Monthly Archives: October 2021

Elizabeth Holmes trial – week 7

I have not attended the trial for the last two weeks. Instead I have been following primarily through the excellent coverage by Adam Lashinsky of and Erin Woo and Erin Griffith of the New York Times as well as local television news reports. I have concluded that attending the trial is largely an exercise in self-punishment, primarily due to the very poor trial management by Judge Davila. More on that in a minute. So my reporting is second-hand, but I have my own perspective on it.

The last ten days or so was the best yet for the prosecution. This is because it brought out evidence that is more relatable to the jurors. It introduced a recording of Holmes so the jurors could hear her in her own words for the first time. Even better, after a legal skirmish over admissibility, it introduced a television interview of Holmes so the jurors could see her “up close” and without a mask as she made false claims. In particular she claimed that the Theranos machines could perform over 100 blood tests. Previous testimony by others made clear the devices could not. She also asserted confidently that she was the CEO and fully responsible for everything at Theranos.

Great. So what’s in store for this week: nothing! Why? Because of Judge Davila’s incompetence. I do not use that word lightly as I respect the judge and feel he is a reasonably bright fellow. But he is obviously cowed by the spotlight on this trial and so afraid of reversal, or possibly even bad press, that he is being overly cautious. He has made bad decisions that force the trial to be much longer than necessary, e.g. holding the trial only three days a week and dismissing at 2:00PM or 3:00PM. He has reversed both those decisions, realizing that he is risking losing more jurors to boredom or simply attrition, resulting in a mistrial. The latest bad decision happened yesterday when he dismissed the jurors for the rest of the week because the water was off in the courtroom due to a water main break. Soon after he did so, the break was repaired and water restored. Why send them home for the entire week? Did he even send someone down to check with the nearby workmen to get an estimate of how long it would take to repair? See my previous posts for how he mishandled the juror dismissals. By the way, yet another one was dismissed for playing Sudoku.

Even more troubling is his handling of the testimony portion. The prosecution has been extremely repetitive, asking the same question in a dozen different ways, or even the same way of the same witness. Recapping testimony from an earlier part can be useful and valid, but too much will bore and alienate the jury, and in this case, risk losing too many jurors and causing the mistrial. The judge could have, outside the jury’s hearing,  instructed the AUSA to “move along.” A good judge does. There’s no risk of reversal because the prosecution can’t appeal an acquittal. I served as a judge pro tem, running criminal trials (okay, they were only traffic cases, but trials nonetheless), and I’ve litigated enough to be confident this can be done. Of course, the prosecutors should have been more disciplined and bear much of the responsibility.

My next comments may be more controversial if anyone bothers to read them. I think Davila just isn’t qualified to be a federal judge. I’m an unabashed elitist. Somehow it has become politically incorrect to say out loud that some people aren’t smart enough to do a job or that  people who attended top schools are better in some way. Judge Davila graduated from Hastings College of the Law, a decent, but second tier, law school. It’s a school in the University of California system, but it ranks behind the one at UCLA and way behind Boalt Hall (now called Berkeley Law) in the grades and test scores required to get in. Full disclosure: I attended Boalt. I was accepted at Hastings, but it was my “safety school.” I believe federal judges should be trained at top law schools, not because the training is better, but because they are more selective and more demanding of their students.

It boils down to intelligence and industry. All those politically incorrect IQ test and SAT scores (recently abandoned by the UC system) actually mean something. Going from UCSB (where I started college) to UC Berkeley (where I finished) to Boalt Hall was like going from high school junior varsity to college Division I to the NFL. The superior level of ability of my classmates at each step was patently obvious. I feel federal judges should be top intellects. Sadly, politics is the more predominant reason for most judicial appointments. The fact is, the job of a trial court judge is not a pleasant one, and not all that well paid compared to what top lawyers can get. You seldom get top intellects wanting the position. Still, I will also admit that some of the best judges I’ve appeared before have gone to second-tier schools. Judge Davila just isn’t one of them.

Fitcamx dashcam video

I recently bought a new toy: a fitcamx dashcam for my Volvo XC40 P8. It has an advantage over other dashcams in that it connects to the power supply feeding the anti-glare mirror. It snaps into place just behind the mirror and looks like original equipment. Other brands feed a cable around the header lining and across the dash to plug into a USB port. Installation was a bear for me and took over 30 minutes, but others I know claim to have done it in less than 10 minutes. I have arthritis in my hands, so maybe you’ll have no trouble.

For this post I’d like to focus on what it’s good for once installed. The main purpose for dashcams is generally to provide proof in case of an accident.

Here’s a car video I took yesterday in Los Gatos, California.

The resolution on this video isn’t great, but that’s because WordPress won’t allow upload of the original file size (205MB). I had to upload the original to YouTube and then download it after it was processed there. YouTube limits the size. The downloaded version posted here is 16MB and is much lower resolution.

