Jury Voir Dire — Counsel Examination and Challenges
829 linesMR. SCHENK: THANK YOU. GOOD AFTERNOON. YOU HEARD MY NAME IS JEFF SCHENK, AND I REPRESENT THE UNITED STATES IN THIS PROSECUTION. I ONLY HAVE A COUPLE OF QUESTIONS ON A FEW TOPICS THAT I'D LIKE TO FOLLOW UP ON. THE FIRST IS THE JUDGE ASKED IF ANYBODY HAD PRECONCEIVED VIEWS OR OPINIONS ON LAW ENFORCEMENT AND IF A LAW ENFORCEMENT WITNESS TESTIFIED, WOULD THEY VIEW THAT TESTIMONY EITHER MORE FAVORABLY OR LESS FAVORABLY BASED ON THOSE PRIOR EXPERIENCES. I WANT TO EXPAND THAT TO THE MEDICAL PROFESSION, TO MEDICAL DOCTORS. ANYONE HAVE PRIOR EXPERIENCE WITH PHYSICIANS OR FOLKS IN THE MEDICAL INDUSTRY SO THAT IF YOU HEARD IN THIS TRIAL FROM DOCTORS, YOU MIGHT GIVE THAT TESTIMONY MORE OR LESS WEIGHT PURELY BASED ON THEIR PROFESSION? AND I NOTE THAT IN SOME QUESTIONNAIRES, INDIVIDUALS SAID THAT THEY HAD DISPUTES OVER BILLS BEFORE. I THINK, MR. RISHI, IF YOU'LL ALLOW ME TO PICK ON YOU, I THINK YOU MENTIONED THAT. I WONDER IF DISPUTES WITH BILLS OR WITH MEDICAL INSURANCE COMPANIES OR SOMETHING LIKE THAT WOULD LEAD YOU TO HAVE SOME FEELINGS ABOUT MEDICAL PROFESSIONAL 'S TESTIMONY IN THIS TRIAL? ANY HANDS? YES, SIR.
JUDGE DAVILA: THIS IS MR. CHUANG, I BELIEVE, YES.
JUROR: I WORK AS A REGISTERED NURSE IN THE HOSPITAL.
JUDGE DAVILA: JUST A SECOND, MR. CHUANG. WE'LL GET YOU THE MICROPHONE. THANK YOU FOR YOUR PATIENCE. WE HAVE MASKS ON AND THAT BECOMES DIFFICULT. I'M GOING TO DISCLOSE SOMETHING THAT IS COMMON KNOWLEDGE HERE IN THE COURTHOUSE, WE HAVE THE BEST COURT REPORTER IN THE COURTHOUSE HERE WORKING FOR US. BUT EVEN WITH ALL OF HER SKILLS, IT'S DIFFICULT TO HEAR WITH THE MASKS ON, SO WE'LL HAND YOU THE MICROPHONE TO ASSIST, THANK YOU.
JUROR: I WORK AS A REGISTERED NURSE IN THE HOSPITAL, SO I INTERACT WITH ALL KINDS OF MEDICAL PROFESSIONS. SO I MIGHT GIVE MORE WEIGHT, YOU KNOW, IF IT'S LIKE A DOCTOR OR A HEALTH CARE PROFESSIONAL GIVING TESTIMONIES.
MR. SCHENK: SO THERE ARE SOME INSTANCES WHEN A MEDICAL PROFESSIONAL MAY TESTIFY IN THE TRIAL AND THE COURT WOULD RECEIVE THEIR TESTIMONY AS AN EXPERT. SO THE COURT WOULD TELL YOU THAT BECAUSE OF THEIR TRAINING, YOU'RE ALLOWED TO HEAR THEIR OPINION ON CERTAIN TOPICS BECAUSE OF THAT EXPERTISE. IF YOU PUT THAT ASIDE, IF THERE ARE WITNESSES THAT TESTIFY, BUT WITHOUT BECOMING AN EXPERT, ARE JUST MEDICAL PROFESSIONALS, WOULD YOU ALSO GIVE THOSE INDIVIDUALS MORE WEIGHT OR WOULD YOU BE ABLE TO WEIGH THEIR TESTIMONY THE SAME AS ANY OTHER WITNESS?
JUROR: IF THEY'RE -- YOU'RE SAYING THAT THEY'RE NOT THE EXPERTS?
MR. SCHENK: CORRECT. IF THEY OBSERVED THINGS THAT THEY'RE COMING TO TELL YOU, "I OBSERVED THE FOLLOWING, I SAW THE FOLLOWING."
JUROR: NO. ONLY IF THEY'RE BEING CALLED AS THE EXPERTS, THEN YEAH.
MR. SCHENK: THANK YOU. ANY OTHER HANDS TO THAT QUESTION, MEDICAL PROFESSIONALS, EITHER MORE OR LESS WEIGHT IN YOUR MIND? THE JUDGE ALSO TALKED TO YOU A LITTLE BIT ABOUT YOUR OBLIGATION TO AVOID THE MEDIA, ESPECIALLY THE MEDIA ABOUT THIS CASE DURING THE TRIAL. I APPRECIATE THAT THAT IS GOING TO BE A CHALLENGE. WE HAVE ALREADY HEARD FROM INDIVIDUALS WHO HAVE SAID AFTER READING THE QUESTIONNAIRE, THEY HAVE APPRECIATED THAT THEY WERE NOT SUPPOSED TO LEARN MORE, RESEARCH, INVESTIGATE THIS CASE. BUT IT APPEARED ON THEIR PHONE. AND I'M JUST WONDERING IF ANYBODY HAS ANY CONCERNS WITH, NOW HAVING MORE TIME TO REFLECT ON THAT, WHETHER THAT'S GOING TO BE AN ISSUE FOR THEM. I WILL TELL YOU IT'S A CONCERN OF MINE. IT'S A CONCERN THAT THE CASE HAS A LOT OF PUBLICITY, AND WE DON'T CONTROL SOME OF THE MEDIA THAT GETS PRESENTED TO US THESE DAYS. THE JUDGE SUGGESTED TURNING OFF ALERTS ON YOUR PHONE AS ONE METHOD. BUT IT IS IMPORTANT FOR BOTH SIDES TO HAVE A FAIR TRIAL.
ONE OF THE WAYS THAT WE MAKE SURE THAT THE FAIR TRIAL OCCURS IS THAT EVERYBODY DECIDES THE CASE ON THE EVIDENCE PRESENTED IN THIS COURTROOM, THAT THE JURY IS ONLY EVALUATING FACTS THAT ARE PRESENTED TO IT THROUGH THE JUDGE AS THE GATEKEEPER TO ALLOW IN APPROPRIATE EVIDENCES. AND IF ALERTS POP UP ON YOUR PHONE AND YOU'RE TEMPTED TO FIGURE OUT WHAT HAPPENED IN COURT YESTERDAY THROUGH THE EYES OF A REPORTER, THAT BECOMES A PROBLEM FOR BOTH SIDES. I WANT TO ASK AGAIN, AND I KNOW THE JUDGE HAS ALREADY COVERED THIS WITH YOU, BUT, IS THERE ANYBODY WHO HAS A CONCERN WITH THEIR ABILITY TO TURN AWAY FROM THAT TYPE OF MEDIA, TO TURN OFF THE ALERTS, TO TURN OFF THE RADIO OR THE TELEVISION WHEN THIS TYPE OF STORY COMES ON? NO HANDS. OKAY. THE LAST TOPIC I WANTED TO TALK TO YOU ABOUT WAS TO FOLLOW UP ON THE JUDGE'S QUESTION REGARDING INTERPERSONAL ABUSE OR DOMESTIC VIOLENCE.
I DON'T WANT TO CALL ON INDIVIDUAL ONES, INDIVIDUALLY THE PEOPLE WHO SPOKE, BUT I WAS JUST WONDERING WHETHER ANYONE WHO DID SPEAK WILL SAY THAT THEIR PRIOR EXPERIENCE WILL AFFECT THEIR ABILITY TO HEAR THIS CASE FAIRLY. IF THEY HEAR EVIDENCE ABOUT THAT TOPIC, IS YOUR PRIOR EXPERIENCE GOING TO AFFECT YOUR ABILITY TO EVALUATE THE EVIDENCE THAT YOU HEAR IN THIS CASE? AND I APPRECIATE IT'S DIFFICULT BECAUSE YOU DON'T KNOW EXACTLY WHAT THE EVIDENCE IS GOING TO BE IN THIS CASE, SO I APOLOGIZE FOR ASKING A QUESTION WITHOUT SUFFICIENT FACTS TO ANSWER IT. BUT TO THE BEST OF YOUR ABILITY, IS THERE ANYONE WITH PRIOR EXPERIENCE THAT CAUSES YOU SOME CONCERN, OR IF THIS TESTIMONY COMES IN OR IF THAT TESTIMONY COMES IN, IS IT GOING TO TRIGGER FEELINGS THAT YOU'VE HAD, NOT NECESSARILY THAT YOU'RE GOING TO EVALUATE THE TESTIMONY OR THE EVIDENCE DIFFERENTLY, BUT THAT THIS JUST MIGHT NOT BE THE RIGHT CASE FOR YOU BECAUSE YOU PREFER NOT TO PUT YOURSELF IN THAT ENVIRONMENT BECAUSE YOU DON'T WANT TO HEAR THAT KIND OF TESTIMONY OR EVIDENCE IF IT COMES IN. I'M ANXIOUS TO HEAR IF SOMEBODY HAS PRIOR EXPERIENCES THAT SUGGESTS THAT THIS MIGHT TRIGGER THEM IN A WAY THAT THEY WOULD LIKE TO AVOID. ANY HANDS?
JUDGE DAVILA: WHY DON'T YOU COME UP TO THE LECTERN. IS THIS MR. LEE? I'M SORRY. DID YOU WANT TO SPEAK PRIVATELY ABOUT THIS, MR. LEE? ALL RIGHT. I THINK WE'RE GOING TO DO THAT AT AN APPROPRIATE TIME HERE. SO THANK YOU FOR CALLING THAT TO OUR ATTENTION AS WELL.
MR. SCHENK: THANK YOU, YOUR HONOR. NO FURTHER QUESTIONS.
JUDGE DAVILA: ALL RIGHT. THANK YOU. MR. DOWNEY, DO YOU HAVE QUESTIONS?
