Theranos founder Holmes’ trial to go ahead with socially distanced jury: judge

Despite the coronavirus pandemic, the criminal fraud trial of Theranos founder Elizabeth Holmes will go ahead as scheduled before a socially distanced jury at the federal courthouse in San Jose, with the air filtration cranked to its highest level and other precautions in place, the presiding judge said Wednesday.

“It’s going to be a very different trial, of course, in the COVID timeframe,” Judge Edward Davila said during video proceedings. “We just have to strive for the safety of everyone.”

Jury selection is to start March 9, Davila said. The trial, expected to last three to four months, will take place in the large “ceremonial” courtroom at U.S. District Court in downtown San Jose, he said, adding that the room will be reconfigured to keep people apart and he plans to procure clear face masks for witnesses. A San Francisco federal court judge told him such masks had been “completely effective” during a trial, though the proceedings were short, Davila said.

Davila said he intends to equip the witness stand with small, portable filtration units, to supplement the courthouse system, which contains more than a dozen filters and meets the highest Centers for Disease Control standard. “We’ll accomplish as much air filtration and air movement in the courtroom as possible,” he said.

A courtroom map shown by the court clerk identified only 10 spaces in the gallery. Currently, in the San Jose courthouse and other Northern District of California federal courts, only staff, jurors, potential jurors, and people authorized by a judge or court clerk can enter, with the press and public able to access proceedings by teleconference or videoconference.

Davila said protocols will have to be developed for what happens if a trial participant feels unwell, even if an illness appears to be just a cold.

Holmes, a Stanford University dropout who founded the Palo Alto blood-testing startup in 2003, is charged with a dozen felony fraud counts. She and former company president Sunny Balwani are accused of bilking investors out of hundreds of millions of dollars, and defrauding doctors and patients with false claims that the company’s machines could conduct a full range of tests using just a few drops of blood. She and Balwani have denied the allegations.

During Wednesday’s hearing, one of her lawyers, Lance Wade, said he expected some “strong reactions” to trial subpoenas, especially from witnesses over 65 or suffering from health conditions. Davila urged the defense and prosecution to consider having witnesses testify through depositions, video or recordings, though he noted in-person questioning can be important. Witnesses with concerns could be examined in person in a separate room, Davila proposed.

While trials that run four days a week from 9 a.m. to 5 p.m. are not uncommon, doing that for a lengthy trial “would be a very Herculean task for jurors,” Davila said. He suggested the trial might run Tuesdays, Wednesdays and Fridays from 9 a.m. to 3 p.m., with a 30-minute lunch instead of the usual 90 minutes, plus two 10- or 15-minute breaks, and possibly half-day sessions on Mondays and Thursdays. “I want to make sure everyone’s energy is preserved and we have time to accomplish everything,” Davila said.

Davila said he expects the pandemic-related precautions to cause delays amid the trial, for example to sanitize the witness stand between witnesses.

Wade, toward the end of the hearing, expressed concerns that the government is still investigating the Theranos case, producing more evidence and adding witnesses, creating a burden for the defense that threatens Holmes’ right to a fair trial. “What the government is asking of us given the schedule is to continue to shoe a galloping horse,” Wade said.