Native PC apps like Movies and TV and Movie Maker also won’t play the original file. I got an error message saying it was recorded using an unsupported codec. I followed the manufacturer’s recommendation and downloaded KMPlayer. It handles the original well with high resolution. Here’s a screen shot from their video, but WordPress has also reduced the resolution for this one. It’s sharper when viewed directly on my PC.

I’m sure there must be good video editing tools out there that can handle it, but Movie Maker only handles the low-res version. I found a free format conversion utility (Format Factory) that was able to accept the original and reduce the size and resolution enough so that the output file could be edited with Movie Maker. That file size was 40MB but other sizes could be chosen.

I’ve only had it for one day, so I have a learning curve ahead of me. When it runs out of space it overwrites the oldest files that haven’t been “locked”. The camera supposedly locks the video if there’s a sudden stop or impact so it won’t get overwritten. You can download to your phone using an app that comes with the camera. The app connects with the camera using wi-fi. I thought the camera ran continuously while the car was on in a loop, and saved every one-minute segment in a file. When I checked the camera “album” it appeared to me that there were gaps in the time sequence, so I’m not sure it is constantly recording, but perhaps I didn’t examine things carefully enough. I’ll post about it again if I learn more of interest or have misinformation here to correct.

The manufacturer in Hong Kong is very responsive. My first order got lost in transit. When I inquired of them, they immediately sent another one by express delivery. They’ve also replied to emails promptly.

American Dirt by Jeanine Cummins

American DirtAmerican Dirt by Jeanine Cummins
My rating: 1 of 5 stars

My low rating has nothing to do with racism, cultural appropriation or any controversy. I wasn’t even aware of the controversy before giving up on the book and starting this review. I learned about it only from reading other reviews moments ago. For the record, I’m white but my wife’s grandfather emigrated from Mexico and two of my grandchildren are Mexican, i.e. Mexican citizens living in Mexico, not just Mexican-Americans.

Having gotten that out of the way, why do I rate it at one star? Because the book is missing pages! That’s right. Pages 119 through 150 simply aren’t there. There was obviously some production error at the printer. A big chunk of the story is gone. Not only that, pages 151 through 182 are repeated, the second batch coming right after the first. I suppose I could return the book and try to get a better copy, but I wasn’t all that impressed with it. I found much of it implausible and the writing adequate but unexciting. What could have and should have been suspenseful and thrilling just wasn’t.

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Red state, Blue state, Yellow state, Gold state

There is so much in the news and pop culture about the political divide in America and the red vs. blue state dichotomy that I thought it would be nice to show how states can determine their color, and their fellow states’ colors, a different way. Every state has a state flower. Here’s how their colors are distributed.

Of course many, perhaps all, flowers have varieties in different colors, so no single color represents all flowers of that species, but for each I chose a shade that I thought best represented that type. All the roses, for example, are red, even though there are different varieties for different states. I lumped together types that aren’t related, but have the same general color, such as the goldenrod and the golden poppy. When you look at the map, we don’t seem so divided along political lines anymore. Perhaps this will allow you to view the common values you share with states on “the other side.”

One of Us is Lying by Karen McManus

One of Us Is LyingOne of Us Is Lying by Karen M. McManus
My rating: 3 of 5 stars

I added this book to my to-read list when I saw it ranked #2 on a recent Goodreads mystery poll. I’d never heard of McManus and didn’t know she wrote exclusively Young Adult (YA) novels, i.e. books for teens. So I was taken aback when I began reading and was inundated with teens mooning and swooning over cute dimples and short skirts and obsessing over pimples and bad hair. I suppressed my gag reflex long enough to become engaged with the mystery at the heart of the plot. It’s actually rather well done. I did guess who the killer was before the end, but there were enough red herrings to keep it interesting. I can’t really recommend this to to adult readers, but we were all teenagers once, so if you allow yourself to put yourself back in that mindset and just go with it, you can enjoy the book.

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Elizabeth Holmes trial updates

This morning was almost entirely wasted by the judge questioning jurors in private about how they would feel if their juror questionnaires were released to the press. A consortium of press entities has requested that they be made public. I say this time is wasted because the judge eventually (hours later) said that he would have to hear legal arguments and authorities on the question in a hearing, which in view of the crowded court docket, couldn’t take place until at least five weeks from now. He could have ruled that way immediately and saved those hours for trial testimony. The trial may be over by the time he rules on the issue. If not, the jurors could always be questioned about it at that time.

According to my sources the government is expected to rest in early November, but estimates are in constant flux because of non-evidentiary sideline issues like this delaying the trial. I’ll be surprised if the trial ends before January.

