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Elizabeth Holmes trial: Jury tells judge it cannot agree on three of 11 counts against ex-CEO of Theranos

Judge Edward Davila urges them to continue deliberations, averting for now a mistrial

Elizabeth Holmes, former CEO of Theranos, arrives at the federal courthouse in San Jose on Oct. 1, 2021. Courtesy Harika Maddala/Bay City News.

After more than four months of listening to arguments in the trial of former Theranos CEO Elizabeth Holmes and deliberating since Dec. 20, the jury on Monday, Jan. 3, told Judge Edward Davila of the United States District Court for the Northern District of California in San Jose that its members have been unable to come to a unanimous agreement on three of the 11 counts of fraud.

Prosecutors immediately asked Davila to instruct the jury to continue deliberations and reach a verdict, a procedure known as the "Allen charge." Defense attorneys opposed giving the jury the Allen charge. Without continued deliberations, the judge could declare a mistrial or partial mistrial.

Davila swiftly decided to ask the jury to continue deliberations after reading to them instructions to take their time to reach an impartial verdict.

The note did not specify which three counts the jury was unable to reach a verdict on.

If the jury can't reach a verdict on the three counts, then it can return a verdict on the eight that the members have reached agreement on, said David Alan Sklanksy, faculty co-director at Stanford Criminal Justice Center.

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"Then the government will be free, if it wants to, to re-try Holmes on the other three counts, whatever the results are on the eight charges," he said.

However, Sklanksy noted that, in his view, it's unlikely that the government will re-try Holmes for the three charges, regardless of the verdict on the other eight. He said that if she's convicted on eight charges, the government would not need the other three as the maximum sentence would not increase.

Holmes, 37, was indicted in June 2018 for the alleged multimillion dollar scheme surrounding the blood-testing technology of the Palo Alto-based company, which she founded. She ultimately stood trial on 11 fraud charges. Seven counts pertain to investor-related wire fraud and the remaining four counts are tied to wire fraud against patients.

During the 14-week trial, federal prosecutors questioned numerous witnesses, most notably former U.S. Secretary of Defense James Mattis, who served on Theranos' board of directors, and journalist Roger Parloff, whose June 2014 cover story in Fortune magazine propelled Holmes and Theranos to fame.

Past employees called to the stand described quality control problems and complaints surrounding the blood test results from the company's Edison devices, among other issues. Those offering testimony included former lab directors Adam Rosendorff and Kingshuk Das and former lab associate Erika Cheung.

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Investors testified to the millions of dollars they put into Theranos with the understanding that the fingerstick blood-testing technology worked, and patients and doctors spoke to inconsistent results, including one case involving a pregnant woman.

The jury's note Monday morning was the latest in a series of roadblocks during the trial. Three jurors were dismissed and a water main break shut down the federal courthouse for a few days. By the end of October, U.S. District Judge Edward Davila updated the trial schedule to make up for lost time.

A crucial point of the trial came in late November, when Holmes took the witness stand. Over the course of seven days, her testimony touched on whether the Edison machines provided accurate results and statements she had made about Theranos' blood-testing technology. Holmes also claimed she was abused by Ramesh "Sunny" Balwani, her ex-boyfriend and alleged co-conspirator who was Theranos' former chief operating officer, and spoke to their frustration over the company's problems. Balwani is set to stand trial in January.

Closing arguments started on Dec. 16 and wrapped up on Dec. 17.

This story will be updated.

Bay City News Service contributed to this report.

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Elizabeth Holmes trial: Jury tells judge it cannot agree on three of 11 counts against ex-CEO of Theranos

Judge Edward Davila urges them to continue deliberations, averting for now a mistrial

by Lloyd Lee and Jamey Padojino / Palo Alto Weekly

Uploaded: Mon, Jan 3, 2022, 11:44 am
Updated: Mon, Jan 3, 2022, 1:07 pm

After more than four months of listening to arguments in the trial of former Theranos CEO Elizabeth Holmes and deliberating since Dec. 20, the jury on Monday, Jan. 3, told Judge Edward Davila of the United States District Court for the Northern District of California in San Jose that its members have been unable to come to a unanimous agreement on three of the 11 counts of fraud.

Prosecutors immediately asked Davila to instruct the jury to continue deliberations and reach a verdict, a procedure known as the "Allen charge." Defense attorneys opposed giving the jury the Allen charge. Without continued deliberations, the judge could declare a mistrial or partial mistrial.

Davila swiftly decided to ask the jury to continue deliberations after reading to them instructions to take their time to reach an impartial verdict.

The note did not specify which three counts the jury was unable to reach a verdict on.

If the jury can't reach a verdict on the three counts, then it can return a verdict on the eight that the members have reached agreement on, said David Alan Sklanksy, faculty co-director at Stanford Criminal Justice Center.

"Then the government will be free, if it wants to, to re-try Holmes on the other three counts, whatever the results are on the eight charges," he said.

However, Sklanksy noted that, in his view, it's unlikely that the government will re-try Holmes for the three charges, regardless of the verdict on the other eight. He said that if she's convicted on eight charges, the government would not need the other three as the maximum sentence would not increase.

Holmes, 37, was indicted in June 2018 for the alleged multimillion dollar scheme surrounding the blood-testing technology of the Palo Alto-based company, which she founded. She ultimately stood trial on 11 fraud charges. Seven counts pertain to investor-related wire fraud and the remaining four counts are tied to wire fraud against patients.

During the 14-week trial, federal prosecutors questioned numerous witnesses, most notably former U.S. Secretary of Defense James Mattis, who served on Theranos' board of directors, and journalist Roger Parloff, whose June 2014 cover story in Fortune magazine propelled Holmes and Theranos to fame.

Past employees called to the stand described quality control problems and complaints surrounding the blood test results from the company's Edison devices, among other issues. Those offering testimony included former lab directors Adam Rosendorff and Kingshuk Das and former lab associate Erika Cheung.

Investors testified to the millions of dollars they put into Theranos with the understanding that the fingerstick blood-testing technology worked, and patients and doctors spoke to inconsistent results, including one case involving a pregnant woman.

The jury's note Monday morning was the latest in a series of roadblocks during the trial. Three jurors were dismissed and a water main break shut down the federal courthouse for a few days. By the end of October, U.S. District Judge Edward Davila updated the trial schedule to make up for lost time.

A crucial point of the trial came in late November, when Holmes took the witness stand. Over the course of seven days, her testimony touched on whether the Edison machines provided accurate results and statements she had made about Theranos' blood-testing technology. Holmes also claimed she was abused by Ramesh "Sunny" Balwani, her ex-boyfriend and alleged co-conspirator who was Theranos' former chief operating officer, and spoke to their frustration over the company's problems. Balwani is set to stand trial in January.

Closing arguments started on Dec. 16 and wrapped up on Dec. 17.

This story will be updated.

Bay City News Service contributed to this report.

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