High-profile witnesses

Names including media mogul Rupert Murdoch and former secretary of state Henry Kissinger are on the prosecution’s witness list — and could still be called. Just a few weeks into trial, however, the prosecution called its first high-profile witness, Mattis, to the stand. Mattis, a retired Marine general, served on the company’s board and communicated directly with Holmes many times. In at least one email shown in court, he referred to her as “young Elizabeth.” Mattis testified that he believed Theranos was capable of running thousands of tests on its own devices. If he had known the devices could run only about a dozen tests and was relying heavily on third-party machines, as prosecutors have alleged, “it would have tempered my enthusiasm significantly,” he said. Former Safeway CEO Steven Burd later said he was frustrated by constant delays from Theranos in the grocery chain’s ultimately failed partnership with the company. A representative for the family investment office of former education secretary Betsy DeVos testified that she felt misled by Holmes when evaluating the investment. On Tuesday, a former lawyer with Cravath, Swain & Moore named Daniel Mosley testified that he introduced several of his high-profile clients to Holmes, including family members or representatives of the Walton family, the Walmart heirs, the DeVos family and the Cox family, Atlanta media moguls. He said he first heard about Theranos from his client, Kissinger, who then served on the company’s board.

So much of the media portrayal of Holmes has focused on her youth, her gender and her company’s spectacular downfall that it’s almost hard to remember that at its core, Theranos was a company steeped in science. In the courtroom, it’s impossible to forget. The jury sat through weeks of testimony from former lab workers who explained in sometimes painstaking detail how blood tests, or assays, are developed and how Theranos’s devices were designed to process them. One former lab director, Adam Rosendorff, was grilled by lawyers for six days, sometimes clashing with the defense team . Defense attorney Lance Wade questioned Rosendorff about his responsibilities as lab director, pointing out that he was responsible for many things. Rosendorff shot back, suggesting that it wasn’t reasonable to pin everything on him. “You keep saying ‘it’s my job, it’s my job,’ but I was part of a large company with delegated roles,” Rosendorff said. “Yes, I did my job, but I also depended on a lot of people around me.” Anne Kopf-Sill, a retired biotech executive who has attended court nearly every day of the trial, said it seems unlikely the jury is following all of the in-the-weeds science. “I definitely think a lot of it is very technical and detailed about the technology and about the quality-control metrics,” she said.

That may have led to some Sudoku. Federal district judge Edward J. Davila questioned one of the jurors who admitted she had been playing Sudoku during some parts of testimony. She was feeling fidgety and it did not affect her attention, the juror explained, according to a transcript of the conversation obtained by the Wall Street Journal. But the judge dismissed her at the defense team’s request. That leaves the jury with only two alternates out of the original five. One juror was dismissed early in the trial because of a conflicting work schedule. Another was sent home shortly after because her religious faith made her uncomfortable with the idea of punishment. With each excused juror, the risk increases until the total number falls below 12 and there’s a mistrial. But the parties will likely go out of their way to ensure they don’t lose more jurors, said former federal prosecutor Brian Blais, a partner at law firm Ropes & Gray. “It’s not uncommon to lose jurors,” he said. “I don’t think I’ve ever done a trial where there’s not some sort of juror issue.”

Another surprise came early on in the form of a mysterious audience member. Before opening arguments began, during jury selection, a man dressed casually chatted up reporters and sat eating snacks in the back of the courtroom. He told reporters his name was Hanson and he was a “concerned citizen,” according to a report from NPR. In reality, the man was San Diego hotel owner named William L. Evans, father to Holmes’s partner Billy Evans. This became evident when he walked in with Holmes during the first day of trial, by then wearing a suit. Evans did not respond to a message sent through his hotel’s website. In a brief conversation, he told NPR that “people have nicknames and you can be free to use them.”

Will Holmes take the stand?

The prosecution is still presenting its case to jurors, and it’s unclear when the defense will take over . Even more unclear is the pressing question — will Holmes testify on her own behalf? It’s a strategic decision for lawyers to decide whether to put a defendant on the stand, Blais said. The prosecution needs to show that Holmes had an intention to defraud investors and patients, and if they haven’t done that the defense might not need to risk calling Holmes. But he thinks they might need to. Jurors have already heard Holmes’s voice, however. Prosecutors played recordings of a 2013 meeting she held with investors during trial, and showed TV clips of her talking about the company.

Technology

Delays, distracted jurors and disappointed investors: The Elizabeth Holmes trial so far

Only two alternate jurors remain with a month or more left in the trial

By Rachel Lerman

November 6, 2021 at 7:00 a.m. EDT

Former defense secretary Jim Mattis leaves federal court in San Jose, Calif., on Sept. 22. (David Paul Morris/Bloomberg News)

SAN JOSE — A former defense secretary. Text messages between lovers. Sudoku.

Those are some of the more exciting moments in a rather pedestrian first two months of the trial of Elizabeth Holmes, the former blood-testing start-up founder facing charges of wire fraud. A significant portion of the trial has been in-depth scientific and financial detail, including testimony from several former lab workers who grew concerned about Theranos’s technology.

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But former defense secretary Jim Mattis, who was on the board, took the stand to say he would have had a different view of the company if he knew its limitations. And pages of text messages between Holmes and her then-boyfriend Sunny Balwani — who was also the company’s president — were read aloud in court. In an unexpected twist, a juror was excused for playing too much of the numbers game Sudoku.

Holmes is on trial for 12 counts of wire fraud and conspiracy to commit wire fraud for allegedly misleading investors and patients about the capability of the company’s blood-testing device. She has pleaded not guilty.

Blood, labs and fraud: Theranos’s Elizabeth Holmes is on trial

With a book, a documentary, a podcast and multiple investigations released in the years before the trial began, a lot of Theranos’s story has already been made public. But the trial has delved into details and minor revelations not yet explored.

The trial is scheduled to end in mid-December. Here’s everything you need to know to catch you up on what’s happened so far.

Delays, distracted jurors and disappointed investors: The Elizabeth Holmes trial so far

Only two alternate jurors remain with a month or more left in the trial

What to know about Theranos and Elizabeth Holmes