The Elizabeth Holmes Trial Meanders to a Finish – The New York Times

SAN JOSE, Calif. — The homicide trial of Kyle Rittenhouse in Wisconsin lasted two weeks, with four days of jury deliberations. Kimberly Potter’s manslaughter case in Minnesota took the same amount of time.

And the sex-trafficking trial of Ghislaine Maxwell in Manhattan wrapped up in 10 days, much faster than expected. Jurors quickly arrived at a verdict after Judge Alison J. Nathan threatened to keep them in deliberations through the New Year holiday, citing fears of a mistrial amid spiking coronavirus cases.

The fraud trial of Elizabeth Holmes, founder of the failed blood testing start-up Theranos, has had a decidedly more meandering pace.

Originally scheduled to wrap in early December, it stretched to 14 weeks of testimony and is set to enter its seventh day of jury deliberations on Monday. It has endured delays over juror travel, technology issues in the courthouse, a water main break and Ms. Holmes’s pregnancy. Now, after the jury has discussed the case for 43 hours without a verdict, the trial faces another challenge: New Year’s Eve and spiking coronavirus cases in Northern California.

In Santa Clara County, where the trial is being held, the number of new daily coronavirus cases has risen more than 250 percent over the last 14 days. The jurors have been pulled from four counties in the federal court system’s Northern District of California.

Judge Edward J. Davila, who is overseeing the case, has expressed no urgency to the jurors, who were expected to resume deliberations on Thursday. Instead, they took the day off.

This high-risk moment is the culmination of a case that began, in essence, six years ago when The Wall Street Journal uncovered that Theranos had misrepresented the abilities of its blood testing machines. Regulators cracked down on the company, which led to its unraveling. In 2018, Theranos shut down, and Ms. Holmes was indicted on charges of fraud.

She has been charged with nine counts of wire fraud over statements made to investors and patients and two counts of conspiracy to commit wire fraud. Each count carries a maximum potential sentence of 20 years in prison.

“It’s highly unusual for a case to take this long,” said Andrew George, a white-collar defense lawyer at the firm Baker Botts. “They’ve been moving at a pretty leisurely pace for a federal criminal trial.”

Judges have pushed other pandemic-era trials to move quickly given the risks of gathering people together, Mr. George said. “Omicron wasn’t in our vocabulary when this trial started,” he said. “The way some courts are handling it is basically hope.”

Delays Upon Delays

First, there were procedural issues. Then came the pandemic. And then Ms. Holmes became pregnant, pushing things back six more weeks. By the time jury selection for United States v. Elizabeth Holmes began in August, a book, a podcast and a documentary had been made about Theranos’s rise and fall. Two more scripted dramas are in the works.

To avoid juror fatigue and build in extra time for any more pandemic-related delays, Judge Davila scheduled the trial’s proceedings to go only until 2 p.m. for three days a week.

In its first week, a coronavirus scare canceled a day of proceedings. As the trial dragged on, extra days were added to get through the prosecution’s list of 29 witnesses, one of whom spent six days on the stand.

Judge Davila has been methodical and lenient in his management of the case, allowing lawyers from both sides to spend hours debating procedural issues before most days of testimony began. The slow trial pace prompted Adam Lashinsky, a columnist at Business Insider, to declare in early November that Judge Davila was “blowing it” by mistaking “dithering for deliberation.”

Now, with the case in the jury’s hands, the long hours of deliberations have allowed trial watchers to indulge in speculation about what’s happening. What prompted the roaring laughter coming from the deliberation room? Why were the jurors applauding? Why did lawyers on both sides of the case use a secret side entrance for a closed 23-minute discussion with the judge on Tuesday? Why haven’t jurors had more than two questions for the court?

But what has already occurred in the trial should serve as a warning about what will happen next: Few predictions about how it would go have come true.

Hinging on Intent

Little about Ms. Holmes’s trial has been typical. Silicon Valley executives are rarely indicted on charges of fraud, especially those with Ms. Holmes’s level of fame. Not many take the stand in their defense, as Ms. Holmes did for seven days. And allegations of abuse like the ones Ms. Holmes made against Ramesh Balwani, her former business partner, ex-boyfriend and alleged co-conspirator, are extremely rare in white-collar cases.

The fraud allegations cover nearly a decade of business dealings and span the complexities of blood test science and financial arcana. To convict, the jury must conclude, beyond a reasonable doubt, that Ms. Holmes intended to deceive.

Despite mounds of evidence, Christopher Slobogin, a professor of criminal law at Vanderbilt University, said the entire case could come down to Ms. Holmes’s testimony.

“My guess is her testimony, more than any other evidence presented at the trial, is causing the jury to struggle over whether there was an intent to deceive or just an overabundance of optimism,” he said.

Until a verdict is reached, there is no way to know exactly why deliberations have dragged on or what it means for the case. The jury has given little indication through notes to the court. One note asked about taking jury instructions home to review, and another asked to replay a recording of Ms. Holmes pitching Theranos to investors. During the playback, most of the jurors scribbled furiously into their notebooks, while a few sat motionless.

Many of the jurors have taken detailed notes throughout the trial. One even stopped proceedings when his pen ran out of ink. In October, it was revealed that one juror’s notes were actually a numbers game, Sudoku, which she had been playing to keep her hands occupied during the long hours of testimony. The juror was dismissed after another juror reported her to the court clerk.

Two alternate jurors remain on standby.