[URL='https://twitter.com/doratki']Dorothy Atkins@doratki[/URL]
Good morning from San Jose! I’m back waiting outside Judge Ed Davila’s courtroom for a pretrial hearing to start in Sunny Balwani’s criminal fraud case. Balwani is here, as well as a bunch of attorneys. No Elizabeth Holmes obv.
11:20 AM · Feb 4, 2022·
The clerk just opened the courtroom and Balwani, who's wearing a suit and tie, held the door open for his team of attorneys from Orrick. (Notably, he did not hold the door for me and the other Bloomberg reporter who's here.)
11:27 AM · Feb 4, 2022
It looks like Balwani came with a team of 7-8 Orrick attorneys led by Jeff Coopersmith. The gov't's team are a bunch of familiar faces - prosecutors Robert Leach, John Bostic, Jeff Schenk & Kelly Volkar - also a couple newbies on the team.
11:32 AM · Feb 4, 2022
Judge Davila is on the bench. Prosecutor John Bostic suggests many pretrial issues can be submitted on the papers (no oral argument). Balwani's counsel appears to disagree, saying he "appreciates" the court went through the other trial, but this is the 1st time for his client.
11:45 AM · Feb 4, 2022
Judge Davila replies to Balwani atty Jeff Coopersmith that he saw Coopersmith was here in court "every day" of Holmes' trial. "You were dutifully taking notes, you went through 4-5 legal pads" in just one day, and "that’s helpful, I’m sure, for a number of reasons."
11:48 AM · Feb 4, 2022
Jury selection in Balwani's
trial begins March 9, openings March 11. Judge Davila says he thinks he'll give each side roughly an hour for voir dire during jury selection.
11:51 AM · Feb 4, 2022
Judge Davila notes that "the lawyers were so good, in so many ways" throughout the Holmes trial that they didn't have issues in jury selection, which he said was efficient. "We hope to do better, your honor," Coopersmith replies.
11:54 AM · Feb 4, 2022
Judge Davila says he plans to adopt the same COVID safety protocols that he implemented during the Holmes trial, which included spreading jurors out in the gallery and requiring masks. Trial days will go 9-3 and "we'll adjust as necessary."
11:58 AM · Feb 4, 2022·
Judge Davila says the court's technology is currently working and "I'll have my masking tape ready" in case anything goes wrong. (Anyone remember the lamp in the witness box during Holmes' trial?)
12:03 PM · Feb 4, 2022·
Coopersmith notes the govt's witness list has ~175 people even though the DOJ only called ~30 witnesses during Holmes' trial. "It would be very helpful to pair that down sooner than later," he says. Prosecutor John Bostic says pretrial disclosures narrow the pool of witnesses.
12:07 PM · Feb 4, 2022
Balwani wants a row designated in court for Balwani's family during trial. The gov't also wants a row for federal agents. (They're assuming the media will cover this thing as closely as Holmes' trial, which I think is dead wrong - but maybe that's just me.)
12:10 PM · Feb 4, 2022
Balwani's counsel Steve Cazares wants the judge to bar the gov't from arguing Theranos ran bogus tests on 3rd party devices. He says he doesn't know why the evidence was allowed in the Holmes trial and "what happened in the Holmes trial shouldn’t be applicable to Balwani’s case."
12:37 PM · Feb 4, 2022
Cazares says "the fact is the indictment has mistakes" and inaccurately says HIV and gonorrhea tests were done on Theranos devices. Prosecutor Bostic says defense counsel's "hyper-technical" analysis of the indictment is inappropriate. The judge held off on ruling. Moving on...
12:42 PM · Feb 4, 2022
Balwani's counsel wants the Sept 2015 CMS report on Theranos excluded from trial - something Holmes' counsel also argued extensively and unsuccessfully throughout her trial.
12:58 PM · Feb 4, 2022·
The parties are arguing over Balwani's bid to exclude evidence that Theranos voided millions of test results in 2016 after CMS' inspection. Balwani's atty says voidint the tests was a "voluntary measure to promote public safety. They didn’t have to do any of that."
1:22 PM · Feb 4, 2022
Balwani's counsel wants Judge Davila to bar prosecutors from asking ex-Theranos lab director Kingshuk Das about voiding tests. The judge suggests the motion is premature, and he seems surprised that Balwani's counsel submitted 10 pages of questions they want off limits at trial.
2:17 PM · Feb 4, 2022
Moving on to another motion. Balwani’s counsel wants the judge to limit whistleblower Erika Cheung’s testimony on various topics - like failure rates and vitamin d - but prosecutor says the request is premature and such an order would be 'difficult to craft.'
2:43 PM · Feb 4, 2022
Balwani's counsel wants text exchanges b/w Holmes and Balwani in Oct 2015 excluded from trial. The texts were introduced in Holmes' trial and they mention "death," "sex," "murder" and "filfth." The atty says the text exchange is irrelevant and "just confusing."
2:55 PM · Feb 4, 2022
Prosecutor Jeff Schenk says the texts are relevant and proves "knowledge and intent" by Balwani that there was scheme to defraud, and Holmes testified they were about John Carreyrou's WSJ article and Rupert Murdoch.
2:57 PM · Feb 4, 2022
Balwani’s counsel also wants excluded texts with Holmes about Carreyrpu’s French heritage and his texts about women over 40. The atty says they’re irrelevant. The judge doesn’t seem to want to decide the matter rn.
3:12 PM · Feb 4, 2022
