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.

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