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Law360 (July 22, 2020, 6:46 PM EDT ) Former Theranos CEO Elizabeth Holmes asked a California federal judge Tuesday for access to records regarding the selection of grand jurors who recently returned a fresh criminal indictment against her, saying she has "serious concerns" that changes in grand jury procedures caused by the pandemic have impacted her constitutional rights.
In a four-page motion, Holmes asked U.S. District Judge Edward Davila to authorize discovery into the grand jury selection process, arguing that she has a constitutional right under the Sixth Amendment to a jury drawn from a "fair cross section of the community." But changes to grand jury selection procedures that have occurred due to COVID-19 raise questions about whether her rights have been violated, she said.
"There are serious concerns as to whether the grand jury that returned the second superseding indictment was 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," the motion says.
The coronavirus has shaken up the high-profile criminal case against Holmes and Theranos' former Chief Operating Officer Ramesh "Sunny" Balwani, who face separate charges of defrauding investors and uninsured patients by making false claims about the capabilities of their once high-flying startup's blood-testing technology.
The pair were indicted in 2018 and Holmes was originally scheduled to face a monthslong jury trial that was planned to kick off with jury selection at the end of the month. But in the spring, Judge Davila pushed back Holmes' trial to October due to the coronavirus outbreak and set Balwani's trial for April 2021.
Meanwhile, prosecutors said they planned to file a superseding indictment against Holmes since Judge Davila had trimmed some charges from the indictment in February, but California's Northern District suspended grand juries in late April until an undisclosed date in June due to the pandemic.
As a result, prosecutors filed an information sheet listing their new charges instead and told the judge they planned to eventually replace it with a superseding indictment once they could convene a grand jury. However, Holmes and Balwani refused to consent to being charged by information sheet and filed a motion seeking to toss it.
Before Judge Davila decided the motion, the government filed a second superseding grand jury indictment on July 14, charging Holmes with two conspiracy counts and nine counts of wire fraud.
Earlier this week, Judge Davila held off on deciding the motion and questioned whether the defendants' efforts to scrap the information sheet were mooted by the new indictment.
The judge also said Holmes' upcoming October criminal jury trial date is "unrealistic" in light of challenges posed by the coronavirus pandemic, but he held off on setting a new trial date and added that he's "hopeful" to get her case tried in the first quarter of 2021.
On Tuesday, Holmes explained that she wants access to the grand jury records to potentially prepare a motion challenging the selection methods under the Jury Selection and Service Act.
Holmes said it's unclear when the grand jury was convened and what procedural changes occurred in light of COVID-19.
Holmes' counsel listed 21 different items of information that they seek regarding the grand jury selection process, including the number of jurors summoned, any data or analyses used to select potential jurors, the results of SurveyMonkey COVID-19 questionnaires sent to the prospective grand jurors and the attendance record and reasons for absence of each grand juror who returned the new indictment, among other things.
"The defense intends to review the records and, depending on their contents, to retain the services of an expert to analyze whether the procedures in selecting the grand jury violated Ms. Holmes' right to a jury selected at random from a fair cross section of the community," the motion says.
On Wednesday, Balwani sought to join Holmes' discovery motion.
A hearing on the motion is set for Aug. 17.
Balwani's counsel declined to comment Wednesday. A representative for the government and counsel for Holmes didn't immediately respond to requests for comment.
The government is represented by John C. Bostic, Jeffrey Schenk, Robert S. Leach and Vanessa Ann Baehr-Jones of the U.S. Attorney's Office for the Northern District of California.
Holmes is represented by Kevin Downey, Lance A. Wade, Amy Mason Saharia and Katherine Trefz of Williams & Connolly LLP and John Cline.
Balwani is represented by Jeffrey B. Coopersmith, Steve Cazares, Walter F. Brown, Melinda Haag and Randall S. Luskey of Orrick Herrington & Sutcliffe LLP.
The case is U.S. v. Holmes et al., case number 5:18-cr-00258, in the U.S. District Court for the Northern District of California.
--Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
