After multiple delays, the high-profile criminal fraud trial of former Theranos CEO Elizabeth Holmes has been paused after just one day of arguments. Friday's proceedings, which were slated to include testimony from the defunct blood-testing startup's former corporate controller, were canceled after three jurors presented issues, including an exposure to somebody with COVID-19.
The court’s reaction validates concerns expressed in pretrial hearings well before trial began about how to get through a protracted trial alongside ongoing public health risks. Still, at such an early stage, a mistrial remains highly unlikely, according to Michael Weinstein, chair of Cole Schotz's white collar practice and former federal prosecutor.
“At this point I do not expect those concerns to raise mistrial considerations,” he told Yahoo Finance, adding that mistrials are usually triggered by evidentiary or witness issues, rather than juror service concerns.
Holmes, now 37, launched Theranos in 2003 at just 19 years old, with a vision to overhaul diagnostic health care. Over more than a decade, the entrepreneur sold investors on the idea of developing an analyzer, the size of a desktop printer, that could run a suite of common tests on as little as a drop or two of blood taken from a patient's finger.
In 2018, a federal grand jury indicted Holmes and former Theranos COO and president Ramesh “Sunny” Balwani, who was also Holmes' one-time boyfriend, charging them with wire fraud and conspiracy. The indictment claims the pair used Theranos to defraud investors and patients and misrepresented its technology from 2010 to 2015. The charges each carry a maximum penalty of 20 years in prison.
One juror informed the court on Thursday that they may have contacted a person over the weekend who later tested positive for COVID-19, a document filed with the court Thursday evening states. That juror, who like the other jurors was vaccinated and masked in court, is awaiting a COVID-19 laboratory test result.
Judge Edward Davila shuttered planned arguments on Friday out of an abundance of caution and plans to resume court on Tuesday.
While Friday’s cancellation over health concerns is inconvenient in the short-term, Weinstein said, it will not have any long term impact on the trial unless a juror gets too sick to serve on the jury.
“I think, at this point, much of the trial narrative is set in place,” Weinstein said. “COVID will play a background role, but the court will just have to work through those issues, possibly causing some limited delays.”
Gregory Gilchrist, a criminal law professor for University of Toledo College of Law and former federal public defender, said while risk of a mistrial is always present, in Holmes’ case one caused by a dwindling jury has been reduced by Davila’s cautious management of the case that planned for five alternates, rather than the standard two.
“This provides significant breathing room,” Gilchrist said.
'Troubling aspect of federal trials'
Still, another juror’s question emailed to the court’s clerk, and raised during Thursday’s hearing, could rattle both the prosecution and defense. The juror asked whether sentencing in the case would be predetermined based on the charges against Holmes, or instead if jurors would be involved in the decision.
“This may be reading tea leaves, but I would have some concern as a prosecutor that the jurors appear to be expressing some discomfort with their role,” Gilchrist said.
The question could reflect any number of things, he added. Perhaps the juror might be thinking Elizabeth Holmes, guilty or not, should not be sentenced to prison, or should not receive a long prison sentence, according to Gilchrist.
On the other hand, the question could be unsettling to Holmes and her defense team, in that it could imply the juror has already concluded that a sentencing phase will occur.
“This is a fascinating, and some would say troubling, aspect of federal trials. Basically, all federal jurors should understand that federal sentences are severe by design, and when a jury convicts it is subjecting the defendant to a harsh, some would say draconian, punishment system over which they will have no control,” Gilchrist said.
On Wednesday, still another juror raised a possible conflict. That juror's employer said they wouldn't pay her during jury duty, and that she needed the income to support herself and her mother. (Federal jurors receive a mere $50 a day in pay.) The judge asked her to request an adjusted work schedule.
Retired judge Hon. Mark Drummond, who now serves as executive and judicial director for New York University School of Law's Civil Jury Project, agreed that, for now, risk of a mistrial remains at bay.
"It appears that the judge has covered any eventuality by empaneling five alternate jurors," Drummond said. "Accordingly, the risk of a mistrial is low."
Alexis Keenan is a legal reporter for Yahoo Finance and former litigation attorney. Follow Alexis on Twitter @alexiskweed.