July 7 Is Next Daubert Hearing — For Ms. Holmes…

While there was a status call last evening, nothing of much note happened on it, in San Jose. The parties will be ready to argue about Dr. Masters in about ten days’ time.

To be sure, we will listen in on the July 7 Daubert proceedings. By then, it is likely that Ms. Holmes will have delivered, if I’ve done my math correctly.

…Defendant is present, out of custody, appears via audio Zoom and consents to the proceeding being held via video. Hearing held.

The Court vacates the Daubert hearing as to Dr. Master scheduled for 6/30/2021.

Counsel shall meet and confer and consult with the courtroom deputy for a new hearing date.

NEXT HEARING DATE: July 7, 2021 10:00 A.M. for Defendant’s Motion to Suppress Evidence via Zoom Webinar remotely….

Onward… grinning — ever grinning.

Holmes Update: Her Latest Attempt To Strike Expert Testimony Will Fail…

To catch you up on this derivative, ancillary narrative arc [to Shkreli’s proper, to be sure — though he repeatedly sought to court her (see archive graphic below, left!), post her fall from grace] of another pharma fraudster, we now learn that she is trying for a second time this afternoon, to strike government expert witnesses who would opine, on a number of variables, that her supposed blood test tech, from a few drops only, never worked in any reliable way — as to most assays.

This is her latest 11 pager, in answer to the prior (better argued) governmental / prosecutors’ filing, responding to her first filing. Hers will not meet with much success, as she asked for this so-called Daubert fight. And now she’s got it.

The able Judge Davila is likely to rule that if the expert strays into impermissible conjecture / non-foundationally grounded hearsay “junk” opinions, he will rein the expert in, during the trial, on an ad hoc basis.

But as an initial matter, the government (he will likely rule, sez Condor) shall be allowed to prove its case with substantial reliance on expert opinions. Opinions to the effect that the tech never worked. And it will introduce her own emails and texts to show she well knew it didn’t work, even as she repeatedly touted it to investors, and regulators.

That’s… securities fraud, at a minimum.

Onward — and she could get something north of eight years, perhaps even fourteen — now that Derek Chauvin saw a ten year enhancement for depravity today — up from 12, to 22.5 years, in the murder of George Floyd.

Yup, I went there. Out.

[Tangent: Evolutionary Life Sciences] This Will Not Dislodge “Lucy” — As The Apha-Ancestor Of “Us All”… Out Of Africa — But Fascinating.

I’ll say no more. Just read it all. Oops. Okay — just a bit more, as I can’t stand not to say it. [Separately, background on Lucy, here.]

Onward, now smiling at the idea that “Dragon Man’s” skull was cleverly hidden — in the bottom of a well, in Harbin, Heilongjiang province, in northeast China, in 1933, to avoid the find falling into then-hostile Japanese (occupation) hands. Fast forward, three-quarters of a century. . . .

Some 78 years later, the man who originally found it told his grandchildren, on his death-bed — and they went and retrieved it. Thus, a new human ancestor — perhaps our own closest-in-time prior-relative (but not yet “us”), emerged from the mists of long forgotten time — time out of mind. Grinning. . . in amazement.

नमस्ते

[U X4: Adjourned.] Nothing Too Exciting At Holmes’ Hearing, So Far (One Hour In) — Listening Live, Now — In San Jose…

Updated 06.15.2021 @ 10:30 AM — The full order, from USDC Judge Davila — as a three page PDF file is now here, for the August 31 trial date. You may read it at your leisure. We will see 200 prospective juror candidates questioned. Just as in Martin’s trial.

Updated @ 2:20 EDT — Judge Davila has ruled that he will use only a 20 page jury questionnaire. It fairly closely tracks the standard ones; it rejects most of her invasive questions (it will not call out 46 periodicals — it will rely on jurors to self report). Sunny Balwani’s name will remain in the questionnaire, in some form (to see if there is bias, as to him — by any juror). The able judge invited counsel to propose minor edits / additions to the form of questionnaire he proposes to use — but he will also actively question prospective jurors — taking the lead on that, instead of counsel for either side. He will have four alternate jurors, in the end.

The hearing ended at about 3 PM EDT — after two full hours… End update.

I will add to this, if something truly surprising occurs.

Quite a bit of house-keeping mechanics… there will be a quiet room, and ample breaks — for nursing or other needs of the baby. But no baby yet.

More — if / when there are items worth mentioning.

We are over an hour into the house-keeping matters now.

Grinning.

More, Of Holmes — On Holmes — From Last Week…

I’ll admit it: this argument about how invasive Ms. Holmes’ questioning of the prospective jurors — may be, in a heavy pre-trial, long-form census questionnaire / dossier — fascinates me.

No doubt, the coverage of her deeds has been extensive — and some of that coverage was undoubtedly not 100 per cent accurate. [However, there appeared to be lots of coverage that was helpful to her — and some of that wasn’t entirely factual either.] This is a public persona (like Martin’s, to be candid) she courted. She is thus stuck with it, at trial — it was her choice to both seek fame, and commit crimes.]

