Theranos’s Elizabeth Holmes may go unmasked at US criminal trial

Elizabeth Holmes and the judge will likely be the only consistently unmasked participants at her criminal trial, with a surge in the delta variant creating much concern for the participants.

Holmes appeared in-person in San Jose federal court Monday for the first time since the pandemic closed courthouses across the U.S. Her attorneys and prosecutors were masked and behind plexiglass panels to lay down ground rules for her trial that’s scheduled to start at the end of the month.

U.S. District Judge Edward Davila, sitting perched above everyone else and behind his own plexiglass panel, was the only unmasked person in the windowless courtroom. Holmes, who reportedly had a baby last month, sat masked between her lawyers for the hourslong hearing covering a wide range of issues including, briefly, her potential defense that she suffers from a mental disease.

The founder and former chief executive officer of Theranos Inc. has pleaded not guilty to charges she lied to doctors, patients and investors about the accuracy and capabilities of the company’s blood-testing machines.

Worries about how infection might derail the three-month trial permeated the hearing. Davila said he’ll ask jurors to wear masks, perhaps making a brief exception when they introduce themselves. The judge said he hoped to learn more about whether they’re vaccinated from questionnaires going out this week.

Potential jurors will speak at a lectern, rather than passing a microphone around, during their selection, Davila said.

A lawyer for Holmes, without explaining why, said her team has a “strong preference” that she not wear a mask during the trial. Clearly her attorneys think it’s to her advantage to show jurors she has nothing to hide. Davila didn’t rule on the request but indicated he’s open to exceptions — and why Holmes might opt to reveal her full face.

He said he’ll ask witnesses if they’re willing to testify unmasked behind their plexiglass stand “so the jury can properly examine their demeanor.” Lawyers examining the witnesses can also remove their masks, he said.

Lawyers for the prosecution and Holmes’s team have told Davila they’re vaccinated. The judge has installed some air filters in the courtroom, may add more, and is investigating the possibility of bulk, rapid testing for the coronavirus.

He said he’ll give jurors and lawyers a “health break” if they’re feeling ill. The judge also added a fifth alternate juror, and said he’s considering the optimal courtroom layout to give jurors space.

“These are all thing we’re thinking about now,” Davila said.

The hearing mostly centered on a questionnaire potential jurors will get this week and the final instructions for those selected to serve. Jury selection starts Aug. 31 with opening arguments scheduled to begin Sept. 8.

Davila last year authorized prosecutors to commission an evaluation of Holmes after she indicated she may want a trauma expert to testify about a “mental disease or defect.” Legal experts said Holmes was perhaps testing a legal argument that she was traumatized from a relationship.

“The court intends to ask some questions about those areas,” Davila said Monday, adding that he wants “to give both sides fair notice.” The judge also said he wants to ask jurors about their knowledge of “people who know people who have been in relationships.” He didn’t explain further but the inquiry could be related to Holmes’s romantic relationship with Ramesh “Sunny” Balwani, a former Theranos president who faces a separate criminal trial next year.

The case is U.S. v. Holmes, 18-cr-00258, U.S. District Court, Northern District of California (San Jose).