When they finally got to trial testimony, Wade Miquelon, a former Walgreens executive, was questioned further by AUSA Jeff Schenk about the representations made by Holmes and her co-defendant Balwani that led to a deal between those two companies. It was rather plodding stuff with most of the focus being on Theranos’s claims that the tests would be using fingerstick blood, not venous blood draws, and that testing would be done by the Theranos Edison, not third party machines. The questions were highly repetitive, showing document after document with such representations. The judge could have limited this as cumulative, but he hasn’t shown any ability to keep things moving.  In the early cross-examination the defense did little damage. They seemed to be helping the prosecution or just trying to bore the jury to death, but I didn’t stay through the questioning after lunch.

One tidbit that surprised me is that the main law enforcement presence, i.e. investigator, at least for this part of the trail, is an FDA agent, not an FBI agent. It makes sense in this case, of course, but it’s unusual in my experience. Another one is that the behemoth law firm Latham and Watkins had done the due diligence investigation of Theranos for Walgreens before the original deal was struck with the two companies. I’ll bet their malpractice insurer received a hefty claim. It’s amazing how many supposedly competent people were bamboozled by Holmes.

Noise: A Flaw in Human Judgment by Daniel Kahneman

Noise: A Flaw in Human JudgmentNoise: A Flaw in Human Judgment by Daniel Kahneman
My rating: 3 of 5 stars

This dry tome is a rigorous academic review of the title issue: noise. Noise is distinguished from bias, and the author describes how both affect decision making and introduce errors in judgment. Examples include how criminal sentences vary greatly for nearly identical offenses, how individuals judge more harshly on the Monday after their hometown team lost than they do if the team won, how insurance claims adjusters evaluate losses differently, and many others. It provides some useful guidance for some decision makers, but for most people it does little more that provide a few counterintuitive curiosities, which can be entertaining. For the academic in this field, it is a well-documented exploration of the topic and worth reading and keeping as a reference.

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The Holmes trial – observations

Judge Davila, the presiding judge over the Elizabeth Holmes trial, is an exceedingly gentlemanly, one might even say courtly (pun intended), judge. However, he is not efficient. I have spent decades in and out of both federal and state courts and I can tell you this with confidence. He repeats himself and waffles on questions that should be handled with a quick ruling. His rulings seemed very reasonable to me, but he is extending this trial unnecessarily. I don’t wish to be mean-spirited but he doesn’t seem that sharp. At one point he referred to witness Rosendorff as Mr. Rosenberg and he repeatedly pronounced the company name thuh-RAH-nose, accent on the second syllable. Everyone else pronounces it THARE-uh-nose.

The AUSA (Bostic) and the defense counsel (there were several) seemed unusually deferential to the judge (although, of course, all lawyers must defer), and quite competent. This was a much quieter environment than I’m used to in Superior Court, especially on Law and Motion days. It’s one of the reasons I preferred to litigate in federal court. Much of the seeming calmness can be attributed to the Covid-19 restrictions, with limited seating and required masks. Both sides made their points well enough, but there were no bombshells.

It strikes me that there was some unwarranted gamesmanship going on. Both of the jurors who asked to be excused should have been excused before the trial began, removing or at least reducing the risk of a mistrial due to running out of jurors. It’s not clear where the fault for that lies. The jurors were probably less than honest or forthcoming in their initial questioning during voir dire. I suspect they are only now realizing how onerous the burden before them is and are looking for any excuse to get off. It may also be the case that one or both of the lawyers should have questioned these jurors more carefully and challenged them either for cause or by use of a peremptory challenge. However, the judge may not have allowed the attorneys sufficient challenges, discouraging this, and he may not have allowed for a sufficient number of alternate jurors in the first place. Maybe they’re all to blame.

Another example of the gamesmanship is that question Bostic asked that was later struck. The defense could have objected at the time it was asked, but instead let it ride, hoping to create the opportunity as described in my prior post. I’m surprised the judge didn’t mention that in justifying his ruling. Of course, defense may have also not wanted to bring attention to that question (and its likely answer) in front of the jury. Bostic also did not object to the judge’s striking the question and answer because the jurors had already heard both, and an instruction to the jury to disregard it just reemphasizes the point, or as the defnese put it, “you can’t unring the bell.”

Holmes made an impression of sorts, although not the one most news outlets seem to harp on. I did not find her striking, although she has nice hair, i.e. expensive looking and very blonde. The most noticeable thing to me about her was how tall she sits. Sitting at the defense table she was half a head taller than either of the male attorneys on each side. Standing she seemed fairly tall, but nothing like she did sitting. She may have been wearing heels of some sort, but that wouldn’t affect her sitting height. I didn’t see anything different about her chair, so I guess she’s just really long in the waist.

