Elizabeth Holmes, founder of Theranos Inc., will appear in federal court in San Jose, California on Tuesday, October 12, 2021.
David Paul Morris | Bloomberg | Getty Images
SAN JOSE, CALIF. – A popular puzzle game has dismissed a third juror in the Elizabeth Holmes trial after she admitted playing it during testimony in order to keep her focus.
According to a court record, the jury kept Sudoku in her court-issued notebook and played it as a testimony for about seven to ten days.
“Did you play this sudoku?” U.S. District Court Judge Edward Davila questioned juror # 5 while in the chambers.
“I have Sudoku, but I don’t mind listening,” said the judge. “I’m very fidgety so I have to do something with my hands. So I’ll be crocheting at home while I watch or listen to TV.”
The shake leaves only two proxies in a process that is expected to last through December.
On Friday morning, Davila informed Holmes prosecutors and defense lawyers that he had received an email from a jury. The judge, along with Jeffrey Schenk, a US assistant attorney, and Kevin Downey, a defense attorney for Holmes, spoke with the jury in chambers.
“The court found a good reason to excuse a juror,” said Davila after his return in the courtroom. There was initially no explanation for the jury’s apology.
In the chambers, Davila asked the jury, “So did that distract you from listening?”
“No,” said the juror.
“Did you see and keep track of everything that was going on in the courtroom?” asked Davila. “Oh yes, definitely,” said the judge.
An alternate juror was selected to join the main bank. The jury that will decide the fate of Holmes consists of eight men and four women.
“This could have been a case where a juror told another juror who was not taking the trial seriously,” Danny Cevallos, an attorney and legal analyst with NBC News, said in an interview. “As crazy as it sounds, the jurors get tired when the exams drag on. Sometimes they turn to something like sudoku or even fall asleep and that can disqualify them from being a juror.”
Holmes’ high profile trial began in San Jose seven weeks ago. The second juror was dismissed two weeks ago after revealing that her Buddhist beliefs made her unable to respond in good conscience to a verdict that could potentially land Holmes in jail. Last month, a 19-year-old juror was fired because of financial hardship.
If you lose too many jurors, you risk a false trial. However, Cevallos said that under federal regulation, after a jury begins deliberations, a judge can allow an eleven-person jury to pass judgment.
Holmes has pleaded not guilty in ten cases of transfer fraud and in two cases of conspiracy to commit transfer fraud. Federal prosecutors accuse Holmes and her co-conspirator, former company president Ramesh “Sunny” Balwani, of participating in a decade-long, multi-million dollar program to defraud investors and patients about Theranos’ blood testing technology.
Holmes and Balwani were charged in 2018. Her trial has been postponed several times due to pandemic challenges and Holmes’ pregnancy. Balwani, who also pleaded not guilty, will face separate proceedings next year.
Even if it failed, Holmes would not be clear.
“A retrial, which the government would certainly do, would put Elizabeth’s life back on hold and continue to charge her accounts,” said Cevallos. “As much as a wrong trial is not a conviction, sometimes you prefer to come to a judgment.”
After the juror left, a Pfizer scientist, Shane Weber, took the stand. Weber rated Theranos in 2008 and reviewed documents related to the blood test technology. He later concluded that Pfizer shouldn’t get into a deal with the company.
In his December 2008 summary of a report, Weber recommended that “Theranos currently has no diagnostic or clinical interest in Pfizer,” but recommended that the company review the matter every six months.
Weber’s report was shown to the jury. In it Weber wrote: “Theranos has provided a poorly prepared summary document of their platform for home use by patients with antiangiogenic therapies.”
Below he wrote: “Theranos did not provide informative, tangential, distracting, or evasive answers to a written series of technical due diligence questions.”
Weber emailed his manager in January 2009 that he had spoken to Holmes to explain that Pfizer would not use Theranos’ home products on patients.
“I was polite, clear, clear and patiently firm as she pushed back,” the email read. “She asked for other names at Pfizer to approach and I politely declined.”
The jury was shown a version of a Theranos report that Holmes had sent to Walgreens executives with the Pfizer logo on it. Weber testified that Pfizer did not approve the use of its logo in the report.
“Would it be fair to say that Pfizer endorsed Theranos technology in 2010 or after?” asked Robert Leach, a US assistant attorney.
Weber replied: “Uh, no.”
In cross-examination, Weber told the jury that his report on Theranos was never sent to Holmes.
“Keep things under wraps”
Also on Friday, the judges heard from Bryan Tolbert, who invested in Theranos through Black Diamond Ventures in 2006 and 2013. Founded by Chris Lucas, the company invested $ 5 million in the start-up.
Tolbert told the judges that there was limited information about Theranos at the time, but “it felt like revolutionary technology and you wanted to use it to your advantage.”
“Chris and I wanted more information, more financial information, more transparency about what was going on,” said Tolbert. “I certainly thought they were trying to keep things under wraps on purpose.”
SEE: Another Theranos insider testifies against the founder Elizabeth Holmes