Elizabeth Holmes’ lawyers want jurors quizzed on her being ‘celebrity’

Attorneys for Elizabeth Holmes asked on Monday to be allowed to question prospective jurors in her fraud trial on how much they know about the disgraced ex Theranos CEO due to her ‘celebrity.’ 

Jury selection in the trial begins on August 31, and is expected to take two days. Opening statements are set to begin on September 8 

Holmes is charged with a dozen counts of wire fraud and conspiracy to commit wire fraud as CEO of the defunct blood-testing firm Theranos, which she founded in 2003. 

Federal prosecutors allege that she along with her ex boyfriend and COO Ramesh Balwani defrauded investors of $700million with misleading claims about Theranos’ blood testing technology. Both have pleaded not guilty. 

Amy Saharia, an attorney for Holmes argued before district court Judge Edward Davila that because of how well known her client is, her defense team would like to question jurors about their media consumption and be allowed to inform them that what they have seen, heard or read could be misleading. 

She also asked that jurors be warned of potential bias toward well known witnesses slated to testify, which include Henry Kissinger, Rupert Murdoch and James Mattis.  

Holmes and her role at Theranos have been the subject of intense media coverage including multiple documentaries, books and podcasts.

The trial is set to take place at the California Northern District Courthouse in San Jose. 

Attorneys for Elizabeth Holmes on Monday asked to question prospective jurors on how well they know their client, arguing they might be influence by her 'celebrity.' She is pictured arriving to court with her defense team for a hearing in early May.

Attorneys for Elizabeth Holmes on Monday asked to question prospective jurors on how well they know their client, arguing they might be influence by her ‘celebrity.’ She is pictured arriving to court with her defense team for a hearing in early May.

Holmes is accused of defrauding investors out of $700million for false claims regarding the capabilities of her now defunct blood testing company Theranos

Holmes is accused of defrauding investors out of $700million for false claims regarding the capabilities of her now defunct blood testing company Theranos 

‘When there are cases that jurors may be influenced by things such as celebrity, either a witness or the defendant’s profession or position in a community, let there be some sort of caution against that,’ Saharia told Davila, CNBC reported.

‘It’s no surprise, your honor, that our client is the subject of very intense media scrutiny.’    

A trial for Balwani, who is facing the same 12 wire fraud counts, is due to begin early next year. 

They both face a possible prison sentence of up to 20 years, fines as well as restitution.

Holmes’ appearance in court on Monday was the first since she gave birth to a son late last month with her husband and hotel management heir Billy Evans.   

Mondays court appearance was Holmes' first since she gave birth to a son with husband and hotel management heir Billy Evans (left)

Mondays court appearance was Holmes’ first since she gave birth to a son with husband and hotel management heir Billy Evans (left) 

Holmes appeared visibly pregnant in court in early May with her attorneys. They announced to prosecutors in March that she was expecting, and asked her trial be postponed. Its start date is now set for August 31

Holmes appeared visibly pregnant in court in early May with her attorneys. They announced to prosecutors in March that she was expecting, and asked her trial be postponed. Its start date is now set for August 31

In addition to their request to be allowed to question jurors on their knowledge of Holmes, her defense also requested to warn jurors of bias related to testimony from the slate of celebrity witnesses expected to testify. 

‘There will be a number of witnesses who have obtained significant success in their profession, their community or are internationally known,’ Saharia said. 

Among them include former Theranos investors and board members Henry Kissinger, Rupert Murdoch and James Mattis, CNBC also reported.

They also asked to add instruction to jury questionnaires regarding their social media consumption habits, specifically on Reddit, warning that they could potentially lead to a mistrial.   

Davila denied Holmes attorneys’ request to go beyond traditional jury selection questioning and instructions, according to the Wall Street Journal

Having been the subject of intense media scrutiny, including multiple documentaries, books and podcasts, Holmes' attorneys say the attention could improperly influence jurors in her trial

Having been the subject of intense media scrutiny, including multiple documentaries, books and podcasts, Holmes’ attorneys say the attention could improperly influence jurors in her trial 

Also discussed at Monday’s pre-trial hearing were measures to prevent the spread of Covid-19, and space allotment for friends and family members. 

Attorneys told Davila that Holmes plans to attend the trial with three friends or family members, and prefers to go without face covering. 

Witnesses will also be encouraged to go mask-less, Davila announced, in order for jurors to see their facial expressions. 

District Court Judge Edward Davila, (pictured) who is overseeing the trial, denied the request by Holmes' attorneys to go beyond questioning typical for jury selection

District Court Judge Edward Davila, (pictured) who is overseeing the trial, denied the request by Holmes’ attorneys to go beyond questioning typical for jury selection 

He also said he will likely ask jurors to wear masks and provide vaccination status information, and warned for potential delays due to Covid-19 outbreaks among those in attendance.

Already the trial has been postponed multiple times due to the coronavirus pandemic, as well as Holmes’ pregnancy. 

Prosecutors are gearing up to tell jurors how Theranos blood tests gave patients alarming false positives indicating that they had serious ailments including prostate cancer, HIV and were suffering miscarriages – all while the founder knew the technology was defective. 