Mid last week, she answered the government, a second time, as to why she needs such a broad and invasive questionnaire, ostensibly to preserve her right to a fair trial.

She would claim that the problem stems from the government’s choice to charge “a sweeping case” — with hundreds of the world’s wealthiest people as potential witnesses. The government rightly answers that in courting (and subsequently defrauding) investors with her sweeping crime spree (allegedly), she focused primarily on the glitterati. That makes her “pre-trial publicity” problem uniquely one of her own making.

As to the law, in the Ninth Circuit, the question revolves around whether a prospective juror is “highly unlikely” to remain impartial — due to having been exposed to media, or heard from friends and family — about the case before the court.

That is a high hurdle to clear — and so I’ll predict that her very long questionnaire won’t win the day. The able USDC Judge Davila will use live questioning of prospective jurors as the means to figure out whether they are “highly unlikely” to be impartial. Just as Judge Matsumoto did in Brooklyn over several days, in Martin’s felonies trial. Here’s the law, then (as stipulated by Ms. Holmes):

…The Ninth Circuit has held that bias arises “where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000) (citation omitted).

Ms. Holmes is entitled to explore the many “aspect[s] of the litigation” that the government has put at issue with its sweeping charges. Id. In addition, questions relating to jurors’ perspectives are necessary to address “matters concerning which either the local community or population at large is commonly known to harbor strong feelings that may stop short of presumptive bias in law yet significantly skew deliberations in fact.” United States v. Burns, 343 F. App’x 265, 2009 WL 2610791, at *1 n.3 (9th Cir. 2009)….

So — it seems likely that she will see at least some prospective jurors who would like to “wring her neck” — as occurred in Martin’s time in Brooklyn. But they will be rightly excluded.

And the evidence — not bias — will convict her, here. [Just as it did, Martin.]

Onward to a great day of riding in the ample sunshine, by the lake. Grinning — ever grinning. Be excellent to one another.

Ms. Holmes Will Be In Court, Live, Tuesday — In San Jose…

Will she have… an adorable baby — in tow? We do not know. I’ve seen no public reporting on the matter, but we may learn on Tuesday at 1 PM EDT.

[And though I know it should not, the notion of an innocent new life, separated from a mother (any mother) — for perhaps the entire developmental stage of their life — until they are 18 or older. . . is starting to color my perception of what “justice” means, in this matter.

I know it should not, and I well-know Ms. Holmes only fairly recently… chose to have this child (likely in part for this exact reason, too — if I let my cynical side shine through)… and still… I wonder if it will all mean a shorter sentence for her here (proportionately, as compared to Martin — for example), in the end. Ugh. It should not be so. But it likely… is so.]

In any event, here is the latest:

…The Pretrial Conference and Miscellaneous Motion [799] hearing as to Elizabeth A. Holmes is set for 6/15/2021 10:00 AM in San Jose, Courtroom 4, 5th Floor before Judge Edward J. Davila. All counsel and Defendant shall appear in person….

We will listen in, if an audio feed is provided. I do think she was set to deliver in early June, so we shall see.

Onward, to a flawless summer Saturday night’s barbeque with old friends. . . . grinning.

I Was Going To Stay Silent, On This… But Bloomberg Wrote On It Directly, So…

Okay, let’s be clear — at the head — Ms. Holmes ought to be free to offer any theory of defense she wishes, in her felony trial — afterall, 20 years of her freedom, while her baby is growing from toddler to a high school graduate, hangs in the balance. Those are very high stakes, for any mom.

And, though Bloomberg’s story is a responsible, and well-sourced one — nothing requires any potential juror questionnaire form to ask about how the juror feels about mental health, or psych-evals, or the profession of psychology, generally. So, it is still 50-50 in my estimation, as to whether Ms. Holmes raises a mental health defense.

That said — if offered, it will fail, also in my estimation. The idea that mental illness precluded her from forming an intent to defraud… is a stretch, since in most aspects of her life, she openly coveted all the trappings of success and resulting wealth and influence. So the government would be free to show her well-documented desires — to be among the glitterati — as an impeachment against the idea that she was simply sick, and the illness was the reason she did it all. [Think of this as a more dressed up version of the “affluenza” defense which failed some years ago in Texas.]

But I do want to respect her privacy, as to mental health — and it is incorrectly reported, in the Bloomberg story that she hasn’t mentioned it since last fall.

The last fifteen or so minutes of a March hearing were held without anyone present. The courtroom was cleared, and the Zoom feed shut off, for those last fifteen minutes. At that point about 15 sealed motions remained pending. Now there are about 25 of them. I strongly suspect that some of the fifteen minutes covered argument over what sort of mental health testimony might be permissible both in defense, and in impeachment of that defense.

And each side has identified mental health experts, for testimony. Whether any will actually be called to testify remains open.

But I do not think it is a dead issue just yet. [And that of course, is the tangential tie-in, for both Elizabeth and Martin — to the Harry-Meghan story immediately below.] Ms. Holmes has been excused from attending this coming week’s hearings — as I expect she has already delivered, or will do so shortly. But the actual trial start date was moved twice, to accommodate this, and one other issue. Now you know.

