Kudos, To “Billy The Kid” — He Was First To See That Ms. Holmes Expects Jurors To Answer Over 90 Very Invasive Questions… Before Serving.

Billy saw this development while I was busy on other billable matters, but it is fascinating — in the hubris it reveals about Ms. Holmes, primarily.

Her lawyers expect that potential jurors will answer questions about their medications, whether they’ve ever called in to a radio show, their social media use, their blogging habits, their feelings about various tech advances… and on and on.

Of course — we will confidently predict that as to about 90 per cent of what they want to ask (outside of the fairly standard criminal pre-trial questions about actual bias), the able Judge Davila in San Jose will simply say… no.

It seems Ms. Holmes believes jurors are akin to her old employees: she thinks they are there to serve… her interests. Not so.

Jury duty is a PUBLIC service — to see, in criminal trials especially — that justice is done. Objective justice. The public owes jurors great thanks for the hard work they do. Most people will, studies repeatedly show, take jury duty very seriously — and they will endeavor mightily to be fairly guided by the evidence in court. No more — no less. And here, the evidence will be… overwhelming. She will be convicted.

Of course, Ms. Holmes is here an Ayn Randian form of cynic — and with the proffered thick passel of papers, she wants to argue (as Martin did) that she cannot get a fair trial anywhere in the US. That’s simply… bunk. [She won’t think it is fair, but it will be. She is going to be convicted on the evidence. There is just so, so much of it, due to her endless attempts to garner public attention — again, just like Martin, but on a much grander scale.]

So, each juror may be asked live, about information as it comes up, by the judge — but to use a forty-five-plus page document seems designed to try to drive jurors away… and is thus both cynical as it is wrong-headed. She is no special felony defendant; she should be treated as all others.

So it won’t happen; Judge Davila won’t allow it. And Elizabeth Holmes is almost certainly not the most notorious person ever tried in Califonia. Recall Charles Manson — though he was well south of San Jose, in LA. Justice prevailed there. Here as there… the truth will out, and the jury will act.

Onward… grinning — have a peaceful and restful long traveling weekend, one and all.

Much Longer (100 Page) Opinion — Mostly Denying Ms. Holmes’ Motions Was Published Over The Weekend… In San Jose.

Again, this is properly a mere tangent to our main narrative — but it makes official many of the rulings from the bench from my live blogging, about a month ago — that most of the government’s proposed evidence at trial will in fact be admissible against Ms. Holmes. Not surprising, but the government is not in the habit of admitting irrelevant or unduly prejudicial evidence. And of course, when people like Martin or Ms. Holmes act in unlawful ways, it is not wrong to offer evidence to prove that fact — as to their state of mind, and knowledge.

In any event, here is the full 100 page PDF version from Saturday’s opinion — and a few of the bits I found most interesting:

…The Court finds that evidence arising out of the FDA inspection of the Theranos lab in California is relevant as to Holmes’s state of mind, intent, and knowledge regarding the alleged misrepresentations about the accuracy and reliability of Theranos’ blood tests. The FDA inspection evidence would have a tendency to show knowledge of issues with the nanotainer and failings in Theranos’ technology. This, in turn, could support the Government’s theory of the case: that Holmes made representations that Theranos could provide accurate, fast, reliable, and cheap blood tests and test results despite knowing that their technology was not capable of doing so….

The Court finds that the FDA inspection evidence is not propensity evidence, but rather evidence that is probative of Holmes’s state of mind, intent, and knowledge. Specifically, the evidence has a tendency to show Holmes’ state of mind regarding Theranos’ interactions with the regulatory agencies, the extent to which Holmes knew or should have known that Theranos was failing to meet certain federal regulations, and whether Holmes intended to mislead investors regarding the accuracy and reliability of Theranos’ technology. The Court declines to exclude the evidence on Rule 404 grounds….

The Government is not precluded from its use of Holmes’s compromise negotiations with the SEC as conduct or statements made during settlement negotiations with a public entity exercising its enforcement authority, as those communications do not fall under Rule 408’s prohibitions. Finally, the Court reserves judgment on the remainder of Holmes’s motion as it pertains to the Government’s desire to potentially use settlement evidence for impeachment purposes….

The Government alleges that Holmes committed fraud by making misrepresentations about the accuracy and reliability of Theranos’ tests, inducing customers to pay for tests. Testimony describing patients’ inaccurate test results, therefore, tends to prove the fraud by showing that patients did not get what they paid for. Although these eleven inaccurate results may not amount to statistical proof that the Theranos tests were generally inaccurate, the Court finds that consideration to affect the weight of the evidence, not its admissibility. Evidence of even one inaccurate result tends to show that Theranos was producing inaccurate results, even if it does not fully prove the point. Holmes is correct to conclude that this evidence does not demonstrate that Theranos tests produced inaccurate results at an unacceptable rate, but that does not render the “anecdotal” testimony irrelevant….

