Elizabeth Holmes “silently charms” her jurors. Could the Theranos case end in a void trial?

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Without uttering a baritone inflected word, former Theranos CEO Elizabeth Holmes is having an effect on the ever-shrinking number of jurors deciding her future – and Holmes is unlikely to speak in the courtroom even though she is on the defense witness list, legal experts say.

“Holmes is unlikely to testify,” NBC legal analyst Danny Cevallos said. “There are just too many risks. Once she loses her credibility, that’s it. And she does much better sitting there silently charming the jurors.

Some of that silent power simply comes from the painting Holmes exhibited daily appearing in the courtroom with her mother, whom she held hands with as she entered court, and her husband, stepfather and other members. of the family.

“The jurors are taking notice,” said Ellen Kreitzberg, a law professor at the University of Santa Clara who attended the hearings in person. “It helps to humanize him and provide him with a story outside of the one related to these accusations.”

Creating a possible alternative narrative to that of a greedy and greedy CEO is essential for the defense in a case where the jury is asked to determine whether the alleged fraud was intentional.

“You ask the jurors to get into her mind and ask her what she was thinking. If you see her in that setting in the courtroom, determining her intention becomes more complex, ”Kreitzberg told NBC News. “It gives the jury something to hold onto, and something the defense does quite effectively.”

Kreitzberg also believes Holmes will not testify, which makes any non-verbal communication from the founder of the failed blood testing start-up all the more important.

Holmes’ presence has had an impact on the jury before, playing a role in removing a juror and causing a moment of hesitation before an alternate takes the oath.

The trial began in September with 12 jurors and five deputies and now has only two deputies.

A juror was fired after serving a month, citing her religious beliefs, saying her Buddhist principles of forgiveness would fill her with insoluble guilt if she returned a guilty verdict that sent Holmes to jail.

“I’ve never had a juror say something like that in my life,” Cevallos said. “It’s unusual.”

Another substitute juror was fired last week for playing a Sudoku number puzzle, which she says kept her from being ‘restless’ and helped her focus.

And another alternative expressed concern that English was not her first language and that could make her make a mistake.

“She’s so young,” the alternate said. “This is my first time in this situation and it is his future.”

Legal experts were astonished by the juror’s feelings of sympathy for Holmes and said the dismissals are troubling at this point in the proceedings.

“Having only two alternates, with the government only halfway through its case after two months, suggests the real risk of the trial being set aside,” said Mark MacDougall, a former federal prosecutor now in private practice .

Trial days are currently scheduled until early December, depending on the judge’s schedule. Others could be added if the defense calls witnesses.

“Every jury will experience some attrition when a trial lasts this long. A few unexpected illnesses, family emergencies or just episodes of poor judgment – and the court will be faced with the prospect of losing a twelfth juror and the ability to reach a verdict, ”MacDougall said.

The number and nature of the layoffs is atypical, said Jessica Roth, professor of law at the Benjamin N. Cardozo School of Law at Yeshiva University.

“That’s an unusual number of jurors to lose at this point in the trial. The reasons for losing them are also unusual at this stage of the procedure. Religious beliefs of jurors and financial hardships that would make them difficult to serve normally would be identified during jury selection. So it’s surprising that these jurors were selected for the jury in the first place, ”said Roth.

Witnesses have testified that Holmes has a unique ability to grab attention. Steve Burd, former CEO of Safeway, who lost nearly $ 400 million in a collapsed deal with Theranos, said in testimony last month that she had the power to command an entire room, which he compared to that of the American presidents he had met. Holmes had a “kind of ethereal quality,” former Secretary of State and Theranos board member Henry Kissinger told The New Yorker in 2014.

Ex-employees and reporters who interviewed Holmes documented his habit of making eye contact without blinking. As a teenager, Steve Jobs, the Apple CEO Holmes was modeled on, got into the habit of looking at people without blinking in order to intimidate them, according to Jobs biographer Walter Isaacson. During jury selection in late August, Holmes attempted to make eye contact with each potential juror, CNBC reported.

In the courtroom itself, Holmes sits upright and remains motionless, listening intently, rarely speaking to his lawyers or taking notes, Kreitzberg said.

“He’s clearly a very convincing person,” Kreitzberg said, noting the connection and concern expressed by investors such as former Defense Secretary James Mattis, even after their trade relations fell short. promises.

But, she said, “this magnetic presence does not manifest itself in the courtroom where it is distant, does not speak, and it is masked. She does not have the same power.

Experts say in his withdrawn, masked and mute state, Holmes is doing his job of appearing as a model accused.

“Your best hope as a defense lawyer is for your client to stay there and try not to look guilty. In Holmes’ case, she succeeded beyond the wildest dreams of her lawyers, ”Cevallos said. “In a way, we shouldn’t be surprised, because this is the same person who would have charmed some of the most influential people in the world.”

Elizabeth Holmes even developed her own fan base drawn to her story. Calling themselves “Holmies,” they defend the disgraced CEO on social media under the hashtag #GirlBoss. At the start of the trial, three young women dressed in black and sporting messy blonde hair like Holmes, lined up, claiming to be “fans.”

According to the government’s indictment, Holmes is accused of misrepresenting the strengths and limitations of Theranos blood testing technology to investors.

Holmes and her former boyfriend and former Theranos COO Ramesh “Sunny” Balwani face an indictment of 12 counts of wire fraud. If found guilty, they face up to 20 years in prison.


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