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Elizabeth Holmes' lawyer calls judge's changes to jury questionnaire 'a disaster'

·Reporter
·4 min read
SAN JOSE, CALIFORNIA - JUNE 28: Former Theranos founder and CEO Elizabeth Holmes arrives at the Robert F. Peckham U.S. Federal Court on June 28, 2019 in San Jose, California. Former Theranos CEO Elizabeth Holmes and former COO Ramesh Balwani appeared in federal court for a status hearing. Both are facing charges of conspiracy and wire fraud for allegedly engaging in a multimillion-dollar scheme to defraud investors with the Theranos blood testing lab services. (Photo by Justin Sullivan/Getty Images)
Former Theranos founder and CEO Elizabeth Holmes arrives at the Robert F. Peckham U.S. Federal Court on June 28, 2019 in San Jose, California. (Photo by Justin Sullivan/Getty Images)

A federal judge on Tuesday suggested changes to a proposed jury questionnaire in a criminal fraud case against former Silicon Valley entrepreneur Elizabeth Holmes over her failed blood-testing startup, Theranos.

Prosecutors and lawyers for Holmes sparred over the document in a pretrial hearing Tuesday, ahead of the trial scheduled to begin jury selection Aug. 31. The Holmes defense team had proposed a set of more than 100 prospective jury questions purported to weed out jurors who, based on heavy media coverage, already formed opinions about Holmes — a former media darling whose downfall has been heavily covered.

“I have morphed some of your questions, and I have deleted many questions. I've added some questions,” Judge Edward J. Davila told the lawyers for Holmes. He said he left intact questions eliciting the most “concerning” categories for the defense, related to what prospective jurors learned about Holmes through media.

Some media-related questions were edited to drop references to specific news outlets, the judge said. “Rather than give them a list, I've taken to asking them to take the affirmative duty to inform us,” he said.

Holmes' attorneys objected, arguing that a selected juror could fail initially to recall details of reports they read about Holmes, then later recall information more specifically once the trial is underway.

“That’s a disaster, your honor,” Holmes’ attorney said, arguing that it could give reason for the juror to be kicked off the jury. “I'm not saying that asking specifically about all of these [news] outlets is something I want to do. I just want to ask them specifically what their sources are, so I can know and rule out...resources that they've been reading.”

'Impartiality doesn't require ignorance'

The government disagreed that following media stories about Holmes automatically makes jurors biased.

“Impartiality doesn’t require ignorance,” assistant U.S. attorney Kelly Volkar told the judge. “Even if they did read a story once upon a time, that doesn't necessarily mean that they have retained it, or that they sort of kept any position, any bias, or any prejudgment based on that one article.”

FILE PHOTO --  Elizabeth Holmes, CEO of Theranos, attends a panel discussion during the Clinton Global Initiative's annual meeting in New York, September 29, 2015.  REUTERS/Brendan McDermid/File Photo
Elizabeth Holmes, CEO of Theranos, attends a panel discussion during the Clinton Global Initiative's annual meeting in New York, September 29, 2015. REUTERS/Brendan McDermid/File Photo

Holmes is charged with federal wire fraud and conspiracy to commit wire fraud in connection with her failed blood diagnostics company, Theranos, which raised more than $700 million from investors and was valued at $9 billion before it imploded under regulatory and legal investigations. She has pleaded not guilty.

The quest to find an impartial jury could be a challenging one. The Elizabeth Holmes story spawned intense media coverage, including an HBO documentary called "The Inventor," New York Times best-selling book "Bad Blood," and a podcast called "The Dropout." The actress Amanda Seyfried is even signed on to play Holmes in a new Hulu series, also called "The Dropout."

In a pretrial motion, lawyers for Holmes asked to pose questions beyond those provided in a standardized questionnaire, a common request for defendants who, prior to trial, are exposed heavily to publicity.

Government lawyers called the list too extensive, and contended that roughly half of the questions posed by the embattled former CEO won't help her lawyers identify biased jurors.

“It has about 20 pages of questions,” the judge said of his amended questionnaire. “I know that the defense is concerned primarily with media coverage. Their pleadings suggest that the media coverage has been pejorative as to Ms. Holmes, and that we need to do something to secure a fair jury for her. And that's what I'm trying to do.”

The judge said he would take the attorneys' arguments into consideration before settling on a final version of the questionnaire.

During the hearing, Judge Davila also announced his plans to pose additional questions to prospective jurors. Prosecutors and attorneys for Holmes said they too intended to question prospective jury members, beyond the jury questionnaire.

Davila declined to honor Holmes' request to question potential jurors outside the presence of others in the pool, over concerns their answers could influence each other. Instead, the judge limited the right to engage in independent questioning should the need arise.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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