MR. DOWNEY: YES, YOUR HONOR. GOOD AFTERNOON, LADIES AND GENTLEMEN. THANK YOU FOR YOUR PATIENCE TODAY. IT'S CLEAR TO ME FROM THE DISCUSSION THAT ALL OF YOU HAVE HAD WITH JUDGE DAVILA AND MR. SCHENK THAT YOU'VE BEEN VERY HONEST IN RESPONSE TO BOTH THE QUESTIONNAIRES AND TO JUDGE DAVILA'S QUESTIONS DURING THE COURSE OF THE DAY. THAT'S WHAT THIS PROCESS IS ABOUT. AS JUDGE DAVILA SAID, THERE ARE SOME CASES WHERE A PARTICULAR PERSON MAY NOT BE THE IDEAL JUROR. SO I THANK YOU FOR YOUR HONESTY. I'M GOING TO ASK SOME OF YOU QUESTIONS INDIVIDUALLY AND I'M GOING TO ASK THE PANEL QUESTIONS GENERALLY. LET ME START THERE WITH A QUESTION THAT REALLY RELATES TO AN INSTRUCTION THAT YOU WILL RECEIVE DURING THE COURSE OF THIS CASE, WHICH WILL BE TO THE EFFECT THAT YOU'RE REQUIRED TO CONSIDER ALL OF THE EVIDENCE AND SUSPEND JUDGMENT UNTIL YOU HAVE HEARD ALL OF THE EVIDENCE AND BEGUN TO DISCUSS IT WITH YOUR FELLOW JURORS. IS THERE ANYONE HERE WHO, WHO FINDS IT DIFFICULT TO WAIT TO MAKE A DECISION? ANYONE HERE FOR WHOM THAT MIGHT BE A DIFFICULTY? I DON'T SEE ANY HANDS RAISING IN RESPONSE TO THAT. IS THERE ANYONE WHO PREFERS TO WAIT UNTIL THEY HEAR ALL OF THE INFORMATION BEFORE MAKING ANY DECISION, A BASIC DECISION IN LIFE, WHETHER THEY'LL BUY A CAR, WHETHER THEY'LL BUY A HOME, WHERE THEY MIGHT SEND THEIR CHILD TO SCHOOL? ANYBODY HERE WHO PREFERS TO HAVE ALL OF THE INFORMATION? ANYONE HERE WHO FEELS THAT THEY'RE IMPATIENT AND THEY DON'T WANT TO WAIT FOR ALL OF THE INFORMATION? I SEE NO HANDS IN RESPONSE TO THAT. OKAY. THANK YOU, LADIES AND GENTLEMEN. MAY I START WITH YOU, SIR, WHO RAISED YOUR HAND IN RESPONSE TO THAT QUESTION. WHAT IS YOUR JUROR NUMBER?
JUROR: 64.
JUDGE DAVILA: MR. NIZENKOFF.
MR. DOWNEY: YEAH. CAN YOU TELL ME, IN CONNECTION WITH YOUR DECISION MAKING PROCESS, ARE YOU CONFIDENT THAT YOU'LL BE ABLE TO WAIT AND HEAR ALL OF THE EVIDENCE BEFORE YOU MAKE A DECISION?
JUROR: YES, MOST DEFINITELY.
MR. DOWNEY: OKAY. IS THERE ANYBODY HERE WHO FEELS THAT THEY WON'T BE ABLE TO DO THAT? OKAY. THANK YOU. I'D LIKE TO ASK SOME OF YOU QUESTIONS INDIVIDUALLY, AND I'LL MENTION YOUR JUROR NUMBER. I DON'T HAVE QUESTIONS FOR EACH OF YOU. THAT DOESN'T REFLECT ONE WAY OR THE OTHER ON ANY PARTICULAR JUROR. LET ME ASK JUROR NUMBER 1, WHO I DON'T THINK WE'VE HEARD FROM THIS MORNING. IS IT MR. SOMADUNDARAM? SIR, YOU FILLED OUT A QUESTIONNAIRE A FEW WEEKS AGO, AND I THINK IN THAT QUESTIONNAIRE YOU INDICATED THAT YOU HAD HAD SOME EXPOSURE TO MEDIA ABOUT THIS CASE. CAN YOU TELL US WHAT THAT EXPOSURE HAS BEEN?
JUROR: JUST --
JUDGE DAVILA: WE'RE GOING TO GIVE YOU A MICROPHONE, SIR. I'M SORRY.
JUROR: JUST THE TYPICAL CONSUMPTION OF MEDIA, "ECONOMIST," "BLOOMBERG," "BUSINESS WEEK," THE TYPICAL "60 MINUTES" SHOW, ALL OF THE CONTENT THAT WAS THERE THAT CAME OUT ABOUT THIS.
MR. DOWNEY: SO YOU FEEL THAT THE CONTENT THAT HAS BEEN IN THE PUBLIC ABOUT THIS YOU HAVE READ. IS THAT BECAUSE YOU HAVE A PARTICULAR INTEREST IN THE CASE?
JUROR: JUST FOLLOWING THE NEWS IN GENERAL AND CURRENT AFFAIRS.
MR. DOWNEY: AND I UNDERSTAND THAT YOUR WIFE IS A CARDIOLOGIST; IS THAT RIGHT?
JUROR: THAT'S RIGHT.
MR. DOWNEY: IS SHE INTERESTED IN THE SUBJECT MATTER OF THIS CASE?
JUROR: SHE'S A CARDIOLOGIST AT STANFORD SO SHE HAS EXPOSURE TO IT, BUT NOT PARTICULARLY RELEVANT TO THIS CASE.
MR. DOWNEY: AS I UNDERSTAND IT, YOU WERE FOLLOWING THE CASE AT LEAST AS IT WAS DEVELOPING IN THE MEDIA; IS THAT RIGHT?
JUROR: YES.
MR. DOWNEY: AND BASED ON YOUR VIEW OF THE MEDIA AS THE STORY WAS DEVELOPING, DID YOU HAVE A VIEW OR OPINION ABOUT MS. HOLMES?
JUROR: NOT IN PARTICULAR BECAUSE THERE'S ALWAYS TWO SIDES TO A STORY AND YOU ONLY HEAR SOMETHING IN A SLANTED CONTEXT DEPENDING ON WHO IS WRITING IT, SO YOU TEND TO WAIT IN THE CONTEXT OF WHAT YOU'RE READING. IT DIDN'T INFORM ME ONE WAY OR ANOTHER OVER A LONG PERIOD OF TIME.
MR. DOWNEY: WHEN YOU FILLED OUT THE QUESTIONNAIRE, YOU ANSWERED ONE OF THE QUESTIONS WHICH ASKED YOU WHETHER OR NOT YOU HAD A QUESTION IN YOUR MIND AS TO WHETHER YOU COULD BE FAIR, OBJECTIVE, AND IMPARTIAL. AND YOU RESPONDED THAT YOU HAD FOLLOWED THE CASE EXTENSIVELY BECAUSE OF YOUR CURIOSITY AND THAT THAT RAISED A QUESTION IN YOUR MIND. I THINK WHEN YOU WROTE THAT, THAT WAS AN ACCURATE ANSWER.
JUROR: UH-HUH.
MR. DOWNEY: CAN YOU TELL ME WHAT IT WAS THAT YOU HAD READ OR HEARD THAT MADE YOU QUESTION A LITTLE BIT YOUR ABILITY PERHAPS TO BE FAIR AND IMPARTIAL?
JUROR: IT'S THE -- IN THE CONTEXT OF SILICON VALLEY AND HOW FIRMS BUILD UP AND, LIKE, MASSIVE COMPANIES AND THEN THEY BURN OUT, IT'S JUST -- I'M JUST SKEPTICAL ABOUT THE PROCESS OF HOW IT HAPPENED AND WHY CERTAIN CASES COME TO COURT AND WHY A LOT OF OTHERS WITH A SIMILAR KIND OF SITUATION EXISTS IT DOESN'T QUITE HAPPEN THAT WAY.
MR. DOWNEY: LET ME SEE IF I UNDERSTAND WHAT YOU'RE SAYING. ARE YOU SKEPTICAL ABOUT THE COMPANIES WHO HAVE INITIALLY THAT KIND OF SUCCESS? IS THAT WHAT YOU'RE SAYING?
JUROR: YES.
MR. DOWNEY: AND DO YOU ASSOCIATE THAT VIEW SPECIFICALLY WITH THERANOS AS WELL?
JUROR: BASED ON THE READING AT THE TIME, IT SOUNDED THAT WAY.
MR. DOWNEY: OKAY. AND DO YOU THINK THAT THAT MIGHT BE A VIEW THAT YOU WOULD BE CARRYING INTO THIS CASE IF YOU BEGAN TO SIT AS A JUROR IN THE CASE?
JUROR: I HOPE NOT, AND I WOULD NOT WANT MYSELF TO BE THAT WAY, BUT, YES.
MR. DOWNEY: WELL, CAN YOU ASSURE US THAT THAT IS SOMETHING THAT YOU WOULD NOT CARRY?
JUROR: YES.
MR. DOWNEY: AND WOULD THIS BE A SITUATION WHERE YOU WOULD BE IN A POSITION NOT TO DISCUSS YOUR SERVICE ON THE JURY WITH YOUR WIFE?
JUROR: THAT'S CORRECT.
MR. DOWNEY: AT ANY TIME DURING YOUR READING OF BOOKS AND NEWSPAPER ARTICLES OR WATCHING DOCUMENTARIES, HAVE YOU EVER HAD ANY OPINION ABOUT MS. HOLMES OTHER THAN THE ONE YOU MENTIONED ABOUT BEING SKEPTICAL OF THE COMPANY?
JUROR: NOT IN PARTICULAR.
MR. DOWNEY: IS THERE ANY VIEW THAT YOU HAVE ABOUT ANY OTHER PERSON AT THERANOS AS A RESULT OF ALL OF THE LITERATURE THAT YOU'VE READ IN THE MEDIA AND SO FORTH?
JUROR: NO.
MR. DOWNEY: YOU NOTED IN THE QUESTIONNAIRE THAT YOU HAVE A COUPLE OF VACATIONS. IS THAT SOMETHING THAT YOU WOULD BE ABLE TO ADJUST? THEY WOULD OCCUR IN THE FIRST WEEK OF SEPTEMBER OR THE SECOND WEEK?
JUROR: SECOND WEEK.
MR. DOWNEY: IS THAT STILL SCHEDULED?
JUROR: I WOULD WAIT AND FIGURE OUT TODAY IF I NEED TO CANCEL OR NOT.
MR. DOWNEY: BUT YOU WOULD CANCEL BOTH OF THOSE VACATIONS?
JUROR: I WOULD HAVE TO.
