The Last Of The Daily Trial Logs… Since The Jury Now Has The Case, For Deliberations…

For the record, here it is — but the lawyers taking almost two days for closing arguments… seems a bit much. Even in a three month trial.

I strongly suspect that no matter how long or short their closings might have been… the die is already cast. Even though there were some 35 witnesses, and complex tech (and some complex federal CMS / FDA regulations) discussed… it seems it comes down to this: will the jury believe most (or all) of the 30 or so government witnesses, or will they believe the lone gravelly voice… of one Elizabeth Holmes?

In my mind, at least — that is not a very hard assessment to make.

And so, starting Monday morning — they will deliberate (as the last line in the log indicates).

Precisely because they will be looking at going into a Christmas weekend, I expect the jury will want to finish before Friday. And I expect they will… finish.

Onward, grinning…. be excellent to one another.

Proof Of A “Slow News” Day Dept.: NYT Writes On Elizabeth’s Style “Downshift”, In Court, At Least…

From the sublime to the ridiculous, I guess — as we wait for (the too-long and boring) closing arguments to wrap, and the jury to get instructions — and begin deliberating, perhaps yet later today.

The Gray Lady (heh!) this morning runs a full column on how her attire may affect her outcomes, at trial. R-i-i-i-i-i-i-ght.

Me? I think she’s guilty — with a diaper bag, in court — or with a Hermès bag, out of it.

Here’s that truly trivial bit — for BillyTheKid’s entertainment, solely, of course:

…By the time opening arguments began in September, the new look had been perfected: a no-name skirt suit (or dress and jacket or pantsuit) in a color so banal as to practically fade into the background. Her hair was set in loose waves around her face, like Christie Brinkley or a contestant on “The Bachelor.” Her face masks were light blue and green — the colors of nature. There was not a power heel or a power shoulder in sight. The only part of her outfit that was branded in any way was her diaper bag backpack (her son was born in July), which was from Freshly Picked and costs around $175.

That’s not cheap, but it’s nothing like the Hermès bag Martha Stewart carried during her 2004 trial for insider trading, which prompted let-them-eat-cake comparisons and became a classic example of what not to wear to court — especially when you are charged with mishandling funds. (On the other hand, when Cardi B appeared in court with her Hermès to reject a plea deal in a misdemeanor assault case, the high-end bag served as a symbolic riposte to the idea that the rapper was a street brawler.)

The net effect of Ms. Holmes’s makeover was middle manager or backup secretarial character in a streaming series about masters of the universe (but not her! uh-uh), with the diaper bag functioning as an implicit reminder of her maternal status….

Now… bring me… that guilty verdict — on all counts, for Christmas!

One Early Series A Holder Will Turn His Stock Certificate Into An NFT: Effort To Turn A Profit On “Investment”

Well. Yes.

It is official.

This is a world one could not have imagined two decades ago.

When the worthless, bankrupted Enron stock certificates were used to wallpaper some Texas (former) “investors’” bathrooms, I thought I had seen it all.

Not. Even. Close.

[This is an ironic — if perfect — development, as closing arguments begin in San Jose, this morning. Perhaps someone could now make an NFT out of Martin Shkreli’s defunct strip club “hedge” fund certificates, from around 2016/17. Priceless.]

This gent is enterprising — even if the move highlights all that is wrong with the commodified fine-art world. To be certain, this is NOT fine art, at right.

Here’s to hoping that he recoups at least some of the $150,000 he put in.

Grinning….

Closing Statements Start Tomorrow — And Team Holmes Tries Again To Strike The CMS Materials…

They do so, Condor conjectures, because this bit alone will sustain a conviction of Holmes on all the fraud-related counts. [In it, an impartial government agency charged with evaluating patient safety in novel device trials (CMS)… makes clear that Holmes and Balwani, and Theranos, were trying to mislead it, and about matters that implicate patient safety, specifically. So, game over, on this evidence. And it has already been shown to the jury.]

Team Holmes’ effort will fail — and she will be convicted — see this cogent eleven pager, from the able AUSAs (Judge Davila already ruled against the Holmes team, on almost all these arguments):

…The findings within the January 2016 CMS Report are relevant to the inability of Theranos to provide accurate and reliable tests during 2014 and 2015, as well as Defendant’s knowledge of this inability. The Third Superseding Indictment (“TSI”) alleges that Defendant devised a scheme to defraud patients between approximately 2013 and 2016—when Theranos elected to shutter its lab following interactions with CMS. ECF No. 469 ¶¶ 14–18.

Specifically, the TSI alleges that from 2013 to 2016, the entire time Theranos was providing testing services to patients, Theranos represented to doctors and patients that Theranos could provide accurate, fast, reliable, and cheap blood tests and test results when Defendant knew that Theranos was not, in fact, capable of consistently producing accurate and reliable results. Id. Trial Exhibits 4621A and 4621B — which relate to patient testing that Theranos conducted in 2014 and 2015 — are directly relevant to allegations in the TSI. CMS, or a state agency on its behalf, inspects laboratories once every two years. 09/29/2021 Hearing Transcript (“9/29 Tr.”) at 2114:10–2118:3; 11/29/2021 Hearing Transcript (“11/29 Tr.”) at 7794:1–16, 7809:3–20, 7811:10–22; 12/07/2021 Hearing Transcript (“12/7 Tr.”) at 8438:15–24. When California’s state agency inspected Theranos’ California lab in 2013, Defendant admitted it was largely using unmodified, FDA-approved commercially available third-party analyzers, and had only three or four lab-developed tests running on Theranos technology. 12/7 Tr. at 8438:15–8440:21. By the time of its next inspection in 2015, CMS had received complaints, including from Erika Cheung, about Theranos’ blood testing practices in its CLIA lab. 09/15/2021 Hearing Transcript (“9/15 Tr.”) at 985:8–986:5; 12/7 Tr. at 8493:3–6. Ms. Cheung and others at Theranos had escalated these issues to Defendant and co-Defendant Balwani to no avail in early 2014. See 9/15 Tr. at 973:1–981:18; 11/30/2021 Hearing Transcript (“11/30 Tr.”) at 7972:13–7977:8, 7979:1–7993:3 (Defendant acknowledging that she now knows Ms. Cheung and Tyler Shultz were right but at the time in 2014 she minimized the seriousness of the issues they were raising).

In fall 2015, CMS analyzed paperwork and Theranos’ lab practices from 2014 and 2015 — essentially since the last state-run inspection — and found widespread issues. See generally 11/9 Tr. at 5818:8–5835:14, 5854:11–17, 5855:22–5857:7. Defendant hired Dr. Das to internally analyze CMS’s findings and respond to the CMS report Theranos received in January 2016. Id. at 5784:11 21, 5794:23–5795:16. In doing so, Dr. Das did his own independent analysis, reviewed a broader universe of data than had been provided to CMS, and concluded that the deficiencies identified in the CMS report were only a “representative” sample of the actual deficiencies within Theranos’ Newark laboratory….

So it goes. I will cross-post this to the Shkreli site tonight, as his team is at this moment (on a Sunday) withdrawing the expert testimony the able Judge Cote had already largely stricken — and in turn, the FTC is withdrawing its answering expert testimony in reply to that bit.

So a similar, in tandem dance — in both trials, now.

Out, grinning.