg) -- Some potential jurors have been so contaminated by mass media critical of Elizabeth Holmes, her lawyer said, that they shouldn’t be permitted at the courthouse where her criminal trial is set to start next week.
Attorney Kevin Downey on Wednesday told the judge in charge of the trial he’s identified about 30 jurors who acknowledged in questionnaires that they’ve seen, read or listened to a documentary, book or podcast about the collapse of Holmes’s blood-testing startup, Theranos Inc.
The media contain “inadmissible, inflammatory, often inaccurate information about this defendant,” Downey said, adding that there’s a risk “that’s how this trial will start -- with those jurors in the box.”
The jurors, he added, shouldn’t even be allowed to explain whether they can set their biases aside. “We should not do that at risk of polluting the entire pool of jurors.”
The formal process of winnowing the jury pool through in-court interviews doesn’t start until next week. The task U.S. District Judge Edward Davila set out to accomplish Wednesday was to eliminate a first cut of jurors that he, Downey and prosecutors lawyers all agree shouldn’t serve.
Holmes is charged with fraud and conspiracy for lying to doctors, patients and investors about the accuracy and capabilities of her company’s machines to perform hundreds of tests for disease using a small sample of blood.
Wednesday’s hearing revealed what promises to be an ongoing challenge in the jury selection process -- determining whether people are too biased by media exposure critical of Holmes or Theranos to objectively decide her case.
Davila was taken aback by Downey’s aggressive stance. He started the hearing by outlining protocols to guard against coronavirus infection at trial, asking but not ordering both sides if they might agree to select only vaccinated jurors. Downey said he would. Prosecutors didn’t commit, leaving that issue undecided for now.
Read More: Holmes Can Find Fair Jurors Despite Publicity, Judge Says
“I don’t think we can exclude today jurors who have expressed a bias,” Davila said at the outset. The judge said he wants to “explore those expressions” to determine “whether any perceived bias can be set aside.”
As the hearing wore on and Downey pressed harder, Davila grew incredulous when he understood Holmes’s lawyer wanted the most media-exposed jurors dismissed before hearing from them.
“You’d like them to never enter the courthouse?” Davila asked.
Downey confirmed the request. “If you’ve been exposed to content which is so prejudicial that a juror who has seen it cannot be fair, that juror should be excused,” he said.
Among the titles jurors were asked about on the written questionnaire is “Bad Blood: Secrets and Lies in a Silicon Valley Startup,” the book by John Carreyrou, who chronicled the rise and fall of Theranos for the Wall Street Journal. Also on the list was HBO’s “The Inventor” and “The Dropout,” a podcast produced by ABC News
The judge and both sides agreed on dozens of potential jurors who were dismissed for reasons ranging from mundane to unusual. A person who knows a Theranos investor won’t serve. Neither will another person who served on the grand jury that indicted Holmes.
Near the conclusion of the hearing Downy attempted to probe what type of questions Davila might ask potential jurors to arrive at the group who will decide the case.
The judge previously revealed that he may ask jurors questions about a defense Holmes might use -- blaming the fraud on a mental condition or disease, possibly tied to a romantic relationship with former Theranos President Ramesh “Sunny” Balwani who faces trial on the same fraud and conspiracy charges next year. The judge kept his cards close to his vest.
“I told you I do intend to go into that area,” Davila said, referring to the mental disease defense. “And we’ll see where that takes us. I can’t tell you exactly what those questions are.” The court will “explore some of those issues,” Davila added. “I think that’s important to do in this case.”
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