The jurors were a motley crew. There was a chubby young guy looking very blue collar and a slim white-haired fellow looking like a 60-year-old runner. He had an intent look, while several of the jurors rarely looked at the witness. They each had screens in front of them which were continually displaying exhibits, mostly emails. The AUSA must have been trained to get those off the screen fast once he was on the next line of questioning. He was quick to ask for that. He wanted the jurors to be paying attention to the witness, not reading emails. I was a bit surprised that the judge mentioned that jurors are brought in from as far away as Santa Cruz County and even Monterey County. This is a much broader geographic pool than used in county courts.

The Elizabeth Holmes trial

Today I watched the trial in a San Jose federal courthouse of Theranos founder Elizabeth Holmes. This was week five of the trial. Scheduled today was redirect examination of the prosecution witness former Theranos Lab Director Adam Rosendorff.  Instead it began with a surprise: a juror asked to speak with the judge. This had to be done in open court, although out of the presence of the other jurors. The juror, an Asian woman with a strong accent, was a Buddhist. According to her, because of her religion, she felt she must forgive and was in doubt whether she could ever vote to send someone to jail. She commented about Holmes “She’s so young.” The Assistant U.S. Attorney (AUSA) argued for her removal as a juror and that met with no objection from the defense despite the fact that she would presumably be favorable to the defense. The judge removed her.

This was quickly followed by a request from the alternate juror who was called upon to replace the Asian woman. This juror, another immigrant, claimed to have trouble because English was her second language and because she had never been a juror. The judge explained that many jurors have English as a second language and the juror had already been questioned about her English, which she previously had said was good. She sounded fluent to me. The AUSA objected to her removal and the juror was not excused.

I feel certain that the reason the defense did not object to the removal of the first juror is that she would be the second juror to be removed, thus reducing the number of alternates to three from the original five. If granted, at the rate it’s going, there could very well be too few jurors by the end of the trial, which would result in a mistrial and the government would have to start all over or drop the case. That’s also probably why the prosecution did object to the removal of the second juror.

After those developments the redirect of Mr. Rosendorff resumed. The prosecution used that occasion to paint Theranos in general and Holmes in particular as using faulty Theranos devices, called Edisons, for patient blood tests even though they knew the results weren’t accurate, thus endangering patients. The defense then questioned him again on re-cross. In between, though, there was an argument about the AUSA’s final question on redirect. He had asked the witness how Theranos compared to other labs he had directed when it came to problems and questions from physicians who distrusted the results. The answer had been that Theranos was much worse than any other. The defense wanted to use this to open up questioning about a host of other labs and their problems. The judge waffled on this and eventually agreed to give a curative instruction to the jurors, striking that question and answer, but denying him the right to question about other labs.

That’s the basic newsy stuff prior to lunch. I didn’t stay for the afternoon session. In my next post I’ll give you some of my own impressions of the people, the court, and the process.

The Lady Astronaut of Mars by Mary Robinette Kowal

The Lady Astronaut of MarsThe Lady Astronaut of Mars by Mary Robinette Kowal
My rating: 3 of 5 stars

Although listed as a “novelette,” this book is really just a short story. It should be considered nothing more than a snack, not that snacks are bad. The protagonist is/was the first woman to Mars and is now, at age 63, living on that planet with her dying husband. The story is all about the conflict between her yearning to return to space and her desire to stay with her husband to the bitter end. It’s nicely written but with one very odd anomaly: all computer programming is done using punch cards and magnetic tape. Huh? And maybe abacuses? No matter when this is supposed to be taking place, Mars colonization and computer punch cards are not contemporaneous.

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The Cover Wife by Dan Fesperman

The Cover WifeThe Cover Wife by Dan Fesperman
My rating: 5 of 5 stars

This top-notch thriller was a bit of a surprise to me. I knew it was a CIA-related story and not current day and had high reviews. I thought it was going to be yet another Cold War Soviet vs. The West story, a genre that I think is past its prime. Instead it turned out to be set in 1999 in Germany involving the West vs. Al Qaeda, not the Soviets.

The story had its share of exaggerations and dramatizations that render it inaccurate, but it has captured the look and feel of real operations against high-profile targets. As a retired FBI agent who worked counterintelligence for most of my career, I can attest to this. I was pleased to see the CIA and FBI agents working together, at least at the street level. The author resorted to the stale trope of inter-agency rivalry at the higher levels, which makes for drama but is totally unrealistic. Still, the story never lost the patina of credibility. The protagonist, Claire, is a bit too much of a TV version heroine – very good-looking, capable of taking down men in hand-to-hand combat, and so on, but there was very little of that. It was largely an accurate portrayal of what surveillance is like and all the things that can go wrong when the lines of communications are not good. It also tells the story from the viewpoint of a member of the Al Qaeda group being monitored. The suspense builds throughout on both sides of the line.

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