A federal court judge granted a sweeping list of requests by Theranos founder Elizabeth Holmes for records of how the grand jury that recently indicted her for fraud was selected. She has said in a court filing that she plans to challenge the selection process for the grand jury whose 12-count indictment was filed July 14.
Judge Edward Davila noted in his ruling Wednesday that Holmes’ primary concern was that the coronavirus pandemic might have caused many prospective jurors to be excused from serving, so her grand jury might not have reflected the required cross-section of the community. Holmes’ request cited “the disproportionate medical and economic impact that the Covid-19 crisis has had on certain populations.”
The federal court system’s Covid-19 Judicial Task Force in June issued a report advising courts to expect that more prospective jurors might ask to be excused from serving during the pandemic because of health concerns.
Stanford University dropout Holmes and former Theranos president Sunny Balwani are each charged with a dozen counts of fraud over the defunct Palo Alto blood-testing startup. Davila has scheduled a jury trial to start in March.
Davila in his order went through Holmes’ 21 access requests, rubber-stamping nine because prosecutors didn’t oppose them, then agreeing with Holmes’ arguments in the rest and largely dismissing prosecutors’ objections as insufficient. In approving access to certain jury-selection forms, including questionnaires for screening grand jurors, Davila mandated that they be blank, not filled in.
Among the information the judge ordered released to Holmes and Balwani were documents describing changes to grand jury selection procedures made because of the pandemic, along with guidelines for choosing jurors from a pool, and the number of people selected as potential grand jurors versus the number who served.
The court system’s Covid-19 task force had advised courts to consider bringing in fewer grand jurors than the usual 23 “in order to make a quorum of 16.”
Davila also noted Holmes had withdrawn her 21st request, for grand jurors’ attendance records and reasons for any absences. He left open her ability to renew the request, which she said in a filing that she might do after receiving the other records. The records provided to Holmes and Balwani must not be copied, and must be returned to the court or destroyed before jury selection starts, Davila ordered.
Holmes and Balwani are charged with allegedly 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. The two have denied the allegations, with lawyers for Holmes arguing in a December court filing that the government’s case was “unconstitutionally vague” and lacked specific claims of misrepresentation.
They each face maximum penalties of 20 years in prison and a $2.75 million fine, plus possible restitution, the Department of Justice has said.
