Came looking for updates from yesterday's hearing - so - thought I would give you a break
@UndiscoveredTruth - and will post those tweets for ya!
Dorothy Atkins
@doratki
·
18h
I’m in San Jose for Elizabeth Holmes’ charging conference & a hearing on jury instructions, which apparently no one cares about. There’s no line, no overflow room, and it’s the 1st time I got the 1st ticket inside. (The security guard told me I could add it to my collection lolz)
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Holmes' counsel have raised a few objections to the gov't's proposed jury instructions, which are mostly based on the 9th Circuit model instructions. They argue that the instructions don't do enough to explain "presumed innocent" and the "beyond a reasonable doubt" standard.
Attys are in the courtroom. Holmes is not. Everyone seems more relaxed today. An attorney says "I guess the journalists don't care about this." Another atty points to me & says "she's here." The clerk says, "It's Friday!" But adds, "It doesn't mean anything for us" - got a laugh.
Elizabeth Holmes is in the courtroom. Her mom is here too. (The Bloomberg reporter arrived as well, so I'm now not the only journo in the room.) Let's get this show on the road!
Judge Ed Davila is in the courtroom and observes that there's "not a dearth of binders" at his bench. Holmes' counsel Amy Saharia says "we suffer from the same problem, your honor." But the judge notes that the attorneys have more space at counsel table.
Saharia says Holmes wants to reserve her right to propose additional instructions after the close of evidence, and prosecutor Kelly Volkar wants to focus on the "substantive" jury instructions. Judge Davila agrees w/ both points and says today is just a "high level" discussion.
Holmes' atty Amy Saharia wants the judge to separate jury instructions describing the conspiracy to commit wire fraud of investors and conspiracy wire fraud for patients. She says it's too confusing to lump them together b/c they're dif alleged schemes. Prosecutor disagrees.
Holmes' counsel Amy Saharia: "It’s going to get very complicated, we think, for the jury to understand how the different charges [relate] if you're mixing and matching schemes."
Prosecutor Kelly Volkar: "breaking out what would be one instruction to 10-15 pages and adding significant detail" is unnecessary, b/c the gov’ts instructions are "tried and true." Instructions "should be legally correct, they should be clear and they should be brief," she says.
Judge Davila notes that there isn't a 9th Circ model instruction defining "willfulness" and wants the attorneys to meet and try to agree on a definition. Holmes' counsel says they want to use the willful def in Bryan v US, which is "acted w/ knowledge that conduct was unlawful."
Prosecutor Kelly Volkar says the gov't doesn't think they should mention "willful" at all, and the mens rea standard is more about Holmes' knowledge of the crime.
Prosecutor Robert Leach argues the Bryant case involved firearms and set a "significantly higher" mental state standard than required for conspiracy to commit wire fraud. "Willfully is a word with different meanings in different context" and "there's no need for a def here."
Judge Davila won't rule on the willful language, but he notes that the gov't proposed including the word "willful" in their jury instructions, which are modeled after the 9th Circ. He also tells defense counsel that their proposed instructions "seem to be lengthy" & need editing.
(I've been covering this case blow-by-blow since the indictment was filed in 2018 and tbh I'm still confused about the different counts/charges, and this hearing isn't helping.)
Holmes' counsel Amy Saharia takes issue with prosecutors' proposed jury instruction that says "a defendant’s actions can constitute a scheme to defraud even if there are no specific false statements involved." Saharia says it's "highly misleading," confusing and inaccurate.
Prosecutor Kelly Volkar defends the statement & notes the gov't used it in other high-profile wire fraud criminal case against Autonomy's former chief financial officer, Sushovan Hussain. But the judge says the gov't should rethink it and consider whether it applies in this case.
Defense also takes issue w/ the gov't instruction that it doesn't matter whether material transmitted by wire was false or deceptive as long as a wire was used in the scheme, "nor does it matter whether the scheme or plan was successful or that any money or property was obtained"
Holmes' counsel says it's unnecessary b/c the gov't alleges the scheme was successful and it's legally incorrect. Prosecutor says this sentence was also used in Hussain's case. (ICYMI here's my coverage of that trial which the 9th circ upheld)
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Prosecutor Robert Leach says the sentence should be included b/c the defense has suggested that Holmes isn't guilty b/c she never cashed in her stock and profited, and "we didn’t want jurors to think that profit is essential to [establish] motive here."
The attorneys aren't gonna agree on this one, so the judge will probably have to make the call on that. Moving on, Holmes' counsel wants the court to give a definition for "scheme to defraud," but again prosecutors say that's unnecessary.
The parties also disagree over whether the jury should be given a "good faith" instruction, which basically says Holmes' isn't guilty if she acted in good faith. Prosecutor Kelly Volkar thinks the instruction is not required and shouldn't be included.
Judge Davila asks the parties about scheduling. Holmes' counsel Kevin Downey says prosecutors told him they don't currently plan to call rebuttal witnesses, and "evidence will likely conclude during next week."
Judge Davila says the jury will get the case "certainly by the 20th." Prosecutor Robert Leach thinks they'll get it by at least the 17th. That's all for today.
link:
https://twitter.com/doratki