MR. DOWNEY: WOULD HAVING TO DO ANY OF THAT IMPACT ANY ABILITY TO FOCUS HERE OR ANY ATTITUDE YOU WOULD HAVE TOWARDS THE CASE?
JUROR: MY WIFE HAS BEEN ON CALL AND SHE HAS NOT HAD A BREAK IN LITERALLY 16 MONTHS AT THIS POINT OR SO BECAUSE OF A LOT OF THE COVID CASES AND SO THIS WAS HER FIRST BREAK, AND SO WE WERE WORKING ON GETTING AWAY, AND NOW WE WOULD NOT BE ABLE TO.
MR. DOWNEY: SHE'S A PHYSICIAN IN THE HOSPITAL; IS THAT RIGHT?
JUROR: YES.
MR. DOWNEY: IN FACT, SHE'S ON CALL CERTAIN NIGHTS AND SO FORTH?
JUROR: YEAH, BECAUSE OF THE COVID PROCESS.
MR. DOWNEY: OKAY. WOULD YOU BE ASKING THE COURT TO BE EXCUSED ON THAT BASIS?
JUROR: IF IT'S POSSIBLE, YES.
MR. DOWNEY: OKAY. IS THERE AN OPINION ABOUT THERANOS OR THE CASE THAT YOU'VE EXPRESSED TO ANYONE OTHER THAN YOUR WIFE? HAVE YOU EVER HAD CONVERSATIONS WITH PEOPLE ABOUT THERANOS OR ABOUT MS. HOLMES?
JUROR: IN CASUAL CONVERSATIONS ABOUT INVESTMENTS AND RAPID GROWTH COMPANIES WITH FRIENDS, BUT NOTHING IN THE RECENT PAST.
MR. DOWNEY: AND WHAT OPINIONS HAVE YOU EXPRESSED IN THOSE CONVERSATIONS?
JUROR: JUST HOW DRAMATIC SOME COMPANIES GROW AND HOW BIG VALUATIONS GET, AND THEN HOW SUDDENLY THEY DON'T EXIST ANYMORE.
MR. DOWNEY: OKAY. AND YOU'VE EXPRESSED SOME VIEWS AS TO -- YOU'VE QUESTIONED WHY THAT HAPPENS; IS THAT RIGHT?
JUROR: YES.
MR. DOWNEY: AND SO YOU HAVE A NEGATIVE VIEW OF THOSE COMPANIES?
JUROR: JUST THE REALITY OF WHAT IT IS.
MR. DOWNEY: I'M SORRY, SIR?
JUROR: JUST THE REALITY OF HOW IT PLAYS OUT.
MR. DOWNEY: EXPLAIN THAT TO US.
JUROR: A LOT OF EFFORT GOES INTO MAKING A COMPANY SUCCESSFUL, AND WHEN THEY HAVE THE SUDDEN RISE AND IT -- IF IT'S SUBSTANTIATED IN TERMS OF WHAT IT HAPPENS. IF IT ISN'T, THAT'S GREAT, BUT IN A LOT OF CASES IF IT ISN'T, IT JUST HURTS A LOT OF PEOPLE IN THE PROCESS.
MR. DOWNEY: OKAY. THANK YOU, SIR. ANYTHING ELSE THAT YOU THINK WOULD AFFECT YOUR JURY SERVICE HERE?
JUROR: NO.
MR. DOWNEY: OKAY. THANK YOU, SIR. I'D LIKE TO TALK TO MS. GRAY FOR A MOMENT IN CONNECTION WITH THE CASE.
JUROR: YES.
MR. DOWNEY: I THINK YOU LISTENED TO ONE PODCAST IN CONNECTION WITH THE CASE?
JUROR: YEAH. WHENEVER WE CAR TRAVEL, MY HUSBAND JUST PICKS OUT A PODCAST BASED ON SOMETHING THAT IS POPULAR OUT THERE AND HE PICKS THE PLAY LIST, AND THAT'S WHY I COULDN'T TELL YOU WHICH ONE, BUT WE DID ALSO LISTEN TO THE ENTIRE PODCAST.
MR. DOWNEY: SO THAT WAS AN AUDIO PODCAST THAT YOU LISTENED TO?
JUROR: EXACTLY.
MR. DOWNEY: AND WITHOUT GETTING INTO THE DETAILS OF WHAT THE PODCAST WAS ABOUT, WOULD YOU SAY THE PODCAST HAD A POSITIVE OR NEGATIVE VIEW OF MS. HOLMES?
JUROR: NEGATIVE.
MR. DOWNEY: OKAY. AND WHAT WAS YOUR VIEW OF MS. HOLMES AT THE TIME THAT YOU FINISHED LISTENING TO THAT PODCAST.
JUROR: I DON'T KNOW IF IT WAS HER PERSONALLY OR THE COMPANY IN GENERAL, JUST, LIKE, IT WASN'T GOING TO MAKE IT. I ONLY -- I DON'T REMEMBER THE WHOLE PODCAST. I DEFINITELY REMEMBER A PERSON SPEAKING AT THE VERY BEGINNING ABOUT HAVING MET HER AND SHE DID NOT SPEAK WELL OF HER, AND I DO REMEMBER THAT.
MR. DOWNEY: AND WHO WAS THAT THAT SPOKE TO YOU ABOUT THAT?
JUROR: IT WAS ON THE PODCAST, A WOMAN WHO HAS INTERVIEWED AND WHO TALKED ABOUT MEETING MS. HOLMES.
MR. DOWNEY: AND THAT STUCK WITH YOU?
JUROR: UH-HUH. OH, YES.
MR. DOWNEY: AND SO AFTER YOU HAD LISTENED TO THE PODCAST AND THOUGHT ABOUT IT, DID YOU CARRY A NEGATIVE VIEW ABOUT THE COMPANY?
JUROR: IT WAS ENTERTAINMENT FOR CAR TRAVEL. IT NEVER REALLY CAME UP AGAIN UNTIL I CAME AND APPLIED FOR JURY DUTY. IT WASN'T ON MY MIND.
MR. DOWNEY: AND YOU WORK ALSO, YOU WORK IN THE LABOR AND DELIVERY?
JUROR: YEAH, I ALSO WORK AT THE HOSPITAL. I'M AN R.N.
MR. DOWNEY: OKAY. GOOD. SOME OF MY BEST FRIENDS WORK THERE. I'M JUST KIDDING.
JUROR: WELL, I HOPE YOU'RE NOT KIDDING.
MR. DOWNEY: HAS -- HAS THE THERANOS SITUATION BEEN A SUBJECT OF DISCUSSION THERE?
JUROR: NO. I WORK AT KAISER. WE DON'T WORK WITH ANYTHING NOT EVEN REMOTELY CLOSE TO THE AREA THOUGH.
MR. DOWNEY: THANK YOU.
JUROR: I HAVE VACATION ALSO THAT WAS LISTED ON THE THING.
MR. DOWNEY: OH, I'M SORRY.
JUROR: THAT'S OKAY. I DO WANT TO -- MY MOM SURVIVED COVID AND I AM HOPING TO GO VISIT MY MOTHER, AND MY SON GOT MARRIED LAST DECEMBER AND I HAVEN'T SEEN HIM SINCE THEN, AND THOSE ARE THE TWO TRIPS THAT I PLANNED.
MR. DOWNEY: AND THOSE WERE ALREADY PLANNED WITH I THINK PARTICULAR DATES, RIGHT?
JUROR: THEY ARE. AND I DIDN'T KNOW THEY WERE GOING TO GO THROUGH. I HAVE PLANS IN NOVEMBER. COVID HAS BEEN AWFUL, AND I FINALLY HAVE SOME VACATION PLANNED. BUT I UNDERSTAND IF I HAVE TO CANCEL. NOTHING IS URGENT, I GUESS.
MR. DOWNEY: I'D LIKE TO ASK A QUESTION NEXT OF MS. NGUYEN, JUROR 24.
JUROR: YES.
MR. DOWNEY: I NOTICED IN FILLING OUT THE QUESTIONNAIRE YOU CHECKED A PARTICULAR BOX. I THINK YOU MIGHT HAVE CHECKED IT IN ERROR, BUT I JUST WANT TO MAKE SURE THAT THAT IS THE CASE. THERE WAS A QUESTION THAT ASKED, IF THERE WAS ANYTHING THAT CREATED A QUESTION IN YOUR MIND AS TO WHETHER YOU COULD BE FAIR OR IMPARTIAL IN CONNECTION WITH THE CASE. YOU CHECKED "YES," WHICH WOULD INDICATE THAT THERE WAS SOME QUESTION. IS THERE SOMETHING IN YOUR HEAD THAT MAKES YOU THINK THAT IT MIGHT NOT BE AN APPROPRIATE CASE FOR YOU?
JUROR: I KNOW NOTHING ABOUT IT I GUESS. I THINK I WOULD BE FAIR. BUT, YOU KNOW, IN THERE I ALSO SAY THAT MY ENGLISH, MAYBE SOME WORDS I NOT UNDERSTAND. SO WHEN I GUESS I MAYBE MAKE A MISTAKE, BUT I'M SURE I BE FAIR FOR EVERYTHING.
MR. DOWNEY: OKAY. WHEN THE DISCUSSION HAS BEEN HAPPENING TODAY, HAVE YOU HAD ANY DIFFICULTY FOLLOWING IT, PARTICULARLY WITH THE MASKS?
JUROR: I UNDERSTAND. YES.
MR. DOWNEY: OKAY. SO YOU WERE ABLE TO UNDERSTAND?
JUROR: YES.
MR. DOWNEY: OKAY. WAS THERE ANYTHING IN FILLING OUT THE QUESTIONNAIRE THAT YOU WEREN'T ABLE TO UNDERSTAND?
JUROR: LIKE MAYBE A COUPLE OF WORDS I CAN'T UNDERSTAND. BUT I LOOK ON MY PHONE AND TRANSLATE TO GET TO THE MEANING OF THE WORD SOMETIMES.
MR. DOWNEY: OKAY. THANK YOU, MA'AM. OTHER THAN THAT, YOU THINK YOU COULD BE FAIR AND UNBIASSED?
JUROR: YES.
