USA v. Ramesh Balwani: Taint, Group Activities, and Voir Dire

I left court early today because I don’t need to stay the entire day to identify a lynching.

Defense counsel Jeff Coopersmith continued pleading with Judge Edward J. Davila for individual (aka private) juror exams to avoid “tainting” the jury pool with some jurors’ knowledge of Elizabeth Holmes’ trial. In response, Davila said taking one person aside also impacts jurors’ perceptions because singling someone out may send a message to other jurors that honest discussion is not to their benefit. You could almost hear Coopersmith thinking, “What’s the point of a severed trial if I have to deal with Elizabeth Holmes without the benefit of cross-examination or a fresh start?”

From Judge Davila’s perspective, because the indictment mentions Elizabeth Holmes, jurors hearing her name—and presumably her notoriety—is unavoidable. Regardless, Davila planned on instructing the jury not to consider Holmes’ absence at this trial. It’s unclear whether such an instruction will give Ramesh Balwani the clean slate he deserves. You can’t “unring the bell” or “unlearn something,” so how can anyone be sure Balwani’s second-in-line trial positioning won’t affect his outcome? 

About half of today’s juror pool heard or read news coverage of Elizabeth Holmes’ case. Ignoring which cave in the Bay Area housed the other half, how can lawyers conduct in-depth voir dire without potentially prejudicing the entire jury pool? To me, the solution appears simple: you split into two groups persons familiar with the Holmes trial and/or verdict, and you question them individually. After striking jurors from the “foreknowledge” section, you then question, as a group, persons not familiar with the Holmes trial. Instead of adopting the aforementioned solution, Judge Davila kept asking jurors exposed to media coverage of Holmes or Balwani whether they’d be able to put foreknowledge out of their minds and set aside what they believed (as a result of exposure) to be fair and impartial. The most honest answers were, “I don’t know” and “I think I can.” At the end of this epistemological circus, Coopersmith again indicated the “open session” format was problematic and asked Judge Davila to excuse the entire juror panel and bring in a new one. Davila refused, saying the jurors did not display a “monolithic” perspective on Theranos and their varied answers did not indicate a “collective voice.” (I was hoping someone would say “thought crimes” so I could use “Minority Report” in a sentence, but you’ll have to settle for the disjointed reference.)

The most frightening periods involved jurors agreeing a defendant is “probably guilty” if charged with a crime because the allegations had to contain “some truth.”

It takes a man to suffer ignorance and smile / Be yourself no matter what they say. -- Sting, An Englishman in New York 

Judge Davila would do his best to rehabilitate these jurors, asking them to look at Mr. Balwani and then say whether they believed he was guilty. When only one juror responded by saying defendants are presumed innocent, Davila mentioned other countries ex-USA in which a defendant is considered guilty if charged and must prove his innocence. (Note: When comparing criminal justice systems, analyze the prosecutor’s burden of proof; when comparing civil justice systems, review fees and cost-shifting mechanisms.) He said he believed one such country is currently involved in a “skirmish.”

If Davila was thinking of Russia, he would benefit from better self-education:

“The [Russian] Constitution stipulates that every person accused of committing a crime is considered innocent until his or her guilt is proved, according to the rules fixed by the federal law and confirmed by the relevant court decision. As a result, the prosecution is obliged to prove that the accused is guilty. The burden of proof cannot not be transferred to the accused.” [Source: Thomson-Reuters]

If Davila was thinking of the Islamic Republic of Iran, Dr. Jonathan Brown of Georgetown University may be of assistance:

“The presumption of innocence for the accused is a central principle in both Muslim and American law.  As some common law jurists have written, its main function in the courtroom is to remind the jury that the charges, arrest or detention of the defendant are not evidence of guilt, and that the prosecutor has to prove any claims they assert.1 This might seem banal, but it’s incredibly important.  It means that what we hear or see about the accused prior to the presentation of evidence should have no weight in how we judge a case after the evidence has been presented.  Moreover, as Nasr Pierce recently observed, “The presumption of innocence is as much a social concept as it is a legal one.”  Its validity extends outside the judiciary to the realm of interpersonal ethics and the court of public opinion, where it is an essential barrier against the defamation and ruination of those innocents who are accused baselessly… The presumption of innocence and the burden of proof are cornerstones of Islamic legal procedure.  In sound Hadiths, the Prophet ﷺ  ruled that, in the case of one person accusing another of a wrong or of depriving them of some right, the accuser must provide some form of direct evidence” [Emphasis mine.]

In what would have been the day’s most interesting development, prosecutor Jeff Schenk initially affirmed Judge Davila’s statement that the relationship between Holmes and Balwani was not going to be an issue in this trial; however, after conferring with prosecutor Robert Leach, Schenk clarified that Holmes’ allegations of “abuse” would not be an issue in this trial.

Speaking of trial, this one is projected to last 13 weeks, but if the contentious yet sluggish pace continues, this carnival of ignorance might provide entertainment for the entire summer.

© Matthew Mehdi Rafat (2022)

SSN 2770-002X