Theranos founder’s lawyers question grand jury makeup

Attorneys for Theranos founder Elizabeth A. Holmes have asked a federal judge to order the disclosure of information about the grand jury that filed an amended indictment against her last week, questioning whether the proceedings -- modified due to the COVID-19 pandemic -- violated her Sixth Amendment rights by not including a cross-section of the public.

The discovery motion, filed Thursday by Holmes' lawyers and joined Friday by attorneys for co-defendant Ramesh "Sunny" Balwani, is the latest test of how courts can balance the rights of criminal defendants and litigants in general against the need to protect public health in the midst of the coronavirus.

Federal prosecutors with the Northern District U.S. attorney's office responded Friday by agreeing the defense is entitled to "a limited set of data to the extent available: "the county of residence, zip code, race, and age of the individuals listed in the master jury wheel from which the grand jury was selected." But the prosecutors said any requests beyond that should be rejected.

Prosecutor Robert S. Leach wrote Holmes' lawyers were adopting the same strategy employed by other criminal defendants during the pandemic. He said allegations the grand jury was not composed of a cross-section of the community were "without basis."

A grand jury filed two superseding indictments against Holmes and Balwani in July, with the most recent one returned last Tuesday. They are accused of two counts of conspiracy to commit wire fraud against Theranos patients and investors and 10 counts of wire fraud. The third indictment adds an extra wire fraud count.

They are accused of bilking investors and consumers out of hundreds of millions of dollars for faulty blood testing technology.

The trial was scheduled to start last month but had been postponed until October. During a July 20 hearing, U.S. District Judge Edward J. Davila of San Jose told attorneys Holmes' trial would not take place in late October either due to COVID-19 delays. Her trial is likely to be rescheduled later this month for sometime in 2021.

Holmes' legal team -- led by Williams & Connolly LLP partners Kevin M. Downey, Lance A. Wade, Amy Mason Saharia and Katherine A. Trefz and San Francisco attorney John D. Cline -- seeks discovery to learn information about the grand jury to determine if they were "selected at random from a fair cross section of the community."

Under the Jury Selection and Service Act, defendants may seek dismissal of an indictment if prosecutors fail to comply with the law.

Saharia wrote the grand jury selection procedures "apparently were revised from past procedures in light of the ongoing pandemic, and it is unclear what effect these changes had on the constitution of the grand jury that returned the indictments." U.S. v. Holmes et al., 18-CR00258 (N.D. Cal., filed June 14, 2018).

"There are serious concerns as to whether the grand jurors that returned the second and third superseding indictments were representative of the community in the district and division wherein this court convenes, particularly in light of the disproportionate medical and economic impact that the COVID-19 crisis has had on certain populations," Saharia wrote.

Federal law allows defendants to "inspect, reproduce, and copy such records or papers at all reasonable times during the preparation and pendency of" a motion to dismiss, she added.

But in his Friday response, Leach wrote Holmes' motion sought more information than permitted under federal law.

"Defendant Holmes is not entitled ... to the majority of the materials she seeks because such materials are not necessary to allow her to assess whether to move to stay proceedings or dismiss the indictment on the purported ground that the grand jury was not selected at random from a fair cross section of the community," he wrote.

Prosecutors could not be reached for comment Friday.

Balwani, Theranos' former president and chief operating officer, will be tried separately from Holmes. His attorney, Jeffrey B. Coopersmith of Orrick, Herrington & Sutcliffe LLP, declined to comment Friday.