MR. DOWNEY: OKAY. THANK YOU, MA'AM. MR. RAO, I DON'T WANT TO TALK TO YOU AGAIN ABOUT THE MEDIA, BUT I DID WANT TO ASK YOU A QUESTION ABOUT THE QUESTION YOU ANSWERED ON THE QUESTIONNAIRE. AND YOU'RE NOT LOOKING AT IT, BUT I AM. IT WAS QUESTION 58, WHICH SAID THAT IN A CRIMINAL PROSECUTION, THE GOVERNMENT HAS THE BURDEN OF PROVING GUILT BEYOND A REASONABLE DOUBT. THE DEFENDANT IS PRESUMED INNOCENT AND HAS NO BURDEN TO PRESENT ANY EVIDENCE. DO YOU BELIEVE A DEFENDANT HAS AN OBLIGATION TO PROVE HIS INNOCENCE OR HER INNOCENCE OR PRODUCE ANY EVIDENCE IN ORDER TO BE FOUND NOT GUILTY, AND YOU CHECKED "YES" IN CONNECTION WITH THAT QUESTION, WHICH SEVERAL OTHER JURORS DID AS WELL. I'M JUST WONDERING WHAT YOU MEANT WHEN YOU CHECKED "YES" IN RESPONSE TO THAT QUESTION?
JUROR: WELL, I DIDN'T UNDERSTAND THE QUESTION COMPLETELY. BUT IN MY MIND, WHAT WAS GOING THROUGH MY MIND AT THE TIME IS THAT THE DEFENDANT SHOULD BE ABLE TO PRODUCE EVIDENCE OR SOME PROOF SAYING -- I MEAN, TO NEGATE THE ALLEGATIONS FROM THE OTHER PARTY. SO MAYBE THAT'S WHAT I WAS ANSWERING TO.
MR. DOWNEY: AND IS THAT SOMETHING THAT YOU FEEL?
JUROR: YES.
MR. DOWNEY: ALL RIGHT. THANK YOU, SIR.
JUDGE DAVILA: PARDON ME, MR. DOWNEY. MR. RAO, SO I UNDERSTAND WHAT YOU JUST SAID, DO YOU MEAN THAT YOU BELIEVE THE DEFENDANT SHOULD HAVE THE OPPORTUNITY TO PRESENT EVIDENCE? IS THAT WHAT YOU MEANT?
JUROR: YES, OPPORTUNITY. AND ALSO THEY SHOULD BE ABLE TO, EVEN WITHOUT ASKING, THEY SHOULD BE ABLE TO PRODUCE THE EVIDENCE OR INFORMATION FROM THE OTHER PARTY.
MR. DOWNEY: AND WHEN YOU SAY THEY SHOULD BE ABLE TO, YOU MEAN THEY SHOULD DO SO, TO REBUT THE CHARGES?
JUROR: SHOULD AS IN LIKE LEGALLY? NO. BUT I GUESS -- I MEAN, WHAT I'M SAYING IS IF SOMEBODY SAYS THAT YOU DID THIS, AND I SHOULD BE ABLE TO SAY, NO, I MEAN, THIS IS MY EVIDENCE THAT I CAN PROVE YOU WRONG.
MR. DOWNEY: AND THAT IN YOUR MIND WOULD SHOW THAT SOMEONE WAS INNOCENT, FOR EXAMPLE?
JUROR: I MEAN, THE DOCUMENTATION OR WHATEVER EVIDENCE IS PRESENTED, PROOF, YES.
JUDGE DAVILA: SO, MR. RAO -- PARDON ME, MR. DOWNEY. SO, MR. RAO, WHAT YOU'RE SAYING IS THAT YOU BELIEVE THAT THE DEFENSE SHOULD HAVE THE OPPORTUNITY, IF THEY WISH, TO PUT EVIDENCE FORWARD? IS THAT WHAT YOU'RE SAYING?
JUROR: YEAH. NOW THAT I'M READING THROUGH WHAT HE SAID EARLIER, THAT THE DEFENDANT IS INNOCENT UNTIL PROVEN GUILTY, SO MAYBE I WAS NOT CLEAR ON WHAT THAT QUESTION WAS.
JUDGE DAVILA: I SEE.
JUROR: IT WAS MORE LIKE SAYING THE DEFENDANT SHOULD HAVE THE CAPACITY OR THE ABILITY TO PROVIDE THE EVIDENCE --
JUDGE DAVILA: RIGHT. I SEE.
JUROR: -- REQUIRED.
JUDGE DAVILA: AS OPPOSED TO THE OBLIGATION TO PROVE THEIR INNOCENCE.
JUROR: YES, RIGHT. MAYBE I MISREAD THE QUESTION.
JUDGE DAVILA: I SEE. SO YOU REMEMBER ME TALKING ABOUT THE PRESUMPTION OF INNOCENCE?
JUROR: YES.
JUDGE DAVILA: AND DO YOU HAVE ANY PROBLEM WITH THAT CONCEPT?
JUROR: NO. THANK YOU FOR CLARIFYING THAT. I HAVE NO PROBLEM WITH THAT.
JUDGE DAVILA: THANK YOU FOR THAT, SIR. SORRY. THANK YOU, MR. DOWNEY.
MR. DOWNEY: MR. WITHERSPOON, I KNOW WE'VE SPOKEN TO YOU SEVERAL TIMES TODAY. I JUST WANTED TO ASK YOU ABOUT SOME OF THE HARDSHIP ISSUES RELATED TO YOUR QUESTIONNAIRE AND RESPONSE.
JUROR: SURE.
MR. DOWNEY: AS I UNDERSTAND IT, YOU MENTIONED A FEW MOMENTS AGO THAT YOU HAVE A SUBPOENA TO APPEAR AS A WITNESS.
JUROR: YES, SIR.
MR. DOWNEY: IS THAT AN APPEARANCE THAT YOU'LL BE ABLE TO MAKE THAT DOES NOT CONFLICT WITH OUR TRIAL SCHEDULE AS DESCRIBED BY JUDGE DAVILA?
JUROR: I'VE BEEN TOLD THAT I'VE BEEN GRANTED A VIDEO CONFERENCE SO WE WON'T HAVE TO ATTEND IN PERSON THANKFULLY.
MR. DOWNEY: OKAY. SO YOU'LL BE ABLE TO SERVE ON THE JURY IF YOU'RE CHOSEN?
JUROR: I BELIEVE SO.
MR. DOWNEY: YOU ALSO MENTION THAT YOUR WIFE AND YOUR SON HAVE SOME AUTOIMMUNE ISSUES.
JUROR: I DON'T THINK THEY HAVE ANYTHING THAT COULD BE REALLY PROVED OUT TO BE AUTOIMMUNE, BUT WE TRY TO BE REALLY CAREFUL. HE HAS SOME -- HE HAS SOME DEVELOPMENTAL ISSUES AND WE TRY TO BE PRETTY CAREFUL ABOUT THAT.
MR. DOWNEY: OKAY. HAVING HEARD WHAT OUR PROCEDURES WILL BE DURING THIS TRIAL, WOULD YOU BE COMFORTABLE IF YOU WERE CHOSEN AS A JUROR SERVING?
JUROR: I THINK SO, YES.
MR. DOWNEY: OKAY. OKAY. MS. HERNANDEZ, I WANTED TO ASK YOU BASICALLY THE SAME QUESTION THAT I ASKED MR. RAO. IN RESPONSE TO THE QUESTION ABOUT WHETHER OR NOT YOU BELIEVE THE DEFENDANT HAS AN OBLIGATION TO PRESENT EVIDENCE, YOU CHECKED "YES," AND THEN YOU SAID, ANYONE CAN SAY THAT THEY'RE INNOCENT, BUT THAT'S WHY EVIDENCE IS VITAL. DOES THAT -- TELL ME ABOUT THAT. WHAT DID YOU MEAN WHEN YOU WROTE THAT?
JUROR: I JUST SIMPLY MEANT THAT A DECISION CAN'T BE MADE WITHOUT EVIDENCE. SO WHOEVER IS PROVIDING IT, IT NEEDS TO BE VALID. OTHERWISE A DETERMINATION CAN'T BE MADE.
MR. DOWNEY: OKAY. AND WOULD YOU EXPECT THE DEFENDANT TO PRESENT EVIDENCE IN THIS CASE?
JUROR: NO.
MR. DOWNEY: OKAY. SO YOU'D BE ABLE TO JUDGE FAIRLY IN THIS SITUATION IF MS. HOLMES DID NOT PRESENT ANY EVIDENCE AS PART OF A DEFENSE?
JUROR: YES.
MR. DOWNEY: ALL RIGHT. BEAR WITH ME ONE MOMENT.
(PAUSE IN PROCEEDINGS.)
MR. DOWNEY: MR. WONG, JUROR NUMBER 46. YOU ANSWERED SOME QUESTIONS EARLIER FROM JUDGE DAVILA REGARDING THE MEDIA YOU'D BE EXPOSED TO. DO YOU REMEMBER THAT?
JUROR: YES.
MR. DOWNEY: AND IN CONNECTION WITH THAT YOU MENTIONED THAT YOU HAD HAD DISCUSSIONS WITH SOME OF YOUR FRIENDS WHO HAD AN INTEREST IN THE CASE. DO YOU RECALL THAT?
JUROR: NO. WHAT I SAID WAS PRIOR TO THIS WHOLE JURY THING, WHEN I WATCHED THE "60 MINUTES" SEGMENT, AND THEN MY FRIENDS WERE ALL INTO THAT, AND THEY SAW THE MOVIE, THE DOCUMENTARY, THEY READ THE BOOK AND WE TALKED ABOUT IT, BUT THAT WAS WAY --
MR. DOWNEY: EXCUSE ME. THAT WAS WHAT I MEANT TO SAY. I DIDN'T MEAN IN CONNECTION WITH THIS PROCEEDING. THEY WERE CURIOUS ABOUT THERANOS IS WHAT YOU WERE SAYING?
JUROR: WELL, NO. WE WERE TALKING MORE ON THE INVESTMENT SIDE. WE WERE SAYING THAT A LOT OF PEOPLE LOST MONEY, AND JUST FROM THAT, OH, YEAH, I HEARD ABOUT THAT. AND SO THEY KNOW A LOT MORE ABOUT THAT. BUT WE DID TALK ABOUT THAT. BUT THAT WAS QUITE A FEW YEARS AGO.
MR. DOWNEY: OKAY. DID THEY EXPRESS ANY OPINIONS ABOUT THE CASE THAT YOU RECALL?
JUROR: NO, WE DON'T KNOW MUCH ABOUT THE COMPANY.
MR. DOWNEY: OKAY. WHAT WAS YOUR OPINION WHEN YOU HAD THOSE DISCUSSIONS?