Among those on the potential witness list for the trial – which is slated to start later this month – is Brittany Gould, of Mesa, Arizona

In a Wall Street Journal article published August 2, Gould told of how Theranos’ trademark finger-prick test indicated she was losing her unborn child, after she’d already suffered three back-to-back miscarriages.

Monday was not the first time Holmes' attorneys asked to question prospective jurors about their media consumption. In May also want to know if jurors have read books about the Theranos scandal, like John Carreyrou¿s 2018 work Bad Blood: Secrets and Lies in a Silicon Valley Startup

Monday was not the first time Holmes’ attorneys asked to question prospective jurors about their media consumption. In May also want to know if jurors have read books about the Theranos scandal, like John Carreyrou’s 2018 work Bad Blood: Secrets and Lies in a Silicon Valley Startup

Similar to many other patients, Gould’s test was inaccurate. 

Two other former patients claim they received false HIV-positive results, while another received a test that should have detected a dangerous extrauterine pregnancy – but missed it.   

Monday was not the first time her defense has asked to grill jurors on their media consumption habits. 

On May 27 during their last hearing lawyers for Holmes requested that prospective jurors to answer 112 questions about their social media habits, whether they subscribe to Netflix, and if they called into a radio show.

They also want to know if jurors have read books about the Theranos scandal, like John Carreyrou’s 2018 work Bad Blood: Secrets and Lies in a Silicon Valley Startup, and watched critical documentaries like HBO’s The Inventor: Out for Blood in Silicon Valley.

They also demanded to know if prospective jurors regularly read any of 46 publications including The Wall Street Journal, DailyMail.com and the New Yorker, which have extensively covered the blood testing scandal she is engulfed in.  

They also called for prospective jurors to be asked whether they have seen critical documentaries like HBO¿s The Inventor: Out for Blood in Silicon Valley

They also called for prospective jurors to be asked whether they have seen critical documentaries like HBO’s The Inventor: Out for Blood in Silicon Valley

And her lawyers also asked to know if any jurors take medications such as Xanax – an anti-anxiety medication which can cause drowsiness – which could impede their ability to hear the case.  

The questionnaire was first reported by The Wall Street Journal

Federal prosecutors assigned to the case slammed Holmes’ questionnaire as ‘far too long, deeply intrusive in unnecessary ways, argumentative, [and] repetitive.’ 

The 45-page questionnaire quizzes prospective jurors on whether they know of family members or close acquaintances who have experience with 26 different professional fields and government agencies.

Prospective jurors are also asked if their spouses are employed and whether they have ever been fired from a job. They are also asked if their loved ones have ever belonged to certain organizations and groups. 

Would-be jurors are also asked in the questionnaire if they subscribe to blogs, podcasts, or newsletters from journalists and media figures who have covered the Theranos case extensively.

The questionnaire specifically lists some 50 different media organizations, including DailyMail.com, TechCrunch, Engadget, USA Today, Business Insider, Law360, and The New Yorker.  

Prospective jurors are also asked to indicate their television viewing habits and whether they subscribe to streaming services like Hulu, Netflix, or HBO.

The questionnaire asks prospective jurors if they have seen Theranos-related documentaries produced by ABC News as well as a TED Talk by Erica Cheung, whose lecture was titled ‘Theranos, Whistleblowing and Speaking Truth to Power.’

Federal prosecutors assigned to the case slammed Holmes¿ questionnaire as ¿far too long, deeply intrusive in unnecessary ways, argumentative, [and] repetitive.¿

Federal prosecutors assigned to the case slammed Holmes’ questionnaire as ‘far too long, deeply intrusive in unnecessary ways, argumentative, [and] repetitive.’

Prospective jurors are also asked if their spouses are employed and whether they have ever been fired from a job. They are also asked if their loved ones have ever belonged to certain organizations and groups

Prospective jurors are also asked if their spouses are employed and whether they have ever been fired from a job. They are also asked if their loved ones have ever belonged to certain organizations and groups

Prospective jurors are also quizzed about their social media habits

Prospective jurors are also quizzed about their social media habits 

The questionnaire specifically lists some 50 different media organizations, including The Daily Mail, TechCrunch, Engadget, USA Today, Business Insider, Law360, and The New Yorker

The questionnaire specifically lists some 50 different media organizations, including The Daily Mail, TechCrunch, Engadget, USA Today, Business Insider, Law360, and The New Yorker

The questionnaire asks prospective jurors if they have seen Theranos-related documentaries produced by ABC News as well as a TED Talk by Erica Cheung, whose lecture was titled ¿Theranos, Whistleblowing and Speaking Truth to Power.¿

The questionnaire asks prospective jurors if they have seen Theranos-related documentaries produced by ABC News as well as a TED Talk by Erica Cheung, whose lecture was titled ‘Theranos, Whistleblowing and Speaking Truth to Power.’

Holmes’ attorneys write in the filing that the questions are necessary to root out biased candidates from the jury pool.

