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Law360 (December 2, 2020, 7:54 PM EST) -- A California federal judge told counsel Wednesday he doesn't plan to further delay the in-person criminal jury trial of ex-Theranos CEO Elizabeth Holmes due to the coronavirus pandemic, saying he's "hopeful and optimistic" that the monthslong trial will start March 9 with new courtroom safety protocols in place.
During a status conference held via Zoom, U.S. District Judge Edward Davila repeatedly emphasized that he does not want to push back the fraud trial against the founder of the once-high-flying but now-defunct blood testing startup. The trial, initially slated to begin in August, has already been delayed twice because of the pandemic.
"We will start on March 9," the judge said. "I'm hopeful and optimistic that we will be able to do that. I'm not even going to suggest that we're going to continue that date."
The government hit Holmes and former Theranos Chief Operating Officer Ramesh "Sunny" Balwani with a grand jury indictment in 2018 on charges they defrauded investors, patients, insurance companies and doctors with blood testing technology the pair knew didn't work.
After Judge Davila trimmed some charges in February, he severed Balwani's case from Holmes' trial and scheduled Balwani's trial for April 2021, which has also since been postponed due to the pandemic.
In the status conference in Holmes' case Wednesday, Judge Davila told the ex-CEO's attorneys and federal prosecutors that he wants them to meet and confer about jury questionnaires, because the jury commissioner is planning to send out an initial jury summons on Dec. 30.
The commissioner will then send out a round of questions via SurveyMonkey in February to determine whether potential jurors have health restrictions or time conflicts that could prevent them from serving on the panel, the judge said. Once the jury pool is narrowed, three groups of 20 potential jurors each will report to court and take part in jury selection as needed, the judge said.
Judge Davila also showed the attorneys a map of the courtroom layout that he plans to implement so that jurors, attorneys and witnesses are socially distanced and kept safe.
For example, he said, courthouse staff will get clear face masks and air purifiers for witnesses and create a sanitization protocol for the witness box. At least 14 jurors will be spaced out in the gallery, and the judge noted that the courthouse itself has 13 or 14 air filters to circulate and clean air in the building.
In response to the judge's explanation, Holmes' counsel, Lance A. Wade of Williams & Connolly LLP, asked for guidance on how attorneys should respond to witnesses with health issues or who are over 65 and would have to travel for the trial. The judge suggested recording a video deposition or livestreaming the examination of those witnesses to jurors from a separate, isolated courtroom.
"These are different times and they call for creative solutions," Judge Davila said.
Wade also complained that the government has not closed its ongoing grand jury investigation into Theranos, arguing that prosecutors could unfairly surprise the defense team with new evidence from the probe at trial.
"Frankly, we have no experience with [the government] saying 'we're trial ready' but they're proceeding with a grand jury investigation," Wade said.
Judge Davila replied that he understood the defense's frustration with dealing with late-arriving evidence and Wade's concerns about having to "change saddles on a galloping horse, let alone shoes." Still, the judge noted that the defense team can file a motion if they believe they have suffered any "legal infirmities" due to the ongoing investigation.
The judge added that sometimes criminal investigations continue throughout a trial, but ultimately the charges in Holmes' case have been laid out.
"You know what the case is about, you know what the universe of the case is about, and you'll be able to produce that March 9," the judge said. "Again, it's a serious case but it's a wire fraud case, and wire fraud is one of the most common cases that are tried."
Prosecutors told the judge they expect their case-in-chief will take about eight weeks to complete, but Holmes' counsel said they still expect the trial will run between three and four months, which is the amount of time the defense team had initially estimated before the judge severed Balwani's case from Holmes' trial.
At the end of the hearing, the judge said he plans to set another status conference before Dec. 30.
The government is represented by John C. Bostic, Jeffrey Schenk, Robert S. Leach and Vanessa Ann Baehr-Jones of the U.S. Attorney's Office for the Northern District of California.
Holmes is represented by Kevin Downey and Lance A. Wade of Williams & Connolly LLP.
The case is U.S. v. Elizabeth Holmes et al., case number 5:18-cr-00258, in the U.S. District Court for the Northern District of California.
--Editing by Aaron Pelc.
For a reprint of this article, please contact reprints@law360.com.