JUROR: WELL, I'M JUST GLAD I DIDN'T INVEST IN IT. THAT WAS -- I DIDN'T, BUT NONE OF US WERE ACTUALLY INVESTING IN THE COMPANY, SO --
MR. DOWNEY: FAIR ENOUGH. SO YOU DON'T HAVE ANY OPINION AS YOU SIT HERE TODAY REGARDING MS. HOLMES; IS THAT RIGHT?
JUROR: THAT'S CORRECT.
MR. DOWNEY: OKAY. LET ME ASK MR. BURGE ALSO WHO WE HAVE TALKED TO BEFORE. MR. BURGE, YOU HAD A DISCUSSION ALSO WITH JUDGE DAVILA ABOUT THE MEDIA. DO YOU REMEMBER THAT?
JUROR: YES, SIR.
MR. DOWNEY: AND YOU TOLD US IN RESPONSE TO THE QUESTIONNAIRE THAT YOU HAD COMMENTED ON MS. HOLMES ON SOCIAL MEDIA. DO YOU REMEMBER THAT?
JUROR: YES, SIR.
JUDGE DAVILA: AND DO YOU REMEMBER THE CONTENT OF THAT COMMENT?
JUROR: YES, I DO.
MR. DOWNEY: AND WOULD YOU AGREE WITH ME THAT THAT WAS A NEGATIVE COMMENT?
JUROR: YES.
MR. DOWNEY: WAS THAT AN OPINION THAT YOU HELD OF MS. HOLMES AT THE TIME THAT YOU WROTE THE COMMENT?
JUROR: YES.
MR. DOWNEY: OKAY. AND WAS THAT AN OPINION OF MS. HOLMES AT THE TIME THAT YOU FILLED OUT THE QUESTIONNAIRE?
JUROR: NO. SORRY. I FOLLOWED THE COMPANY BECAUSE I WAS INTERESTED IN IT BECAUSE IT CORRELATED WITH SOME OF THE CASES THAT I WAS WORKING ON, AND AT THE TIME THAT THE NEGATIVITY CAME OUT, I WAS REALLY DISAPPOINTED BECAUSE I THOUGHT THE COMPANY WAS SO COOL AND SO IT WAS MORE OF A DISAPPOINTMENT.
MR. DOWNEY: AND DO YOU REMEMBER WHAT FORUM YOU COMMENTED ON THE COMPANY IN?
JUROR: I THINK IT WAS FACEBOOK.
MR. DOWNEY: OKAY. AND WAS IT SOME GROUP THAT YOU'RE A MEMBER OF, OR WAS IT JUST --
JUROR: NO, JUST LIKE ALL OF MY FRIENDS.
MR. DOWNEY: OKAY. AND YOU FELT A CERTAIN SENSE OF DISAPPOINTMENT; IS THAT RIGHT?
JUROR: YES, SIR.
MR. DOWNEY: AND IS THAT A SENTIMENT THAT YOU STILL HAVE?
JUROR: NOT NECESSARILY, NO.
MR. DOWNEY: OKAY. WHAT HAS CHANGED ABOUT THAT?
JUROR: WELL, I DON'T -- COMING HERE HAS CHANGED, RIGHT? BECAUSE YOU HAVE TO KNOW ALL OF THE FACTS BEFORE YOU COULD MAKE A DECISION. SO, I MEAN, BASING SOMETHING OFF OF WHAT YOU READ IS NOT NECESSARILY THE TRUTH, RIGHT? AND IT WAS A GUT REACTION RESPONSE BECAUSE I WAS SO INVOLVED IN FOLLOWING THEM.
MR. DOWNEY: OKAY. BUT YOU THINK HERE YOU WOULD BE ABLE TO CONSIDER ALL OF THE EVIDENCE THAT IS PRESENTED AND NOT LET THAT OPINION AFFECT YOUR DELIBERATIONS?
JUROR: YES, SIR.
MR. DOWNEY: IS THERE -- COULD YOU TELL US A LITTLE BIT ABOUT YOUR DEALINGS WITH THE FDA?
JUROR: IT'S JUST THE ANDA CASES THAT I WORK ON, SO, LIKE, RUNNING UP THEIR PRODUCTIONS AND -- YOU KNOW, I DON'T REALLY DO ANYTHING WITH THE FDA. IT'S THE ATTORNEYS WHO ARE DOING THE LETTERS. BUT I'M KEEPING TRACK OF WHAT IS GOING IN AND OUT AND PRODUCING TO THE OTHER SIDE AND THE FDA THE CORRESPONDENCE FOR THE ANDA APPLICATIONS.
MR. DOWNEY: AND IS THE NATURE OF THAT THAT THE CLIENTS OF THE LAW FIRM ARE FILING NEW DRUG APPLICATIONS WITH THE FDA?
JUROR: CORRECT.
MR. DOWNEY: AND IS IT RIGHT THAT YOUR LAW FIRM IS TRYING TO ASSIST THOSE CLIENTS IN GETTING THAT NEW DRUG APPLICATION APPROVED?
JUROR: YES.
MR. DOWNEY: AND IS IT THE CASE THAT THERE ARE ANY OF THOSE NEW DRUG APPLICATIONS THAT YOU'VE WORKED ON IN THE LAST SIX MONTHS?
JUROR: I'VE HAD A FEW.
MR. DOWNEY: YOU DON'T HAVE TO IDENTIFY WHAT THEY ARE, BUT ARE THERE CURRENTLY ANY APPLICATIONS THAT YOU'VE BEEN INVOLVED WITH THAT ARE PENDING WITH THE FDA CURRENTLY?
JUROR: YES.
MR. DOWNEY: HOW MANY?
JUROR: HMM. AT LEAST FIVE OR SIX.
MR. DOWNEY: AND DO YOU EXPECT THAT YOU'LL DO FURTHER WORK IN CONNECTION WITH THOSE APPLICATIONS?
JUROR: YES, SIR.
MR. DOWNEY: OKAY. AM I RIGHT THAT YOU'VE BEEN ABLE TO ADJUST ANY CONFLICTS WITH THIS TRIAL THAT YOU WOULD HAVE AS WELL?
JUROR: I HAVE NOT. I WAS JUST KIND OF WAITING AND SEEING.
MR. DOWNEY: WELL, TELL US ABOUT THAT. I NOTICED IN YOUR QUESTIONNAIRE THAT THIS MIGHT PRESENT SOME SCHEDULING HARDSHIPS.
JUROR: WELL, WITH THE PANDEMIC, I'VE BEEN LOCKED IN THE HOUSE WITH THE FAMILY AND WE HAVE NOT GONE ANYWHERE FOR A YEAR AND A HALF. THE KIDS ARE BACK IN SCHOOL, AND THE FALL BREAK IS THE FIRST WEEK OF OCTOBER AND SO WE'VE PLANNED A LITTLE GETAWAY. I'VE BEEN TAKING CARE OF MY ELDERLY PARENTS DURING THIS WHOLE PROCESS WITH MY 12-YEAR OLD. MY MOTHER HAS ALZHEIMER'S AND MY DAD DOESN'T GET ALONG SO WELL. SHE SNUCK OUT OF THE HOUSE BEFORE THE PANDEMIC STARTED, AND WE HAD TO GO SEARCHING FOR HER, AND THAT'S WHEN ROBERT AND I MOVED IN WITH THEM. AND WHEN HE WAS IN SCHOOL AND DOING DISTANCE LEARNING IT WAS HELPFUL THAT WE COULD KEEP AN EYE ON HER. HE'S BACK, YOU KNOW, BACK IN SESSION AS OF A WEEK AND A HALF AGO. SO THINGS ARE KIND OF IN THE AIR WITH EVERYTHING RIGHT NOW AS FAR AS SCHEDULING.
MR. DOWNEY: OKAY. SO ARE YOU ONE OF HER PRINCIPAL CARE TAKERS?
JUROR: I AM.
MR. DOWNEY: ALL RIGHT, SIR. THANK YOU.
JUROR: UH-HUH.
MR. DOWNEY: I SHOULD ASK, I ASKED MS. NGUYEN, IS THERE ANYONE ELSE HERE WHO HAS HAD ANY DIFFICULTY EITHER UNDERSTANDING ME OR MR. SCHENK, OR ANYTHING THAT HAS HAPPENED IN COURT HERE TODAY BECAUSE YOU CAN'T HEAR OR FOR OTHER REASONS? YES, MA'AM.
JUROR: I DON'T --
JUDGE DAVILA: COULD YOU COME FORWARD, PLEASE?
JUROR: I DON'T HAVE --
JUDGE DAVILA: COULD YOU COME FORWARD, PLEASE?
JUROR: HI. I DON'T HAVE HEARING PROBLEMS, BUT ENGLISH IS MY SECOND LANGUAGE.
JUDGE DAVILA: COULD YOU TELL US YOUR JUROR NUMBER, PLEASE.
JUROR: 81. SO I'M AFRAID IF A DECISION DEPENDS ON ME, I HAVEN'T BEEN ABLE TO FOLLOW, YOU KNOW, DURING THE PROCESS ALL OF THE TESTIMONY AND EVERYTHING, SPECIFIC WORDS. DO YOU KNOW WHAT I MEAN? I'M ABLE TO HAVE A CONVERSATION, BUT MORE SPECIFIC WORDS FOR ME MAKE ME FEEL LOST IN TRANSLATION.
MR. DOWNEY: OKAY, MA'AM. THAT'S BEEN TRUE OF EVEN TODAY'S PROCEEDINGS?
JUROR: NO, NOT SO FAR. IT'S HARD FOR SOMETIMES WITH ACCENTS AND STUFF. BUT REGULAR DAY LIKE TODAY? NO. SO I'M AFRAID OF THAT.
MR. DOWNEY: YOU'VE BEEN ABLE TO FOLLOW WHAT WE HAVE DONE TODAY?
JUROR: I'M SORRY?
MR. DOWNEY: YOU'VE BEEN ABLE TO FOLLOW WHAT WE HAVE DONE TODAY?
JUROR: YES.
MR. DOWNEY: OKAY. THANK YOU, MA'AM. IS THERE ANYONE ELSE WHO HAS ANY CHALLENGES EITHER IN TERMS OF HEARING OR LANGUAGE THAT HAVE MADE IT DIFFICULT TO FOLLOW THE PROCEEDING? OKAY. THANK YOU.
JUDGE DAVILA: THERE'S A HAND. IS THAT MR. GUERRERO OR MR. NGUYEN? EXCUSE ME. MR. GUERRERO?
JUROR: YES.
JUDGE DAVILA: YES.
JUROR: MY JUROR NUMBER IS 55. I ALSO HAVE SOME TROUBLE UNDERSTANDING ENGLISH, AND THAT'S IT. I UNDERSTAND, BUT TO SPEAK IT'S HARDER FOR ME.
