USA v. Ramesh Balwani: Compartmentalization and Prior Knowledge

“[P]rominence does not necessarily produce prejudice, and juror impartiality does not require ignorance… A presumption of prejudice attends only the extreme case. — Justice Ginsburg in 2010, citing Irvin v. Dowd, 366 U. S. 717, 722 (1961)

Today’s word of the day was “compartmentalization.” No one believes anyone in the Bay Area could have missed headlines relating to Theranos, but the question is whether they can set aside their prior knowledge and think critically about facts presented to them—and only the facts presented to them in court. In our age of ubiquitous social media, media exposure is probably less important than a juror’s ability to be skeptical and to pay attention. The standard response to unfavorable media exposure used to be a change of venue, but that seems quaint and ineffective now. Regardless of exposure to negative publicity, most courts believe effective voir dire will detect bias. Once you realize the test is not presumptive bias but actual bias, it’s easy to see why questioning potential jurors matters. Judge Davila explained his views yesterday: the goal is not a jury free from all bias but "bias that cannot be rehabilitated."

“But you have to keep your feelings outside, [or] you lose control.” — Lars Møller Pedersen from Undercurrent: the Disappearance of Kim Wall 

The lawyers opened by asking Davila to re-consider allowing unvaccinated persons to serve on the jury. Defense counsel Jeff Coopersmith argued fully vaccinated jurors should not serve because it would make people uncomfortable. The prosecution did not object, citing 28 USC 1866(c)(2), which allows the court to excuse a juror if “service… would be likely to disrupt the proceedings.” According to the prosecution, Santa Clara County is still in pandemic mode because only 68% of residents are boosted (as well as vaccinated). Despite the lawyers’ agreement on unvaccinated jurors, federal laws prohibit rigging juries, and one of those laws requires a plan for "random jury selection." (See 28 USC 1863) Does a jury of only vaccinated jurors meet the requirements of randomness and non-discrimination? To avoid an appeal, Judge Davila asked defendant Ramesh Balwani to personally agree to the exclusion of unvaccinated jurors. After receiving verbal assent from Balwani, the judge accepted the parties’ stipulation. Balwani’s agreement was the first time he spoke in court. He spoke directly into the table’s microphone, which required him to stand up, then lean down. The spontaneous exchange took less than a minute, and Balwani gave clear and direct answers to the judge’s questions. 

The parties then continued excusing jurors for cause. Prosecutor Jeff Schenk argued mere “exposure to content is not a basis for exclusion”—it’s what you do with that content that matters. In other words, can someone who learned about Elizabeth Holmes’s conviction or Theranos’ bankruptcy compartmentalize that information in order to ensure no bias towards Balwani? Defense counsel Jeff Coopersmith argued that media content related to Holmes had increased since her trial and now included a new Hulu series in addition to a TED Talk by Erika Cheung, a podcast by Tyler Schultz, an episode of American Greed, and of course Carreyou’s book, Bad Blood. At one point, Coopersmith asked, “How can you see [Cheung’s] TED Talk and be impartial? It’s the same as reading Bad Blood,” which is enough for exclusion.

Regarding the juror who had only watched Cheung’s TED Talk, Judge Davila rejected the defense’s request to strike, saying further responses could be developed during voir dire. I suppose it’s true a person can absorb information without necessarily becoming biased, but as Coopersmith pointed out, Cheung was one of the government’s earliest and most important witnesses in the Holmes trial. It just goes to show you no matter how much people aim for objectivity, some element of subjectivity is always present in any human endeavor, particularly when judging others.

One heated exchange involved a juror who’d written s/he was uncertain whether s/he had implicit bias against persons of Indian or Pakistani origin. Prosecutor Schenk argued the juror indicated s/he could not say whether an implicit bias actually existed and, furthermore, since the intent of the question was to solicit uncertainty regarding pre-existing views, follow-up questions were warranted. Schenk’s comments caused Coopersmith to respond that there “is no place in the justice system for this juror.” Judge Davila thought the juror, who was of Indian origin, might have self-reported potential bias based on historic conflicts between India and Pakistan. (How bias based on historical conflicts would be substantially different from personal bias, I do not know. Whether a juror is logically or emotionally biased against you due to your place of birth seems to generate the same result: improper bias.) Davila differentiated the juror’s response from a more direct example yesterday, in which a juror agreed with the statement, “I do not trust people from India or Pakistan.” Davila gave a variation of his standard response when declining to excuse, saying this “needs to be developed more.” 

Before the day concluded, Judge Davila talked at length about water bottles, asking lawyers not to bring plastic water bottles and to avoid bottles of any kind when speaking at the lectern. Perhaps Davila thinks his demeanor is folksy, but having interacted with Davila briefly, I get the impression he likes conversations to be on his terms, and only on his terms. All judges are different, but I’ve never seen a great judge tell lawyers how to handle a parched throat or other details best left to personal discretion. One well-respected judge, if peeved by a lawyer’s too-casual or tie-less outfit, would grimace for a few seconds, then move immediately into proceedings without prejudice. Another judge told me, “It’s a free country!” when asked if I could sit and watch a motion hearing, and another solemnly responded, “It’s a public building.” Anyway, something seems off about Davila, and I can’t quite put my finger on it. Maybe he really is concerned with plastic in water bottles ending up in the Pacific Ocean, and he’s a die-hard environmentalist who’s been driving electric for years. Somehow, I doubt it. Chalk it up to historic conflict.

© Matthew Mehdi Rafat (2022)

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