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Elizabeth Holmes defense accused of 'gamesmanship' for trying to weed out jurors

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·Reporter
·4 min read
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Theranos founder Elizabeth Holmes exits Robert F. Peckham U.S. Courthouse with her attorneys after the first day of federal court hearings, in San Jose, California, U.S. May 4, 2021.  REUTERS/Kate Munsch
Theranos founder Elizabeth Holmes exits Robert F. Peckham U.S. Courthouse with her attorneys after the first day of federal court hearings, in San Jose, California, U.S. May 4, 2021. REUTERS/Kate Munsch

A battle over who ends up on the jury that decides the fate of former media darling and Silicon Valley entrepreneur, Elizabeth Holmes, is heating up in the months before her criminal trial is set to begin.

In a motion filed Monday, federal prosecutors accuse Holmes’ of “gamesmanship” for requesting that the court authorize 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, and to reveal if their backgrounds are connected to topics central to her case.

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 to the charges.

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."

Theranos founder Elizabeth Holmes arrives at the Robert F. Peckham Federal Building to attend a federal court hearing in San Jose, California, U.S. May 4, 2021.  REUTERS/Kate Munsch
Theranos founder Elizabeth Holmes arrives at the Robert F. Peckham Federal Building to attend a federal court hearing in San Jose, California, U.S. May 4, 2021. REUTERS/Kate Munsch

Holmes’ request to pose questions beyond those provided in a standardized questionnaire is common for defendants who, prior to trial, are exposed heavily to publicity. However, government lawyers contend that just half of the questions will actually help her lawyers identify potentially biased jurors.

“While the government agrees that the court should...ensure pretrial publicity does not result in a biased jury and adequately screen for any unique COVID-19 complications, [Holmes’] proposed questionnaire goes far beyond that,” the government’s motion argues. 

The government contends the questions are too long, too invasive of privacy, and do more to potentially bias jurors in Holmes’ favor than to aid in selecting an impartial group.

Specifically, prosecutors want to bar questions about the types of investments and health insurance that prospective jurors hold, along with questions about their social media accounts. Prosecutors also want to exclude questions about their posts on social media and blogs, as well as whether they frequently watch Hulu and Netflix (NFLX), and their impressions on the fairness and accuracy of media.

“Defendant’s questionnaire appears designed — not to obtain a fair and impartial venire [a panel from which a jury is drawn] — but to isolate jurors that fit a certain profile she considers favorable,” prosecutors added.

In a separate filing arguing for the extensive list of questions, defense lawyer Richard Cleary stressed the publicity surrounding Holmes case, as well as media reports suggesting a decline in sentiment towards startup founders and particularly those based in Silicon Valley.

A query using the search terms “Theranos” and “Holmes,” Cleary wrote, returned 4,680 results for news reports published from June 14, 2018 to June 7, 2021, according to LexisAdvance. When filtered for “negative personal news” Lexis designated 2,277 as such, and filtered for “negative business news” the platform designated 1,239.

A Google search of Facebook (FB) for the same timeframe generated 5,300 results, Cleary said. A Google (GOOG, GOOGL) search of Twitter (TWTR) for the terms resulted in 14,600 results. Adding the word “fraud” to the Google Twitter site search, Cleary said, returned 33,400 results.

At the foundation of the dispute over jurors is the constitutional right for defendants to be tried by an impartial jury, guaranteed by the Sixth Amendment.

In addition to expanded jury questions concerning proposed jurors' media consumption, social media participation, investing background, and involvement in startups, prosecutors also rejected Holmes’ request to pose questions related to COVID-19 that differ from those already used in other cases.

Holmes’ trial is scheduled to begin jury selection on Aug, 31 and is expected to last at least 13 weeks.

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

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