JUDGE DAVILA: SPEAKING IS MORE DIFFICULT THAN YOUR UNDERSTANDING?
JUROR: YES.
JUDGE DAVILA: I SEE. AND YOU'VE BEEN ABLE TO UNDERSTAND --
JUROR: YES.
JUDGE DAVILA: -- THE PROCEEDING TODAY?
JUROR: YES.
JUDGE DAVILA: OKAY. THANK YOU, SIR.
MR. DOWNEY: YOUR HONOR, MAY I JUST ASK, YOUR HONOR, ONE MORE THING.
JUDGE DAVILA: OH, YES.
MR. DOWNEY: WOULD YOU BE COMFORTABLE TO PARTICIPATE? WOULD YOU BE ABLE TO TALK TO OTHER JURORS WHILE THE CASE IS BEING DECIDED?
JUROR: YES.
MR. DOWNEY: AND YOU'D BE COMFORTABLE DOING THAT?
JUROR: YEAH, I THINK SO.
MR. DOWNEY: THANK YOU. MR. RISHI, I HAVE SOME QUESTIONS FOR YOU. I HAVE PROBABLY ENOUGH QUESTIONS THAT YOU MIGHT WANT TO GET THE MICROPHONE.
(LAUGHTER.)
MR. DOWNEY: THAT DOESN'T MEAN THEY'RE BAD QUESTIONS. IT JUST MEANS -- I WAS ALSO INTERESTED IN A RESPONSE THAT YOU GAVE IN THE QUESTIONNAIRE. FIRST OF ALL, YOU HAVE READ A LOT OF MEDIA REPORTS ABOUT MS. HOLMES; CORRECT?
JUROR: CORRECT.
MR. DOWNEY: AND YOU'VE READ THEM OVER A LONG PERIOD OF TIME; IS THAT RIGHT?
JUROR: YES. I THINK I STARTED FOLLOWING IT WHEN IT STARTED, AND THEN A FEW YEARS BACK I STOPPED. BUT --
MR. DOWNEY: OKAY. SO YOU'VE READ A NUMBER OF ARTICLES OVER A PERIOD OF YEARS; IS THAT CORRECT?
JUROR: THAT'S CORRECT.
MR. DOWNEY: AND YOU'VE READ THE BOOK "BAD BLOOD"?
JUROR: UH-HUH.
MR. DOWNEY: AND YOU ALSO WATCHED A COUPLE OF DOCUMENTARIES ABOUT THERANOS; IS THAT RIGHT?
JUROR: CORRECT, I THINK "60 MINUTES."
MR. DOWNEY: OKAY. AND WHEN YOU CAME IN TO FILL YOUR QUESTIONNAIRE TEN DAYS AGO OR SO, YOU SAID -- YOU ANSWERED THE QUESTION DO YOU, TO YOUR KNOWLEDGE, OR DO YOUR FRIENDS AND FAMILY MEMBERS HAVE STRONG OPINIONS ABOUT EITHER MS. HOLMES OR MR. BALWANI THAT WOULD INFLUENCE YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? AND YOU CHECKED "YES," INDICATING THAT YOU MIGHT HAVE SOME STRONG OPINIONS OR FEELINGS, OR THAT PEOPLE YOU LIVE WITH OR WERE FRIENDS WITH MIGHT HAVE STRONG OPINIONS AND FEELINGS. TELL US ABOUT THAT.
JUROR: I THINK, AS I WAS POINTING OUT WHEN WE STARTED READING THE NEWS -- BY "WE" I MEAN ME AND MY WIFE -- AND THIS WAS FOR "THE WALL STREET JOURNAL." SHE WAS IN THE, OR STILL IS IN THE MEDICAL I.T. FIELD, AND SO THINGS LIKE BLOOD TESTING, ET CETERA, WERE PART OF HER PURVIEW. AND I'VE HAD BLOOD TESTS, ET CETERA. AND SO FOR US, THE GUT REACTION WHEN WE WERE TALKING ABOUT IT WAS ESSENTIALLY THAT THERE'S A HIGH BAR THAT YOU NEED TO HAVE AS A COMPANY WHEN YOU'RE GETTING INTO SOMETHING LIKE MEDICAL TESTING BECAUSE THE IMPLICATIONS CAN BE SO HARSH POTENTIALLY ON PEOPLE. SO THAT'S SOMETHING THAT I'M CONSCIOUS OF AND THAT'S THE REASON I CHECKED IT.
MR. DOWNEY: AND THAT'S A VIEW THAT YOU STILL HAVE, I ASSUME?
JUROR: CORRECT.
MR. DOWNEY: AND DOES YOUR WIFE HAVE A SIMILAR VIEW?
JUROR: YEAH, I THINK SHE DOES.
MR. DOWNEY: AND AM I RIGHT SHE WORKS AT WAL-MART HEALTH?
JUROR: SHE DOES CURRENTLY WORK THERE.
MR. DOWNEY: AND DOES SHE HAVE ANY KNOWLEDGE THROUGH HER WORK, TO YOUR KNOWLEDGE, DOES SHE KNOW ANYTHING ABOUT THERANOS IN CONNECTION WITH HER PROFESSIONAL DEALINGS?
JUROR: I DON'T THINK SO.
MR. DOWNEY: OKAY. SO AM I RIGHT THAT THE ANSWER THAT YOU GAVE IN RESPONSE TO THAT QUESTION IS ACCURATE, YOU DO HAVE SOME CONCERN THAT YOU MAY NOT BE FAIR, OBJECTIVE, AND IMPARTIAL BASED ON THOSE VIEWS?
JUROR: I THINK IT'S -- BACK TO THE POINT, THE QUESTION WAS IF I HAD SOME VIEWS, AND I THINK THAT'S WHAT I AT LEAST INTENDED TO ANSWER BY PUTTING THE CHECK BOX. BUT LIKE I POINTED OUT EARLIER, I'M ALSO AWARE OF MY BIASES, AND IF THE QUESTION IS CAN I RECOGNIZE THEM AND LOOK AT OTHER EVIDENCE I'M SUPPOSED TO LOOK AT, I BELIEVE I AM CAPABLE OF THAT. I'M NOT SURE IF I ANSWERED YOUR QUESTION.
MR. DOWNEY: WELL, YOU USED A GREAT PHRASE ACTUALLY. YOU SAID THAT YOU COULD ENGAGE IN I THINK INFORMATION ATTRIBUTION IS THE PHRASE YOU GAVE -- THAT YOU USED.
JUROR: THAT'S RIGHT.
MR. DOWNEY: YOU HAD THAT SKILL WHEN YOU INDICATED YOU WERE WORRIED YOU MIGHT HAVE SOME BIASES AND OPINIONS, DIDN'T YOU?
JUROR: CORRECT.
MR. DOWNEY: OKAY. AND WHETHER YOU CAN PUT THEM TO THE SIDE OR NOT, DO YOU THINK YOU WOULD CARRY SOME BIASES AND OPINIONS ABOUT THE SITUATION INTO THE CASE AS YOU WENT TO DELIBERATE IN THE CASE OR TO HEAR THE CASE AS A JUROR?
JUROR: WILL I HAVE SOME BIASES GOING IN? ABSOLUTELY.
MR. DOWNEY: ONE OTHER ISSUE I WANTED TO ASK YOU ABOUT. WITH RESPECT TO THE DISPUTE THAT YOU HAD RELATED TO YOUR DAUGHTER'S TREATMENT --
JUROR: SAY THAT AGAIN.
MR. DOWNEY: YES, YES. WITH RESPECT TO THE DISPUTE THAT YOU HAD RELATED TO YOUR DAUGHTER'S TREATMENT, I DON'T WANT TO INFRINGE IN ANY WAY ON YOUR PRIVACY, BUT COULD YOU GIVE US AT A HIGH LEVEL A SENSE OF WHAT THAT WAS ABOUT?
JUROR: I THINK -- I MEAN, NOTHING REALLY TO HIDE. I THINK OUR DAUGHTER, SHE'S MIDDLE SCHOOL AND SHE WEARS HEARING AIDS AND I THINK IT'S MEDICALLY NECESSARY. BUT THE INSURANCE NEVER COVERED THAT, OR WE HAD TO DISPUTE IT, AND I THINK THAT WAS REALLY -- YOU KNOW, IT WAS AN EMOTIONAL PROCESS FOR THE FAMILY AND WHAT WE FELT WAS RIGHT AND DIDN'T QUITE GET THE REIMBURSEMENT UNTIL IT WAS A LONG-TERM PROCESS, AND SO THAT'S WHAT I WAS ALLUDING TO.
MR. DOWNEY: IF YOU CAN SAY, WHO WERE THE INSURERS WHO WERE INVOLVED IN THAT DISPUTE?
JUROR: I BELIEVE IT WAS CIGNA AT THAT POINT IN TIME.
MR. DOWNEY: IS THERE ANYTHING THAT YOU THINK WOULD INFLUENCE YOU?
JUROR: I DON'T THINK SO, OTHER THAN MY TAKE-AWAY IS THAT THE MEDICAL INDUSTRY IS A COMPLEX INDUSTRY IS ALL I CAN THINK OF.
MR. DOWNEY: FAIR ENOUGH. THANK YOU, SIR.
(PAUSE IN PROCEEDINGS.)
MR. DOWNEY: MS. RAMER, I JUST HAD ONE QUESTION FOR YOU. YOU SAID BEFORE THAT YOU HAD SOME KNOWLEDGE OF ONE OF THE POTENTIAL WITNESSES IN THE CASE AND YOU TALKED WITH JUDGE DAVILA ABOUT THAT. DO YOU REMEMBER THAT?
JUROR: YES.
MR. DOWNEY: CAN YOU JUST GIVE US A SENSE ABOUT WHETHER YOU HAVE AN OPINION ABOUT THAT WITNESS?
JUROR: NO, I DON'T. I WAS JUST DISCLOSING THAT IT WAS SOMEBODY THAT I KNOW, OR KNOW OF.
MR. DOWNEY: AND ANYTHING PARTICULARLY NEGATIVE OR POSITIVE ABOUT THAT PERSON?
JUROR: NO. NO. I MEAN, WE HAD CORDIAL COLLABORATIONS WITH HIM AND HIS LAB FOR SEVERAL YEARS. IT ENDED, BUT IT DIDN'T END BADLY FOR ANY PARTICULAR REASON OTHER THAN WE MOVED TO A DIFFERENT SORT OF AREA OF RESEARCH. EVERYTHING WAS LEFT ON FINE TERMS.
