Elizabeth Holmes’ attorneys concerned about finding unbiased jurors

Former Theranos CEO Elizabeth Holmes, got permission on Tuesday to nurse her newborn child during breaks in her upcoming criminal fraud trial. Judge Edward Davila said there will be a designated “quiet room” for Holmes to tend to her child, who is due to be born next month.

Holmes is facing federal charges in connection with wire fraud and conspiracy to commit wire fraud regarding her now defunct healthcare tech start-up, Theranos. She has pled not guilty. Holmes’ trial, delayed several times due to the Covid-19 pandemic and her pregnancy, will be one of the highest profile criminal fraud trials in Silicon Valley history.

The infant accommodation for Holmes came as the judge whittled down her proposed 45-page, 112-question jury form to a 20-page draft.

Kevin Downey, an attorney for Holmes, raised objections to the judge’s simplified questionnaire, saying “if the jurors have a bias that’s not something they can decide. We cannot allow the jurors to assess their own bias without foundational questioning that cures that.”

Three hundred potential jurors from northern California will be summoned to complete a questionnaire on August 19 and 20. In-person jury selection and voir dire (juror questioning) will take place on August 31.

Holmes’ questionnaire asks potential jurors how often they read, watch or listen to certain journalists and news outlets, including CNBC.

“I know the defense is concerned primarily with media coverage,” Davila said. “They suggest it has been pejorative to Miss Holmes and we need to do something to secure a fair jury for her – and that’s what I’m trying to do.”

Davila suggested putting the tougher questions first, adding “there is a concept of questionnaire fatigue. At some point in time there is a diminished return on questionnaires and it actually becomes less than accurate the longer it is.”

Davila said he would not permit detailed questioning of every prospective juror, but assured the legal teams, “When we bring the jury in both sides are going to be perhaps surprised, perhaps delighted that many of them are not going to know anything about this case. That’s a reality of life.”

Prosecutors have called Holmes’ proposed list of questions “deeply intrusive in unnecessary ways.”

“If someone reads any one of the 46 publications or networks the defense wants to identity, that doesn’t tell us anything about what they know about Theranos,” said Kelly Volkar as assistant U.S. attorney. “Even if they did read a story once upon a time, that doesn’t necessarily mean they’ve retained it or have kept any sort of bias or prejudgment based on that one article.”

As Holmes walked into the courthouse she refused to answer questions from CNBC.

The two legal teams will review the judge’s questionnaire and he will make a final ruling in the coming weeks.

Danny Cevallos, an NBC News legal analyst, said it’ll be tough to find an impartial jury which has heard of the case but claims to be unbiased, “that juror could be a stealth juror—someone with an ax to grind but conceals it to get on the jury.”