‘Ms. Holmes is routinely referred to in derisive and inflammatory terms that are directly relevant to the wire-fraud charges in this case,’ the lawyers wrote in the filing submitted to San Jose federal court last week.

The filing notes that more than 400,000 results appear for Google searches of ‘Theranos AND Holmes.’

Holmes and Balwani are said to have falsely claimed Theranos could revolutionize medical lab testing with technology that could enable a wide array of tests with a few drops of blood.  

Holmes, who started Theranos at the age of 19 after dropping out of Stanford, was widely celebrated in tech circles until it became clear that many of the claims about the company’s supposedly revolutionary blood test were bogus. 

It was revealed Theranos had been completing blood analysis on regular testing machines, rather than using the revolutionary new technology its bosses touted.  

Also charged with fraud related to Theranos is Holmes' ex boyfriend and COO Ramesh Balwani (pictured) His trial will be held separately and is scheduled for early next year

Also charged with fraud related to Theranos is Holmes’ ex boyfriend and COO Ramesh Balwani (pictured) His trial will be held separately and is scheduled for early next year

Holmes attracted investors and venture capital firms and the company was valued at $9billion before crashing in 2015. 

Prosecutors submitted a filing in January claiming that Theranos executives destroyed data that proved their blood-testing product was inaccurate. Knowingly misleading investors by providing false data is a federal crime.

The company knew about its inaccurate testing data that was collected over a period of three years, according to The Register.

The data ‘was stored on a specially-developed SQL database called the Laboratory Information Systems (LIS),’ according to the court filing.

The database ‘even flagged blood test results that might require immediate medical attention, and communicated this to the patient’s physician’.

Before allegations of fraud surfaced, she was celebrated as a young visionary and success story. She became known for her black turtlenecks, once boasting that she owned more than 150 of the items in an effort to emulate Apple’s Steve Jobs.  

Earlier in May, Davila ruled that prosecutors in the case will be allowed to present evidence to the jury highlighting Holmes’ glamorous lifestyle. 

Her attorneys tried to keep her luxurious CEO lifestyle out of her upcoming trial because it ‘risks invoking class prejudice.’

The government has alleged that before Holmes’ fall from grace she employed personal assistants to run her luxury shopping sprees, traveled by private jet and stayed at exclusive hotels.

Prosecutors have argued that such a lifestyle was fueled by her fraud.

Holmes' case was originally scheduled to go to trial July 28, 2020 but it was postponed three times  due to the pandemic. It was postponed again in March after she and Evans (pictured) announced they were pregnant

Holmes’ case was originally scheduled to go to trial July 28, 2020 but it was postponed three times  due to the pandemic. It was postponed again in March after she and Evans (pictured) announced they were pregnant 

But her lawyers wrote that she earned a salary and benefits commensurate with her position as the blood-testing startup’s CEO.

They argue that the evidence says nothing about her motive, ‘if it did any CEO could be said to have a motive to commit fraud.’

‘Rather the real value of the evidence to the government is to paint a (misleading) picture of Ms Holmes as a woman who prioritized fashion, a luxurious lifestyle, and fame, and to invite a referendum on startup and corporate culture,’ the attorneys said. 

Her appearance on May 4 marked the first time in more than a year that Holmes had been seen at court.

Prior to the latest postponement for her pregnancy, her trial date had already been pushed back three times as a result of the COVID-19 pandemic – and the news that it would have to be delayed once again was met with backlash from prosecutors. 

Holmes was indicted in 2018 and her federal trial in San Jose, California, was originally scheduled for July 28, 2020. 

Assistant US Attorney Robert Leach said that prosecutors, who were told about Holmes’ pregnancy via Zoom, were ‘frustrated and disappointed’ to learn about it at such a late date, CNBC reported. 

Lawyers for Holmes informed the government on March 2 of the pregnancy, according to the filing. 

Her husband is the heir to the Evans Hotel Group, which was founded by his grandparents William and Anne Evans in San Diego in 1953. Currently, the business has three resort properties on the West Coast. 

Holmes faces up to 20 years in prison as well as fines and restitution if convicted

Holmes faces up to 20 years in prison as well as fines and restitution if convicted 

Evans graduated from MIT in 2015 with a Bachelor’s Degree in Science and Economics, at which point he took a post at LinkedIn. 

In 2017, he became the director of special projects at Luminar Technologies, a company which develops sensors for driverless cars, although it appears he left the company in 2019. 

Prosecutors allege that Theranos executives knew their product was only half-reliable, as the failure rate for the tests was 51.3 per cent.     

A notoriously secretive company, Theranos shared very little about its blood-testing machine with the public or medical community. 

Holmes said she was inspired to start the company in response to her fear of needles. 

But an investigation by The Wall Street Journal in 2015 found that Theranos’ technology was inaccurate at best, and that the company was using routine blood-testing equipment for the vast majority of its tests.  

Federal authorities also allege Holmes and Balwani used funds from investors to subsidize an extravagant lifestyle while peddling a fraudulent product. 

Balwani’s case is being handled separately and his trial is scheduled to begin January 18, 2022.      

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