MR. DOWNEY: IS THERE ANYTHING THAT YOU WOULD HAVE IN TERMS OF -- DOES ANY VIEW THAT YOU WOULD HAVE COME FROM THAT EXPERIENCE, OR DO YOU HAVE ANY REASON TO HAVE ANY OTHER VIEWS ABOUT THAT WITNESS?
JUROR: NO.
MR. DOWNEY: THANK YOU.
(PAUSE IN PROCEEDINGS.)
MR. DOWNEY: YOUR HONOR, I HAVE A QUESTION ON ONE WITNESS, BUT I THINK THEY MAY BE A FAILURE TO APPEAR. CAN I JUST?
JUDGE DAVILA: OH, YEAH, PLEASE.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: FOLKS, IF YOU WOULD LIKE TO STAND UP AND STRETCH YOUR LEGS, GO AHEAD AND DO THAT RIGHT NOW. BUT FEEL FREE TO STAND AND STRETCH.
(STRETCH BREAK.)
MR. DOWNEY: I WANTED TO ASK MR. LEE JUST SOME QUESTIONS ABOUT -- AND IF THEY'RE PRIVATE QUESTIONS, YOU CAN CERTAINLY INDICATE THAT TO US. BUT I UNDERSTAND THAT YOU MAY HAVE SOME HEALTH ISSUES THAT WOULD AT THE VERY LEAST MAKE YOU SUSCEPTIBLE TO THE CONTRACTION OF COVID-19. I WONDER IF YOU COULD TELL US ABOUT THAT AND IF THERE'S ANYTHING ABOUT THAT THAT WOULD AFFECT YOUR JURY SERVICE.
JUROR: IT'S NOT VERY SERIOUS, BUT I'M A LITTLE BIT IMMUNOCOMPROMISED, SO I'M JUST MORE SUSCEPTIBLE. IF I GET COVID, IT WILL HURT ME MORE.
MR. DOWNEY: ARE THE PROCEDURES THAT HAVE BEEN DESCRIBED TODAY BY JUDGE DAVILA, DOES THAT MAKE YOU COMFORTABLE IN TERMS OF SERVING AS A JUROR IF YOU'RE SELECTED?
JUROR: I'M SORRY, COULD YOU SAY THAT AGAIN?
MR. DOWNEY: YES. WOULD YOU BE COMFORTABLE IF YOU'RE SERVING AS A JUROR, IF YOU'RE SELECTED, GIVEN WHAT JUDGE DAVILA SAID THIS MORNING ABOUT THE PROCEDURES IN THE COURTROOM?
JUROR: YEAH, WITH ALL OF THE SAFETY PRECAUTIONS I'M COMFORTABLE.
MR. DOWNEY: SO YOU WOULD BE ABLE TO FOCUS DURING THE TRIAL ABOUT WHAT WAS GOING ON AND NOT BE DISTRACTED?
JUROR: FOR THE MOST PART.
MR. DOWNEY: VERY GOOD. THANK YOU, SIR. YOU ALSO SAID IN RESPONSE TO YOUR QUESTIONNAIRE THAT YOU HAD A BIAS AGAINST CERTAIN POSITIONS IN BUSINESS, AND THAT INCLUDES C-LEVEL PEOPLE LIKE CEO'S. DO YOU REMEMBER WRITING THAT?
JUROR: UH-HUH.
MR. DOWNEY: TELL US ABOUT THAT. WHERE DOES THAT VIEW COME FROM, AND TELL US WHY YOU HAVE THAT VIEW.
JUROR: PLEASE STOP ME IF I SAY SOMETHING I AM NOT SUPPOSED TO. I WAS FIRED FROM MY LAST TWO JOBS BOTH BECAUSE OF OUR MANAGEMENT USING MONEY WHERE THEY'RE NOT SUPPOSED TO. I WAS SUPPOSED TO KEEP THE JOB, BUT BECAUSE OF THEIR ACTIONS I WAS -- THEY TOLD ME THAT THEY COULDN'T KEEP ME ON DESPITE OUR WHOLE TEAM WANTING ME TO CONTINUE AT THE JOB BECAUSE OF LACK OF MONEY. SO IT GAVE ME A HUGE DISTRUST WITH SOMEONE WHO IS NOT TRANSPARENT WITH USING COMPANY MONEY.
MR. DOWNEY: OKAY. YOU SAID IN YOUR QUESTIONNAIRE THAT THAT'S LEFT YOU, I THINK, WITH SOME INCLINATION TO THINK THAT PEOPLE IN HIGH LEVEL MANAGEMENT MIGHT BE MORE LIKELY TO BE GUILTY THAN OTHER INDIVIDUALS. IS THAT RIGHT?
JUROR: AFTER COMING HERE AND LISTENING TO MORE ABOUT BIASES, I AM MORE OPEN TO KIND OF PUT THOSE ISSUES ASIDE. BUT THE FEELING OF UNTRUST, BECAUSE IT WAS LOSING TWO JOBS THAT I LOVED, IT WAS A VERY HARD AND TRAUMATIC THING TO ME. SO WHILE I WANT TO SAY THAT I CAN PUT THOSE BIASES ASIDE, THAT FEELING OF UNTRUST IS STILL THERE.
MR. DOWNEY: OKAY. AND CAN YOU SAY A LITTLE BIT MORE WITH RESPECT TO THAT FEELING, WHAT IT MAKES YOU THINK ABOUT SENIOR LEVEL EXECUTIVES IN A COMPANY?
JUROR: AS LONG AS THEY'RE NOT TRANSPARENT ABOUT THE MONEY THAT THEY'RE USING IT FOR, IT MAKES ME SORT OF BELIEVE THAT THEY'RE USING IT FOR PERSONAL GAIN AND NOT THE COMPANY'S GROWTH. ME BEING FIRED KIND OF MAKES ME FEEL, EVEN THOUGH I KNOW IT'S NOT, I FEEL THE FEELING OF BETRAYAL THAT THEY DIRECTLY DID SOMETHING TO HARM ME.
MR. DOWNEY: WELL, I APPRECIATE YOU BEING SO OPEN ABOUT THAT WITH US, AND I'M SORRY I HAVE TO ASK YOU ABOUT IT, BUT WE'RE DOING OUR BEST TO JUST MAKE SURE THAT THE JURORS ARE APPROPRIATE FOR THE CASE. MY LAST SET OF QUESTIONS IS FOR JUROR NUMBER 95, MR. KRAY. I ALSO WANTED TO JUST ASK YOU ABOUT THE COVID SITUATION. I KNOW YOU HAVE SOME CONCERNS ABOUT, WITHOUT GETTING INTO THE DETAILS, YOU LIVE WITH SOME PEOPLE WHO ARE UNVACCINATED. IS THAT A CONCERN THAT YOU STILL HAVE?
JUROR: ACTUALLY MY DAUGHTER HAS NOW BEEN VACCINATED, SO IT'S NOT A CONCERN.
MR. DOWNEY: SO NOTHING ABOUT THE HEALTH ISSUES IN THIS CASE?
JUROR: NO. NO.
MR. DOWNEY: YOU ALSO MENTIONED IN CONNECTION WITH THE QUESTIONNAIRE THAT YOU HAD WATCHED A COUPLE OF DOCUMENTARIES THAT RELATE TO THERANOS.
JUROR: WATCHED OR READ. I DON'T REALLY REMEMBER.
MR. DOWNEY: YOU DON'T REALLY REMEMBER ANYTHING ABOUT THE DOCUMENTARIES?
JUROR: I DON'T REMEMBER WHETHER I WATCHED OR READ, BUT I'VE CONSUMED SOME NEWS.
MR. DOWNEY: OH, I'M SORRY. YEAH. I UNDERSTAND. AND DID YOU HAVE ANY REACTION TO THAT IN TERMS OF BEING VIEWED AS NEGATIVE OR POSITIVE?
JUROR: I THINK I VIEWED IT AS NEGATIVE.
MR. DOWNEY: OKAY. AND THAT INCLUDED WITH RESPECT TO MS. HOLMES?
JUROR: YES.
MR. DOWNEY: OKAY. HAVE YOU DISCUSSED THAT WITH ANYBODY?
JUROR: NOT THAT I CAN REMEMBER.
MR. DOWNEY: OKAY. AND WAS THAT STILL A VIEW THAT YOU HELD WHEN YOU FILLED OUT THE QUESTIONNAIRE?
JUROR: I THINK THAT'S HOW I'M COMING IN RIGHT NOW, YES.
MR. DOWNEY: OKAY.
JUROR: IT DOESN'T MEAN I WON'T CHANGE MY MIND. BUT, YES, THAT'S THE PERCEPTION THAT I HAVE, YES.
MR. DOWNEY: OKAY. AND INDEED I NOTICED, AGAIN, BEING VERY I THINK OPEN AND HONEST, WHICH I CERTAINLY APPRECIATE, YOU, IN RESPONSE TO THE GENERAL QUESTION ABOUT WHETHER WHEN A PERSON IS CHARGED WITH A CRIME THEY'RE PROBABLY GUILTY, YOU CHECKED THAT BOX THAT, YES, PEOPLE WHO ARE CHARGED WITH A CRIME ARE PROBABLY GUILTY.
JUROR: THAT'S CORRECT.
MR. DOWNEY: AND THAT'S A VIEW THAT YOU HAVE BASED ON YOUR LIFE EXPERIENCE?
JUROR: YEAH. CALL IT A STATISTICAL VIEW.
MR. DOWNEY: ALL RIGHT. THANK YOU, SIR.
JUROR: SURE.
MR. DOWNEY: MR. KRAY IS OUR LAST JUROR TODAY.
(DISCUSSION AMONGST COUNSEL OFF THE RECORD.)
MR. DOWNEY: I JUST WANT TO ASK TWO QUESTIONS OF THE ENTIRE PANEL. IS THERE ANYTHING THAT ANYONE FEELS LIKE THEY SAID IN THE QUESTIONNAIRE -- WE'LL START WITH THE QUESTIONNAIRE -- THAT THEY SAID IN THE QUESTIONNAIRE THAT IS INACCURATE OR THEY WOULD LIKE TO CHANGE? THAT'S JUROR NUMBER 95.
JUDGE DAVILA: MR. KRAY.