Onward, grinning ear to ear.

[O/T — But Not Entirely…] Now a baby girl — and a boy — here in the New World… Grin.

In a sweet homage to Harry’s mom, and grandmom, after both she is named.

But of course, there will be (mostly white) royal-loyalists. . . who will take offence.

So be it — we, in the New World, see only the lovely grace and perfection, of joyous new life.

We will be grinning all day today. Be excellent to one another, Archie and Lilibet. The new world is now indeed upon us. . . .

नमस्ते

Able AUSAs Argue Against Holmes’s Vastly Overreaching Jury Questionnaire Form…

Here it is. It is very well argued.

Solidly grounded in the law. No nonsense.

The able AUSAs in the San Jose office will here prevail. Here’s a bit, clearly spot-on:

…[Elizabeth Holmes]’s proposed questions, in all categories, are vastly overbroad and invasive, and will not aid the Court in distilling from the responses any potentially biased prospective jurors.

For example, Defendant does not—and cannot—support the breadth of her proposed questions which ask prospective jurors whether and how much they use social media, whether they read or listen to blog posts, podcasts, or social media posts connected with more than 15 journalists, and whether and how frequently they read 46 different newspapers (including The New York Times and The Wall Street Journal) or magazines (including People and Fortune) or watch or listen to 19 networks (including Netflix, Hulu, and NPR). ECF No. 808 at 21–28. The questionnaire also asks prospective jurors their views on the fairness or accuracy of the media as a whole. Id. at 28. These questions serve no purpose beyond providing details about prospective jurors’ media use and consumption habits without any connection to Defendant, Theranos, or the facts of this particular case.

Some of Defendant’s proposed questions are even more invasive into prospective jurors’ private lives—without any connection to this case—such as: whether or not they have health insurance and who provides it, which groups on social media prospective jurors belong to, if any, what the jurors have posted or blogged about on social media, topics published or unpublished authors have written on, how jurors make decisions within a group setting, and whether they have investment funds and which type. Id. at 16, 19, 22. Finally, yet another category of questions seems aimed solely at creating a jury profile from responses and should be rejected as irrelevant gamesmanship, such as whether the prospective juror: has a general opinion about startup businesses, has ever written a letter to the editor or called into a radio show, considers the news media to be fair and accurate, or thinks companies that oppose a government regulation and seek to overturn it are more likely to commit fraud….

So it goes. Onward… grinning (with a scheduled baby-girl sleepover tonight!), as Martin sees his (presumably former) friends decry his Daraprim price gouging as… wrong. Only about six years late to the party — but welcome back, boys.

Once Again, Ms. Holmes Argues That Some Pigs… Are “More Equal”. Preposterous.

In her pre-trial memo filed overnight, in San Jose’s federal court — she makes a series of rather… surprising assertions. They are surprising, not for any salacious factual detail about her self-inflicted predicament, on the merits — but rather, they surprise because they so clearly imply that she should be treated better than all other felony defendants before the court. Poppycock.

Of course, Condor confidently predicts the able Judge Davila will have none of it.

And the government, as ever… simply stuck to black letter law, in the Ninth Circuit, in its corresponding filing. Here’s a bit from Ms. Holmes’s:

…Ms. Holmes’ November 18, 2020 request for certain information relating to the government’s 24-page “Brady Letter,” which purports to catalogue the government’s steps to collect and preserve the evidence residing in the LIS. See Dkt. 732-2 (October 29, 2020 Letter from R. Leach to L. Wade); Dkt. 811-1 to -9 (correspondence between undersigned counsel and government seeking Brady material relating to the LIS).

The government’s Brady Letter does not identify by name numerous government attorneys, paralegals, and litigation support staff (as well as other government personnel) directly involved in the events at issue. And the government has not otherwise provided the documents identified (and sometimes quoted) in the Brady Letter. This request is addressed in Ms. Holmes’ pending Motion to Suppress. See Dkt. 810 at 8….

Ms. Holmes’ April 19, 2021 request for certain information in the government’s possession related to Dr. Adam Rosendorff’s employment as the laboratory director at uBiome….

This gets it all bass akwards. Theranos (the company she controlled) was supposed to maintain this data-set, under applicable FDA device rules and regulations. It did not do so. So she can hardly be heard to complain about its apparent unavailability now — due to lost 256 bit encrypted keys, at Theranos. Sheesh.

If you haven’t figured me out yet(!), the above is really just a place-holder, until we hear whether the Blue Cross / Blue Shield of MN has settled for boxcar numbers — with all the other defendants in that Manhattan civil antitrust / monopoly action leaving Martin — twisting in the wind… alone, and adrift.

Grinning — ever grinning. But (BTW, in Stat+) one of Martin’s former friends/cohorts at Vyera is this morning saying he’d like to see the Daraprim^® price gouging… come to an end.

Of course, this is after five years or so of no real price competition — now that Dr. Reddys and others are on market with generics… sure… now be magnanimous, and roll your insane prices… back to only 22 X what it should cost.

Matching Dr. Reddys is no wholesome move here, buddie.

Onward… ever, onward.