Onward, once again… grinning — and keeping a weather eye on the New York state court derivative suit’s dockets (as to Martin), per an erstwhile commenter’s suggestion, below.

As Expected, Ms. Holmes Has Lost On Her Motion To Exclude Government’s Expert Witness Opinions, On Her Supposed Medical “Device”.

Well, this is a scant surprise moment, as we did say as much, when we live blogged the three days of hearings on this and other “admissibility” topics, a few weeks ago.

But the able USDC Judge Edward Davila in San Jose has entered a memorandum opinion and order, confirming that the government will be allowed to get their expert’s opinions in front of the jury at trial, on the issues of whether Ms. Holmes device was ever “market ready” — or even capable of yielding consistently accurate results on a wide array of claimed screens — from as little as a single drop of blood. The full 12 page opinion, as a PDF, entered overnight — and a bit:

…The Court disagrees with Holmes’ characterization of what evidence may be helpful to the jury. Dr. Master’s testimony need not provide complete or even direct evidence of Holmes’ guilt to be helpful to the jury. United States v. Christian, 749 F.3d 806, 811 (9th Cir. 2014) (“a district court deciding whether to admit expert testimony should evaluate whether that testimony ‘will assist the trier of fact in drawing its own conclusion as to a fact in issue’ and should not limit its consideration to ‘the existence or strength of an expert’s opinion’”), overruled on other grounds by United States v. Bacon, 979 F.3d 766 (9th Cir. 2020) (emphasis in original). Although Dr. Master does not specifically conclude that Theranos’ failure to abide by industry standards actually affected test results, his testimony about the purpose and effect of industry standards is nonetheless helpful….

Thus, the Court finds Dr. Master’s opinions about industry standards relevant to determining whether Theranos tests were consistently accurate and reliable, and helpful to the jury in assessing whether Holmes’ statements were misleading. Accordingly, Holmes’ motion is DENIED as to these opinions….

The Court is satisfied that Dr. Master’s reliance on the CMS Report is scientifically sound. The CMS Report contains a significant amount of quality control data from Theranos assays, which is precisely the type of data that Dr. Master asserts is necessary to assess the accuracy of a given blood test. Thus, the Court finds Dr. Master’s testimony and opinion as to the Vitamin D assay to be reliable….

This will put the lie to Ms. Holmes so-called “Silicon Valley defense“: that everyone in business in Silicon Valley bluffs about how great their product or service is, or will be. Its just the way business people talk in tech, she will argue. But in her case, she lied in medical / governmental filings, and as a result, patients could be injured or even die, due to misdiagnoses, as a result of these lies. [That is to say — this was not just some new goofy instant internet video clip sharing tech / service — for learning kids’ dance moves.] That makes out a 20-year felony.

To be clear, as to certain other assays, beyond Vitamin D, there will be another hearing scheduled — called a Daubert hearing — to have the proffered prosecution expert explain his methodology in coming to the opinion that the device would not produce reliable results on those other screens / assays. But the government will be able to get his expert opinion introduced into evidence (i.e., in front of the jury) — that the device was not “market ready” — at any of the times Ms. Holmes made public statements to Department of Defense officials (to get Theranos on a list of US Army approved research initiatives / fundings), and statements to investors, directly, to the contrary.

This will be fascinating — and we are now up to about 25 sealed filings which presumably relate to Ms. Holmes purported mental health defenses.

We shall keep a weather eye on that horizon, as well.

[O/T: Geology Edition] Quasi-Crystals — Made Only in the Furnaces of Nuclear Blasts… AMAZING. H/T Roger Penrose: Tangent…

The long ago inner-miner of my youth, is forever looking down, as I walk nature’s manifold trails… looking, at the rocks my foot just might scuff free, from the earth. This would be — at right (in my fondest dreams), what I might have once been lucky enough… to kick free.

Here’s the story — from the journal Nature, from early this morning:

…In the aftermath of the Trinity test — the first ever detonation of a nuclear bomb, which took place on 16 July 1945 at New Mexico’s Alamogordo Bombing Range — researchers found a vast field of greenish glassy material that had formed from the liquefaction of desert sand. They dubbed this trinitite….

