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 businessinsider.com 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.

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