Theranos Trial: United States vs. Elizabeth Holmes, Day 2
The star of Elizabeth Holmes' trial on Day 2 was someone you've never heard of: Adriana K., deputy clerk. Without her diligence, the machinery required to host a trial wouldn't start.
Though criminal trials are portrayed as exciting, they are never consistently so. In fact, the first few days are mind-numbing because that's when judges and lawyers pick jurors from the elusive Venn diagram of people who 1) actually want to be there and 2) don't have an ax to grind.
Today, from nine to five, with a one hour lunch reprieve, the focus shifted from Holmes to a mishmash of unlucky souls, some of whom hadn't understood the instructions mailed to them. For example, some prospective jurors summoned yesterday came to court today. (How someone unable to understand a simple document can be deemed qualified to evaluate complex expert witness testimony is a mental alchemy I cannot explain.) If we were perfectly honest, the jury selection process wouldn't have a name as dignified-sounding as voir dire; an arguably better approach would involve court security tackling random pedestrians within ten miles of the courthouse, then dragging them to a Q&A session featuring the Hunger Games theme. You've heard of "Dancing with the Stars"? Voir dire is mostly dancing with idiots, then attempting to speed date the ones not overtly insane.
Who keeps track of all the people summoned while ensuring the trial judge is informed of important developments? The courtroom's deputy clerk. Once jurors arrive, they are assigned numbers to better track them, but with so many summoned--anywhere between 50 and 100 people--it's not simple to determine how many remain after several have been excused or stricken. Towards the day's end, the judge believed he had 41 prospective jurors but Adriana K. provided the correct number: 44. (The goal is to finalize 12 regular jurors plus 5 alternates. Each side is able to "strike," for any reason, a limited number of qualified jurors after the judge has eliminated people for cause.)
In addition to keeping track of jurors and communicating with attorneys to ensure everyone, including the judge, is on the same page, Adriana K. handles all accommodations. Need a headset transferring the courtroom's microphone feed into your ears? Adriana handles that. You in the back--want a wireless microphone so everyone can hear you? Enter Adriana. After the day concludes and observers and jurors need to return headsets and other loaned items, who's there to collect them? Adriana. Who wakes you up when you fall asleep during a prospective juror's oversharing of irrelevant information or an attempt to escape jury duty through specious grounds of hardship? Adri...
Jokes aside, let's discuss what excuses worked, with the caveat that each judge is different and could be stricter or more lenient.
1) Speak Up on the Second Day. Because the usual goal is to seat twelve plus five jurors, judges are hesitant to dismiss anyone the first day, when they lack visibility into the number of potentially qualified jurors. If you want to be excused, try raising your issue on the second day, not the first. Claiming you need to pick up a young child at school every other afternoon, including today, might work the second day but not the first.
2) Use Evidence from an Expert. A note from a doctor almost always works.
3) Use Family and Professional Obligations Cautiously. Familial obligations might work but require both exigency (i.e., an elderly family member with a chronic medical condition requiring insulin shots) and the unavailability of others to assist. Today, several teachers and nurses were excused because of COVID19 and their inability to find substitutes, but under normal circumstances, they would have been retained.
What didn't work? Vacation plans, crying, inability to speak perfect English, and minor surgeries. If it can be re-scheduled or accommodated, don't raise it. One person said he'd believe a doctor's testimony over someone else's, thinking it meant he'd be prejudiced, but the judge is looking for meaningful bias, not your willingness to judge credibility based on a witness's experience and personal knowledge.
Having observed the prosecution and defense for two days, I'll end by sharing some general opinions, all of which may change. First, the defense is clearly more polished than the prosecution. Holmes and her primary attorney are so detail-oriented, they've coordinated suit colors. They both wear the same color, but one wears a lighter or darker shade. Yesterday, it was blue; today, gray. Also, though both sides have multiple lawyers, it's clear which Holmes' attorney is directing the defense; in contrast, prosecutors prefer a team-oriented, inclusive approach, making them harder to follow.
Second, by anyone's standard, the prosecution is a motley crew. Jeffrey Benjamin Schenk, who's taken the lead so far, has a voice and body resembling Kermit the Frog. Every time I look at him, I think of someone I wouldn't mind my daughter bringing home, but only because I'm relieved she isn't dating an obvious criminal. Robert Seldon Leach looks like a miniature-sized Juggernaut (from Marvel Comics) with a slight mental disability. If my daughter brought him home, I'd disown her. John Curtis Bostic is the x-factor. He hasn't said a word yet, but he's the tallest of the three and the only one who looks like he could play a lawyer in a movie. At their table is a female FBI agent.
The more I sat in court, the more I realized only one juror needs to sympathize with Elizabeth Holmes to cause a hung jury, i.e., a partial win for the defense. Unlike executives at Enron and other corporate blowups, Holmes has no known record of being publicly disrespectful to analysts, investors, or others. Consequently, if she argues her crime was merely excessive optimism, all she needs is one juror to look at her, see a new mother, and agree. Ramesh Balwani, her alleged co-conspirator, cannot make the same argument because at least one email to Tyler Schultz establishes him as an intimidating enforcer. Did Holmes play good cop and Balwani bad cop? It certainly seems that way.
During more favorable times, I saw Holmes interviewed by accident. I had signed up to hear the founder of Khan Academy, but when I sat down, I realized the event was him interviewing Holmes. Though disappointed, I decided to stay. By the end of the interview, I was ready to invest in Theranos. As far as origin stories go, Holmes had one so picture-perfect, everyone wanted to be in the frame. More to the point, I never felt any kind of bad intent or bad blood emanating from her, though perhaps I should have questioned how she exited the small building without a trace, despite several people waiting to see her outside. In retrospect, it's clear Holmes lived in a bubble, one so auspicious, it allowed her access to the White House and foreign dignitaries overseas, including Singapore's founder, Lee Kuan Yew. Will all twelve jurors envy her rise and relish her fall?
As far as subplots go, it's true the prosecution has appeared amateurish, but John Bostic is thus far unstained. Mr. Bostic appears to be African-American, which would ordinarily be irrelevant but for Holmes' allegations of domestic violence involving Balwani. Wouldn't it be poetic if an educated brown man successfully countered Holmes' attempt to evade responsibility by arguing "The Foreign Brown Man Made Me Do It"? Would doing so preserve what's left of America's reputation for accountability? Or would it unjustly punish someone who tried to change the world but was out of her depth?
© Matthew Mehdi Rafat (2021)
Bonus: San Jose, California relates to another incident involving a lab technician, a possibly concealed relationship, and an Ivy League female scientist. On September 8, 2009, Annie Le, born in San Jose, was murdered by Raymond J. Clark III. Clark was a Yale lab tech. Le was a 24 years-old PhD student at Yale School of Medicine.
Bonus: One reason the trial is scheduled to last 13 weeks, with jurors only appearing three days per week, may be for evidentiary discussions and stipulations. More specifically, Judge Davila may have reserved two days a week to solicit and decide motions in limine, i.e., motions excluding evidence.
In jury trials, witness testimony can be treacherous because once a jury hears inadmissible testimony, "the bell cannot be unrung," and the defense may have grounds for appeal or a mistrial if prejudice results. If Holmes did play "good cop," then much of the testimony against her may require a hearsay exception. One hearsay exception includes a "dying declaration," which may apply because George Schultz died February 6, 2021.
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