Theranos Trial: United States vs. Elizabeth Holmes, Day 14 (Presumption of Innocence)

On the fourteenth day of trial, Judge Edward Davila of the Northern District of California finally showed frustration. Normally content with using jokes to express both pleasure and displeasure, Davila is becoming less magnanimous. An 8:15AM evidentiary hearing didn't help, especially when such hearings are more nit-picky than novel.

Most laypersons do not realize a jury, especially in a criminal case, will not see all available evidence. To ensure a fair trial, a judge must restrict the Crown's attention to the pertinent facts; absent a leash, even the most honest prosecutor will resemble Victor Hugo's Javert by the thousandth defendant. By the same token, if the defense is allowed to cross-examine a witness for weeks to parse every statement made, not just during direct testimony, but over the course of an entire career, no one's credibility is safe. To balance rigor and justice, the law forbids evidence more prejudicial than probative, i.e., more fluff than substance; and also bans character evidence, i.e., more smear than substance.

What is allowed and disallowed requires an examination of human nature by human beings, generating an analysis akin to post-modern art, not mathematical proof. To help Lady Justice stay balanced, relevance under Federal Rules of Evidence (FRE) 401 has several friends, time limits being the best. A thief at twenty is entitled to argue the state's accusations of theft at thirty must be considered independently. If the state accuses the thief of committing the same crime in the same place ten years later, a multitude of questions must still be asked before allowing the state to proceed with any line of questioning regarding the earlier incident. Is the state alleging the exact same tools were used? If so, will the state provide expert testimony supporting its claim? What if the same tools were allegedly used, but the store replaced its padlock with a high tech security system? Are the two incidents dissimilar enough to require the state--with its ample resources, including taxpayer-funded investigators--to discuss only the most recent burglary?

Today's evidentiary hearings caused more recesses than usual, and during one, I clicked on a WSJ article regarding Elizabeth Holmes' text messages. The jury has not seen most of the text messages in the article, not because the texts lack relevance, but because they are more prejudicial than substantive. When text messages were shown to the jury, they were admitted as part of a spreadsheet verified by a forensic expert--and many were redacted. That's FRE 403/611 at work, without which the phrase "presumption of innocence" would be more theory than principle, and trials more circus than contemplation.

"To the extent that failures in the lab are the result of incompetence of someone other than my client, it’s exculpatory for my client." -- defense attorney Lance Wade to Judge Davila 

Here, defense attorney Lance Wade wanted to cross-examine Dr. Adam Rosendorff about post-Theranos activities but was restricted by Judge Davila, who at one point asked, "If he's incompetent post-Theranos, what's the relevance [to Theranos and Holmes]?" Ultimately, much of Wade's desired scope was (justifiably) restricted either because it was character evidence under FRE 608(b) or cumulative under FRE 403. After Davila's decisions, Wade continued maligning Dr. Rosendorff's competence and loyalty while employed at Theranos. Wade showed several emails in which Rosendorff raised lab issues to Elizabeth Holmes, but only after he was interviewing for another job and had "one foot out the door."

Email, October 14, 2014, Rosendorff: "I am feeling pressured to vouch for results that I cannot be confident in..." [Email sent four days after interview occurred or was scheduled. Rosendorff began working at another company in December 2014]

Before government attorney John Bostic's redirect, Judge Davila agreed Wade "challenged his [Dr. Rosendorff's] competency." If Wade successfully diverted attention and responsibility from his client, will it be enough to establish reasonable doubt? It's unclear because the data itself is unclear.

On redirect, Bostic again proved Theranos' lab issues, particularly with HCG (pregnancy hormone) and the Edison. Why isn't that enough to convict Elizabeth Holmes? For one thing, Bostic used work emails from Elizabeth Holmes' brother, Christian Holmes, which indicates neither person was trying to conceal anything. In fact, Christian Holmes seems to have been earnestly attempting to fix problems. 

Email, June 13, 2014, Christian Holmes to Elizabeth Holmes: "Been spending all morning talking to doctors about HCG..."

Interestingly, Elizabeth Holmes' response to one email said, "this is already handled." Since no reason exists for Elizabeth to mislead her hard-working brother, the evidence introduced by the government portrays Elizabeth Holmes as the victim of miscommunication. If the issue was handled, but only because Theranos' staff shifted HCG testing from fingerstick to traditional machines, is that a crime? We already know Theranos was trying to reverse-engineer Siemens' Advia device, and we should already understand attempted reverse-engineering is not a crime. The issue, then, is whether Elizabeth Holmes committed criminal fraud when she advertised fingerstick testing on a single homegrown device from 2009-2014 despite knowing Theranos' device wasn't ready to "go live."

In my opinion, Bostic's emails today helped Elizabeth Holmes.  One email indicated 20 out of 33 Edison devices passed quality control testing; another email sent a few days later said, "17 of 35 edisons passed QC." If you're an optimist, the glass is half-full, not half-empty. Seventeen of thirty-five failures means sixteen successes, and no reason to believe kinks won't be worked out for the remaining seventeen.

Judge Davila's use of baseball analogies to the jury during voir dire may be more relevant than he anticipated. After all, isn't a .301 batting average worse than a .486 average but still considered excellent?

© Matthew Mehdi Rafat (2021) 

ISSN 2770-002X