The plutonium bomb had been detonated on top of a 30-metre-high tower, which was laden with sensors and their cables. As a result, some of the trinitite that formed had reddish inclusions, says Steinhardt. “It was a fusion of natural material with copper from the transmission lines.” Quasicrystals often form from elements that would not normally combine, so Steinhardt and his colleagues thought samples of the red trinitite would be a good place to look for quasicrystals…

The previously unknown structure [at right], made of iron, silicon, copper and calcium, probably formed from the fusion of vaporized desert sand and copper cables. Similar materials have been synthesized in the laboratory and identified in meteorites, but this one, described in Proceedings of the National Academy of Sciences on 17 May, is the first example of a quasicrystal with this combination of elements….

I go now, off to bed; the sheets are chanting my name, sweet and low — but chanting just the same… be excellent to one and all you meet tomorrow — and every day, hence.

नमस्ते

[O/T: Naming Rights] The REAL Lady A, Anita White — Blues Artist, Will Litigate Her Right To Use Her Own Name On Stage, In The Nashville Federal Courts, For Now…

As is often true, the trial level civil federal courts favor people with deep pockets, on purely procedural matters. This is one of those times. [Ms. White should be able to defend herself, in a forum closer to her home. But no matter, she will prevail.]

Anita White, a resident of the State of Washington (and she has a pending federal civil action in Seattle, too — but now that one will likely be stayed or transferred, to Nashville), is now going to be required to defend a suit brought by a multi-Platinum selling, all-white country band, on that band’s home turf — in Nashville. Ms. White will have to pay to have her witnesses, lawyers and herself flown into Nashville on a regular basis — just to keep using her own name, in blues performances, locally around the northwest, and southeast US.

Here’s this morning’s 20 page USDC ruling — and I expect Ms. White will win the right to keep using her common law trademark name, since it predates the country act’s use by over a decade.

To say that the wealthy country act baited Ms. White into the courts in Tennessee is no exaggeration. And we do know that her now very able trial counsel (at the Cooley firm) has taken the matter, on a pro bono basis (should she lose). But if she wins, they will recover perhaps over a million dollars in attorneys’ fees, from the country act and its record label — since the evidence clearly supports a finding of willfulness, in the infringement (and chicanery to draw her into accepting Tennessee as a suitable forum).

Do stay tuned — but in a year or so, we expect Ms. White will have prevailed. And if you want to help her, do go buy her recordings. Boycott the country act, as well. Onward, smiling — on a perfect Friday afternoon. . . . with more bike footage ahead!

नमस्ते

We Will Have To Wait Now — For Holmes’ July Trial Date…

Well…. Likely the most interesting portion of the three long days of hearings, in San Jose’s federal district court before the able USDC Judge Davila — as to Ms. Holmes’ motions, this week… lasted only 12 minutes, at around 8:08 PM New York time, last night.

And the substance of those 12 minutes will remain sealed (at least) until the trial is well-underway. That is so, because these discussions dealt with her private health information. No one (other than the opposing AUSAs, and their rebuttal experts) may view these materials and proffers, until she formally consents to make it all (or portions of it) public at trial. Here is the relevant bit, from the order last night — the final day of these hearings:

…Hearing from 5:08-5:20 pm is SEALED – The Court ordered this portion of the transcript ordered [sic — placed?] UNDER SEAL and may not be obtained without Court order.…

So… now we wait, but she had indicated in open court that she would introduce evidence of a mental health condition, which caused her to seek the approval of older men, and to do so to the detriment of her own enlightened self-interests. We shall see, and the trial will now occur after she delivers her first child, likely with jury selection on July 13, 2021.

So — stay tuned. We do wish her precious new life only the best of everything — even if the baby will likely be without mom for a long stretch of time, or incarcerated along with her, perhaps (in a special care facility)… depending on the father’s wishes. We shall see, but America is not as progressive as Europe — in modifying incarceration conditions for new moms. In fact, at the Community Prisoner Mother Program in Pomona, California (should she qualify for that facility), she might be able to keep baby with her, for up to six years of her sentence. The child would have to go to live with dad, once school-aged.

Now you know — onward — grinning, despite these hard conditions. One genuinely hopes she didn’t get pregnant, primarily to get placed in the more relaxed mom-baby units of the Bureau of Prisons. But I seriously doubt it will work to allow her to avoid jail time, altogether.

It will be interesting to see any prosecution “impeachment” evidence on that score, should she argue for no jail — as a new mom.

[U: End of Day] Holmes Hearings Day Two: Live Blog…

We are underway. Ms. Holmes wants to argue that the US Attorneys, FBI and DoJ coordinated with CNN (among others) in making the charging decisions.

The AUSAs first say that did not happen — and arguing that the press helped shape the indictment against Ms. Holmes should not be something put before the jury.

