Judge in Theranos trial outlines COVID-19 protocols as US cases rise

Founder and former CEO Elizabeth Holmes says she would prefer not to wear a mask

Attorneys for Theranos Inc. founder Elizabeth Holmes told a federal judge on Monday that she plans to attend her criminal fraud trial with three family members or friends by her side and strongly prefers not to wear a face mask.

Preventative measures against Covid-19 were on display in the courtroom here as Ms. Holmes and prosecutors prepared for the high-stakes Silicon Valley trial. Plexiglass panels were erected in front of the judge, at the lecterns where attorneys speak and at the end of the jury box. U.S. District Judge Edward Davila said he would ask that jurors wear masks and they may be asked about their vaccination status.

The Delta variant’s spread has pushed up Covid-19 case numbers across the U.S.

Elizabeth Holmes, founder and former CEO of Theranos, arrives for motion hearing on Monday, November 4, 2019, at the U.S. District Court House inside Robert F. Peckham Federal Building in San Jose, California. (Yichuan Cao/NurPhoto via Getty Images) (Getty Images)


Judge Davila said everyone should be prepared for a court recess or other interruption if there is a Covid-19 outbreak. The trial already was delayed repeatedly due to the pandemic and because Ms. Holmes was pregnant with a child, who was born last month in Redwood City, Calif.

Witnesses likely won’t wear masks, Judge Davila said, so jurors can judge their full demeanor during testimony. He also said he may advise clear face shields for witnesses in some circumstances. Air filters will be placed around the courtroom, including next to Ms. Holmes, who has a "strong preference" to be maskless, said her attorney Kevin Downey from Washington law firm Williams & Connolly LLP.

During the pandemic, some judges have allowed defendants to make their own decision about wearing a mask while in the presence of the jury.

Opening statements are set to begin Sept. 8, the epilogue to one of the most spectacular implosions of a Silicon Valley startup. Adding to the drama is the backdrop of the persistent dangers of the pandemic, with cases and hospitalizations surging, driven by the highly contagious Delta variant.


Ms. Holmes, the former chief executive of defunct blood-testing startup Theranos made her first in-person court appearance since June as her attorneys sparred with federal prosecutors over the process of selecting a jury ahead of the hotly anticipated trial.

As Ms. Holmes looked on, her lawyers made their case to the judge for a more extensive jury questioning and instruction process, a reflection in part of the intense media coverage that has followed Ms. Holmes.

Ms. Holmes faces a dozen counts of wire fraud and conspiracy to commit wire fraud for what federal prosecutors say was a scheme to defraud investors and patients about the nature of Theranos’s technology. Jury selection for her trial begins Aug. 31 and will likely take two days.

In response to a request from government prosecutors, Judge Davila increased the number of alternate jurors to five from four.

A separate trial for Ramesh "Sunny" Balwani, a former Theranos executive and Ms. Holmes’s onetime boyfriend, who faces the same dozen charges, is slated to begin early next year.

Sunny Balwani, former president and chief operating officer of Theranos Inc., arrives at federal court in San Jose, California, U.S., on Wednesday, Oct. 2, 2019.  (Michael Short/Bloomberg via Getty Images)

Another one of Ms. Holmes’s attorneys, Amy Mason Saharia, requested extensive additions to the typical instructions that juries normally receive ahead of trial.

Among other proposals, Ms. Saharia also wanted to inform jurors that what they have read in the media about Theranos could be misleading, and to put jurors through extra, individual questioning about their media consumption before the trial.


"Our client is the subject of very intense media scrutiny," Ms. Saharia told the judge.

U.S. prosecutors called the demands overkill. Judge Davila denied Ms. Saharia’s request to go beyond typical jury instructions on the matter.

Ms. Holmes and Mr. Balwani have each pleaded not guilty. If convicted, they face prison time, fines and restitution to victims.

The indictment from the U.S. government alleges the pair engaged in a scheme to defraud patients, doctors and investors by touting the ability of Theranos’s proprietary blood-testing device to accurately test for a range of health conditions using a few drops of blood from a finger prick, when they knew it was unreliable and performed a limited number of tests. It also says they misrepresented the company’s financial condition to potential investors.

The Wall Street Journal first reported in 2015 that Theranos’s proprietary technology was unreliable and the company often ran tests on commercial analyzers, including some that it modified to be able to use smaller amounts of blood. The Journal has also reported on inaccurate results given to patients who took Theranos tests, including falsely signaling a miscarriage instead of a healthy pregnancy and claiming patients were HIV positive who weren’t.


Theranos, once valued at more than $9 billion, shut down in 2018.

The trial is expected to last until December, but trial will take place only three days a week and will last until about 2 p.m., Judge Davila said Monday. "It is a long trial," he said.

Another court hearing is scheduled for Friday, when Judge Davila will hear arguments regarding motions made by Ms. Holmes to exclude particular pieces of evidence from trial, including certain news articles and portions of government agency reports.

Sara Randazzo contributed to this article.