Elizabeth Holmes, Theranos Inc. , left, arrives in federal court in San Jose, California, on Tuesday, October 12, 2021.
David Paul Morris | Bloomberg | Getty Images
San Jose, Khalif. A third juror in the criminal trial, Elizabeth Holmes, was dismissed on Friday for what the judge described as “good cause.” That leaves only two alternatives in a trial that is expected to run through December.
U.S. District Judge Edward Davila told prosecutors and Holmes’ defense attorney that he received an email from juror number 5 on Friday morning. The judge, with Jeffrey Schenk, the assistant US attorney, and Kevin Downey, Holmes’ defense attorney, spoke with the juror in the room.
“The court found good reason to excuse the juror,” Davila told the court on his return. No explanation was given for the juror’s exemption.
An alternate juror has been selected to join the main platform. The jury that decides Holmes’ fate consists of eight men and four women.
“The juror raised the case on their own, so they began to believe that their ability to act as an impartial juror was compromised,” Danny Cefalos, an attorney and legal analyst with NBC News, said in an interview. “It seems the court agreed with them,” said Cephalos, who was following the case but was not present in the courtroom.
Holmes’ landmark trial began in San Jose seven weeks ago. The second juror was dismissed two weeks ago after she revealed that, due to her Buddhist beliefs, she could not, in good conscience, return a ruling that might send Holmes to prison. Last month, a 19-year-old juror was dismissed due to financial difficulties.
Missing too many jurors leads to the risk of a wrongful trial. However, Cefalos said that according to a federal rule, after a jury has begun deliberations, a judge may allow an 11-person jury to make a verdict.
Holmes has pleaded not guilty to 10 counts of electronic fraud and two counts of conspiracy to commit telephone fraud. Federal prosecutors allege that Holmes and her co-conspirator, former company chief Ramesh “Sunny” Balwani, engaged in a decade-long multi-million dollar scheme to defraud investors and patients in connection with Theranos’ blood-testing technology.
Holmes and Balwani were indicted in 2018. Her trial has been postponed several times due to challenges related to the pandemic and Holmes’ pregnancy. Al-Balwani, who has also pleaded not guilty, will face a separate trial next year.
Even in the case of wrongful trial, Holmes would not be clear.
“A retrial, which the government will surely do, would again suspend Elizabeth’s life and drain her accounts even more,” Cefalos said. “As much as a wrongful trial is not a conviction, sometimes you’d rather get to judgment.”
Doubt from Pfizer
After the departure of the juror, the podium was taken over by Pfizer’s scientist, Shane Weber. Weber evaluated Theranos in 2008, and reviewed documentation regarding blood testing technology. He later concluded that Pfizer should not pursue a deal with the company.
In the summary of his December 2008 report, Weber recommended that “Theranos have at this time no diagnostic or clinical interest for Pfizer,” but recommended that the company reconsider the matter every six months.
Weber’s report was shown to the jury. Weber wrote in it, “Theranos provided a poorly prepared summary document of its platform for home patient use with antiangiogenic therapies.”
Further, he wrote, “Theranos provided non-informative, incidental, skewed, or evasive answers to a written set of technical due diligence questions.”
Webber told his supervisors in an email in January 2009, that he had spoken to Holmes to explain that Pfizer would not use Theranos home products for patients.
“I was polite, clear, pure and patiently assertive as she retreated,” the email read. “I asked for other names at Pfizer to come close to me but I politely veered.”
Jurors were shown a copy of the Theranos report that Holmes sent to Walgreens executives with the Pfizer logo on it. Weber testified that Pfizer did not consent to the use of its logo in the report.
“Would it be fair to say in 2010 or after Pfizer certified Theranos technology?” asked Robert Leach, the assistant US attorney.
Weber replied, “Ah, no.”
Under questioning, Webber told the jurors that his report on Theranos was never sent to Holmes.
“Keep things a secret”
Also Friday, jurors heard from Brian Tolbert, who invested in Theranos in 2006 and 2013 through Black Diamond Ventures. The company, founded by Chris Lucas, has invested $5 million in the startup.
Tolbert told jurors that there was limited information about Theranos at the time, but “I felt it was a revolutionary technology and wanted to keep it to your advantage.”
“Chris and I wanted more information, more financial information, and more clarity about what was going on,” Tolbert said. “I definitely thought it was intentional that they were trying to keep things a secret.”
Watch: A Theranos insider testifies against founder Elizabeth Holmes