Elizabeth Holmes trial – more comments

I’m still not attending the trial in person, but I’ve read some detailed reports of the last few days. They spur me to comment on the prosecution’s strategy; in short, it’s risky. The government chose to indict both Holmes and Balwani on eleven counts. Two are conspiracy counts and the rest are wire fraud.

This means they have to introduce evidence on each of those counts more or less like a minitrial. For example, If Holmes held a meeting with investors A, B, and C the government must bring in A, B, and C, or their financial advisers, to testify what each heard her say and what documents or slides were presented and that they relied on those statements or documents. This means the jurors have to hear three different people, maybe more, verify the same twenty slides, emails or oral statements. This becomes repetitive.

Worse, the AUSA doesn’t just hand the document to the witness (while the jurors see a copy on a screen) and ask them if this is a display at that meeting. They have chosen to introduce every such document or statement by reading it into the record slowly. For example,

"Mr. Jones, you've already testified that this document was presented by Ms. Holmes."
"That's right"
"Do you see the highlighted line in the middle of the page that says [blah, blah]"

The prosecutors apparently do not trust the jurors to actually read the thousands of documents, so they feel they have to force them to get every word by reading them out loud, including the same ones over and over. This is overkill. It is necessary to a point because the judge could dismiss counts if evidence is not represented on each element of each count. But the jurors are going bat shit crazy bored. That last dismissed juror was playing Sudoku during testimony. I’m sure many of the others have tuned out. They may resent the prosecutors for putting them through this, although the defense is just as wordy. The only bright note I see is that Judge Davila has finally decided to go five days a week. It’s about time. I’ll venture a guess that he’s going to have to sequester them before the evidence portion is over.

There is good reason to bring multiple counts; several reasons, in fact. For one thing, sentencing in white collar cases is very strongly determined by dollar loss (or ill-gotten gains). More victims means more money shown to have been lost. But once the scale of the largest three or four victims’ losses are known, the rest really doesn’t matter for sentencing. A more important reason is to give jurors a way to compromise. If there are jurors who think she’s guilty but harbor sympathies for her and are dragging their feet, the majority can persuade them by agreeing to convict her of only two or three counts to let her off easy, even though the judge has instructed them they cannot take into account sentencing. Jurors don’t realize that such a compromise doesn’t have the effect they think. The judge can take into account the total dollar loss or other factors (e.g. mental anguish to a victim) during sentencing for counts that did not result in a conviction as long as there was sufficient evidence introduced. In other words, the conviction may be for counts 1 and 2, but the sentence could be for all eleven counts. Yet another reason for the multiple counts is to make it clear that the misstatements weren’t just an occasional mistake but constituted a persistent pattern of lies. Even so, the prosecution should have culled its evidence more strictly as they realized this judge was going to drag things out. They’ve risked losing the jury both in the sense of loss of attention and loss of alternates that could result from more extensions. Every day that passes increases the chance that some emergency or misconduct could cause the loss of another juror.

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