USA vs. Ramesh Balwani: Backlogs and Juror Bias

Today's hearing started twenty minutes late, presumably because Judge Davila and his new courtroom clerk, Chere Robinson, were reviewing documents sent by the parties last night. (I myself attempted to file a motion tonight as an intervenor but the upgraded e-filing system still looks like it was programmed in 1991, so I had to e-file under seal.) 

Davila’s courtroom has new artwork. He called them “WPA murals,” and the process of getting them on the walls was “five years in the making.” The murals display blue collar scenes, including San Francisco Chronicle workers at a printing press, and agricultural motifs like apricot trees and milked cows. I appreciated seeing ink-stained hands accorded the same respect as a farmhand, but the entire enterprise was clearly a shoddy Diego Rivera ripoff, so I lost interest after a few glances.

The hearing involved “striking” or excusing potential jurors for cause based on responses to written questions. With only 18 out of 240 jurors needed, including alternates, the lawyers want to cull the herd, and they need the judge’s approval to do so. The defense team thinks only 68 out of 240 potential jurors should make the cut, but the prosecution doesn’t necessarily agree, and the judge gets final say. Jurors can be excused for bias or hardship. You don’t want jurors who’ve already made up their minds, and you don’t want jurors who can’t focus. One potential juror was considered too opinionated and excused, but most were excused for travel reasons. One person was about to move out of the area; another person had a prepaid vacation; someone needed four separate buses to reach the courthouse; and someone else cited a six-hours daily commute. Citing a medical condition is a good tactic, and the court accepted one person’s claim that the trial would exacerbate her hypertension.

“If a defendant doesn’t testify, s/he must be hiding something.” It was clearly a defense-submitted question, and a smart one to ask, but the judge declined to strike based on the affirmative response, saying the juror could be “educated” during voir dire. The prosecution scored a hit when someone praised jury nullification, i.e., the idea that jurors can decide for themselves whether a law is being applied unjustly and then decline to apply it to the defendant. (Think about murder charges against a domestic violence victim, or in the days of Jim Crow, a black man taking his white girlfriend across state lines in violation of the Mann Act.) With respect to COVID19 vaccinations, Judge Davila’s attitude has softened since the previous Elizabeth Holmes trial, and he will no longer make a “wholesale exclusion of unvaccinated jurors.”

As the parties discussed potential jurors, defense counsel Jeff Coopersmith said the risk of juror bias had increased because of the publicity surrounding Holmes’ conviction. Judge Davila tried to regain equilibrium by saying some bias is presumed, and the issue is “bias that cannot be rehabilitated.” Speaking of bias, two jurors were excused for making prejudicial statements against Indians and Pakistanis. (Balwani was born in Pakistan but is of Hindu/Sindhi descent. Sindhis are not as well-known as Punjabis, and my Hindu neighbor down the street told me Sindis were “farmers” who remained in Pakistan after the partition.) 

We mentioned domestic violence earlier, and the judge asked how much he should delve into the issue with potential jurors. In her trial, Holmes alleged she suffered verbal and sexual domestic violence during her relationship with Balwani, allegations Balwani denied through his counsel. Coopersmith said he would prefer not to talk about domestic violence at all, but Judge Davila wondered if a juror should be excused even if s/he had only a slight exposure to such allegations. Is reading a headline enough to get someone excused? If not, how can the attorneys question the extent of a juror’s knowledge without prejudicing the rest of the panel? Coopersmith suggested questioning an individual away from other jurors if the issue arose, and while the judge didn’t disagree, he expressed concern with logistics. The day ended earlier than expected so Judge Davila could review juror charts and other materials.

As I exited the courthouse, I couldn’t help wondering if Davila’s willingness to open proceedings to the public was less about transparency and more about looking good. Some people are their best selves only when a camera is present, and ever since the brilliant (and kind) attorney Steven D. Zansberg filed a motion to force Davila to unseal trial records and improve public access, I’ve been thinking a lot about fair weather judges. During the Holmes trial, I gained respect for Davila but never liked him. Something in him seemed more politician than judge, someone nice to people only if they’re useful. In fact, several years ago, Davila had one of the Northern District’s most delayed dockets, indicating he may be overly dependent on his law clerks:

“According to the latest report by the Administrative Office of the U.S. Courts, Davila has 76 civil motions that have been pending for more than six months on his docket. That number accounts for nearly 60 percent of all 128 long-pending motions reported by judges in the Northern District of California for the period ending Sept. 30, 2016.” 

That motion I filed tonight? It involves the Administrative Office Manual, and I’m alleging Davila and his courtroom clerk violated access provisions listed under “Judiciary Policy.” When I filed the motion, the online system linked to the Northern District didn’t allow new filers in the case to electronically submit documents, so I had to e-file them under seal. These days, a journalist can only do his or her job if the government is both transparent and technologically competent. What else is in the sealed section of the Northern District that shouldn’t be there but for administrative or technological negligence?

© Matthew Mehdi Rafat (2022)

SSN 2770-002X