Ms. Holmes’ counsel say they merely want to argue that journalists were led by competitors of Theranos, and may have shaped the charges. And defense wants to cross examine witnesses who may have been part of that.

USDC Judge Davila asks is there any evidence that the AUSAs coordinated with journalists or competitors? Holmes’ lawyer says he’s seen none of that.

So, Judge Davila says he won’t let the defense argue points for which there is no evidence. So, the able judge will rule at trial as needed on this.

Next issue — AUSAs move to prevent defense arguing that Ms. Holmes had a belief that the fraud victims would eventually be repaid. That (just as in Martin’s trial!) is no defense to a felony of defrauding investors. Since the law in the Ninth Circuit is clear, Holmes may not argue that she wanted to repay fraud victims (and, particularly since she has not done so).

A good faith belief that some of her statements were true, when made, is allowed as argument — per defense counsel — but as AUSAs point out, it may be impeached by the proof (i.e., emails and texts) that she knew she was lying in nearly real time.

Judge Davila says will handle it at trial, as appropriate.

Next issue: Ms. Holmes is seeking to limit testimony of Dr. Steven Master (phonetic), the government medical testing expert. Judge Davila will rule that he may speak to finger stick technology generally, and industry practices… as well as on the supposed assays of various vitamins and cholesterol in sampled blood drops. But the judge might limit him on potassium and sodium chloride, and a few other assays… “we may need to hold a separate Daubert hearing on those two” (and other) assays, he says.

Defense counsel suggests that this would be reason to strictly limit his testimony, especially as to HIV+ status results in the Theranos’ test technology. [Condor observes that this would not negate the earlier testimony that would say on at least three assays… the Theranos / Holmes’ tech did not produce reliable results.]

BREAK — on a call from client — will miss twenty minutes an hour of testimony, now…. [still on calls.]

I’ve dipped back in, to hear the AUSAs argue that when CMS makes specific findings, on a formal inspection — and then Ms. Holmes directly admits in various public fora, that CMS’s factual assertions are correct… she is foreclosed from later saying CMS’s findings are inaccurate, and thus inadmissable as hearsay. They’ve become admissions of Ms. Holmes — not hearsay.

In fact, she then shuttered the lab — tacitly admitting the problems couldn’t be fixed.

I’ve got to jump again — but this is going to go the same way Martin’s went. Ms. Holmes is at best clutching at straws. We will try to live blog tomorrow as well — the concluding day, which may get into the mental health issues she hopes to put before the jury.

Updated @ 8 PM EDT: here are the rulings, just entered in SanJose, from Judge Davila’s hearing, today — as reflected in the docket:

…Dkt. 588 Government MIL #4 – DEFERRED;
Dkt. 588 Government MIL #5 – GRANTED the Court will follow the law;
Dkt. 560 Holmes’ MIL – SUBMITTED;
Dkt. 574 Holmes’ MIL/Dkt. 588 Government MIL #6 – SUBMITTED;
Dkt. 572 Holmes’ MIL – SUBMITTED;
Dkt. 573 Holmes’ MIL – SUBMITTED;
Dkt. 575 Holmes’ MIL – SUBMITTED;
CASE CONTINUED TO: May 6, 2021 1:00 P.M. for Further Motions in Limine Hearing….

Onward… grinning; ever grinning.

I’ll Try To Listen In Tomorrow… On Holmes’ Continuing Motions.

As luck would have it, I got tied up and missed all the fun, today.

I’ll try to catch a good portion of it tomorrow, starting at Noon Eastern; 9 AM PDT. Here we see from tonight’s order that the government — in the main — won the right to present the evidence it wants, subject to warnings, and specific rulings, during the trial.

In contrast, Ms. Holmes’ arguments (to keep items of evidence out) have been largely deferred, to closer to trial.

…The Court heard oral arguments and provided the following rulings:

Dkt. 588 Government MIL #1 – GRANTED – as to evidence re start ups court to rule on as evidence is introduced;

Dkt. 588 Government MIL #2 – GRANTED with Court cautioning comments to be made in closing arguments before the Jury.

Dkt. 588 Government MIL #3 – DEFERRED;

Dkt. 563 Holmes’ MIL/Dkt. 588 Government MIL #10 – SUBMITTED;

Dkt. 561 Holmes’ MIL – SUBMITTED;

Dkt. 562 Holmes’ MIL – SUBMITTED;

Dkt. 570 Holmes’ MIL – DEFERRED;

Dkt. 569 Holmes’ MIL – SUBMITTED.

CASE CONTINUED TO: May 5, 2021 9:00 A.M. for Further Motions in Limine Hearing….

Onward, grinning… she will need the aid of Rey, if she is to prevail. Which is to say… she won’t.