JUROR: I THINK THERE WAS SOMETHING ABOUT RELIGION AND I ANSWERED NO FROM THAT QUESTION. THERE IS NOTHING THAT PREVENTS ME FROM BEING A JUROR, BUT I DO HAVE HOLIDAYS COMING UP, WHICH SEVERAL OVERLAP WITH SCHEDULED COURT DAYS WHICH I WILL NOT BE ABLE TO BE PRESENT.
MR. DOWNEY: THANK YOU, SIR.
JUDGE DAVILA: WHAT ARE THOSE? I'M SORRY, MR. KRAY. WHAT ARE THOSE? SPEAK INTO THE MICROPHONE. GO AHEAD.
JUROR: CAN YOU HEAR ME?
JUDGE DAVILA: YES.
JUROR: WHAT DID YOU WANT ME TO REPEAT?
JUDGE DAVILA: WHAT YOU JUST SAID ABOUT --
JUROR: THERE ARE SEVERAL RELIGIOUS HOLIDAYS THAT ARE COMING UP IN SEPTEMBER. FIVE OF THOSE DAYS OVERLAP WITH THE SCHEDULED TRIAL DATES, AND I WOULD NOT BE ABLE TO BE PRESENT.
JUDGE DAVILA: I SEE. CAN YOU PROVIDE US THOSE DATES? DO YOU KNOW THEM?
JUROR: THE 8TH, 21ST, 22ND, 28TH, AND 29TH. THOSE ARE THE ONES THAT OVERLAP.
JUDGE DAVILA: WITH THE TRIAL?
JUROR: YES.
JUDGE DAVILA: I SEE. THANK YOU, SIR. THANK YOU.
MR. DOWNEY: IS THERE ANYONE ELSE WHO WOULD CHANGE OR MODIFY ANYTHING THAT THEY'VE SAID IN RESPONSE TO THE QUESTIONS IN THE QUESTIONNAIRE? IS THERE ANYTHING, ANY ANSWERS THAT ANYONE HAS GIVEN TODAY TO ANY OF US, MR. SCHENK AND MYSELF, JUDGE DAVILA, THAT THEY WOULD LIKE TO COMMENT FURTHER ON OR MODIFY IN ANY WAY? YES, MA'AM, MS. GROGAN.
JUROR: YES, EARLIER -- I DON'T NEED THE MIKE. THIS IS CLOSE. YOU HAD ASKED --
JUDGE DAVILA: CAN WE GET THE MIKE?
JUROR: YOU HAD ASKED WHETHER OR NOT I HAD AN OPINION ABOUT READING "BAD BLOOD" AND I BELIEVE I SAID NO. AND AFTER THINKING ABOUT THAT SOME MORE, I DON'T KNOW THAT THAT'S ENTIRELY ACCURATE. I DO BELIEVE THAT I CAME OUT OF READING THAT HAVING OPINIONS AND SOME DISAPPOINTMENT AND SOME NEGATIVITY, SO I DON'T THINK IT'S FAIR FOR ME TO HAVE SAID NO TO THAT QUESTION.
MR. DOWNEY: I APPRECIATE THAT. THANK YOU. ANYONE ELSE WANT TO CHANGE OR MODIFY ANYTHING OR PROVIDE ANY FURTHER INFORMATION IN CONNECTION WITH THE QUESTIONS THAT HAVE BEEN ASKED TODAY? THANK YOU VERY MUCH FOR YOUR PATIENCE. THANK YOU FOR YOUR TIME. YOUR HONOR, I HAVE NOTHING FURTHER FOR THE PANEL.
JUDGE DAVILA: THANK YOU. WE'RE GOING TO TAKE A BREAK IN JUST A MOMENT, BUT I DO WANT TO FOLLOW UP WITH MR. RISHI. MR. RISHI, THANK YOU. YOUR LAST CONVERSATION WITH MR. DOWNEY WHERE I THINK HE USED THE PHRASE "INFORMATION ATTRIBUTION." I THINK THIS WAS THE CONCEPT THAT YOU'VE READ A LOT ABOUT THERANOS, ABOUT THIS CASE OVER THE YEARS. I THINK YOU TOLD US -- I THINK YOU SAID THAT YOU WILL HAVE A BIAS GOING IN ABSOLUTELY I THINK IS WHAT YOU SAID. BUT CAN YOU INFORM US WHETHER OR NOT -- THERE WAS ANOTHER CONCEPT ABOUT, WILL YOU BE ABLE TO PUT THAT BIAS ASIDE TO SIT AS A FAIR AND IMPARTIAL JUROR IN THIS CASE? IS THAT SOMETHING THAT YOU THINK YOU CAN DO?
JUROR: THAT'S RIGHT. AND THAT'S WHAT I SIGNALLED BEFORE ALSO IS THAT -- AND I WAS USING THE WORD "INFORMATION ATTRIBUTION" AS A VEHICLE TO TRY TO GET TO THAT POINT OF BEING ABLE TO SAY WHILE I DO BELIEVE I HAVE PRIOR KNOWLEDGE, AGAIN, I ALSO APPRECIATE YOUR COMMENTS ABOUT KEEPING THIS AS A UNIVERSE OF INFORMATION WHEN MAKING THE DECISION. SO THE WAY TO GET THERE WAS TO BE ABLE TO RECOGNIZE WHAT IT WAS THAT I KNOW BEFOREHAND, AND THIS IS WHAT I LEARNED HERE TO GET TO THAT POINT.
JUDGE DAVILA: AGAIN, THIS IS A -- IT'S NOT AN ACADEMIC DISCUSSION, IT'S SOMETHING THAT WE STRIVE TO DO, BUT WE'RE ALL HUMANS. AND YOU HEARD ME TALK ABOUT UNREAD A BOOK, UNRING A BELL. THAT'S IMPOSSIBLE, OF COURSE. SO WHAT WE ASK YOU TO DO IS YOU HAVE THIS EXPERIENCE OF YOUR LITERATURE AND WATCHING AND READING, BUT THE QUESTION AGAIN IS -- AND I'M SORRY TO BELABOR THIS FOR YOU -- BECAUSE I THINK I HEARD YOU SAY YOU CAN DO THAT, YOU CAN PUT THAT ASIDE, THAT IS, EVERYTHING THAT YOU HAVE READ, SEEN, OR HEARD, AND DECIDE, IF YOU'RE SELECTED AS A JUROR IN THIS CASE, YOU CAN DECIDE THIS CASE, MAKE YOUR DECISION BASED ONLY ON THE EVIDENCE IN THIS CASE AND NOT ON ANY OUTSIDE PERIPHERAL INFORMATION.
JUROR: THAT IS INDEED WHAT I BELIEVE I CAN DO.
JUDGE DAVILA: OKAY. THANK YOU, SIR. THANK YOU FOR THAT. ANY FOLLOWUP ON THAT FROM EITHER COUNSEL?
MR. SCHENK: NO, YOUR HONOR.
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: WE'RE GOING TO TAKE A RECESS. MR. LEE, THIS WOULD PROBABLY BE A GOOD TIME FOR US TO SPEAK WITH YOU ABOUT THOSE ISSUES. SO IF YOU WOULD REMAIN? WE'LL TAKE ABOUT 15 MINUTES. MS. GROGAN, I'D LIKE TO HAVE YOU COME BACK A LITTLE EARLY SO WE CAN JUST HAVE A LITTLE FOLLOWUP WITH YOU AS WELL, PLEASE.
JUROR: WHAT TIME WOULD YOU LIKE ME?
JUDGE DAVILA: YES, RIGHT. WELL, WE'LL TAKE 15 MINUTES. I THINK WE'LL BE ABOUT 10 MINUTES WITH MR. LEE, MAYBE NO MORE THAN THAT. THEN WE'LL BE HAPPY TO TAKE YOU UP IF THAT'S CONVENIENT.
JUROR: SURE.
JUDGE DAVILA: OKAY. ALL RIGHT. LET'S TAKE A BREAK NOW FOR ABOUT 15 MINUTES. FOLKS, DO NOT DISCUSS ANYTHING ABOUT THIS CASE. DO NOT READ ANYTHING ABOUT THIS CASE. PLEASE KEEP AN OPEN MIND AND WE'LL SEE YOU IN 15 MINUTES. THEY'RE GOING DOWNSTAIRS?
COURT CLERK: THEY NEED TO REPORT BACK HERE IN 15 MINUTES. THANK YOU.
(JURY OUT AT 3:11 P.M.)
JUDGE DAVILA: COUNSEL, DO YOU WANT TO TAKE FIVE MINUTES BEFORE WE ENGAGE MR. LEE, OR DO YOU WANT TO GO FORWARD NOW?
MR. DOWNEY: WHY DON'T WE TAKE FIVE MINUTES NOW, YOUR HONOR?
JUDGE DAVILA: OKAY. MR. LEE, WE'RE GOING TO TAKE FIVE MINUTES NOW. YES, IF YOU WANT TO TAKE A BREAK AND COME BACK IN FOUR MINUTES, THAT WOULD BE GREAT. THANK YOU.
JUROR: I JUST WANT TO ASK IF I COULD TALK TO THE JUDGE PRIVATELY, OR WHENEVER I CAN.
(DISCUSSION OFF THE RECORD.)
COURT CLERK: CAN YOU GIVE US YOUR JUROR NUMBER, PLEASE?
JUROR: 42.
JUDGE DAVILA: LET'S WAIT UNTIL EVERYONE HAS GONE, MA'AM, AND --
COURT CLERK: MS. HERNANDEZ PEREZ?
JUROR: YES.
JUDGE DAVILA: AND YOU'VE EXPRESSED AN INTEREST, THROUGH MS. KRATZMANN, YOU WANT TO TALK TO --
JUROR: TO LIKE YOU PRIVATELY ON ONE OF THE QUESTIONS.
JUDGE DAVILA: I SEE. YOU WANT TO SPEAK ABOUT ONE OF THE QUESTIONS PRIVATELY WITHOUT ALL OF THE OTHER JURORS HERE?
JUROR: YES.
JUDGE DAVILA: OKAY. WE'LL TAKE THAT UP IN -- I THINK THESE LAWYERS NEED A BREAK.
JUROR: YEAH, THAT'S FINE.
JUDGE DAVILA: SO WE'LL TAKE THAT UP IN JUST A MOMENT.
JUROR: THANK YOU.
JUDGE DAVILA: THANK YOU.
(RECESS FROM 3:13 P.M. UNTIL 3:23 P.M.)
JUDGE DAVILA: WE'RE BACK ON THE RECORD. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN, EXCEPT MS. HOLMES WILL BE HERE IN A MOMENT.
(PAUSE IN PROCEEDINGS.)
(JURY OUT AT 3:24 P.M.)
(ONLY PROSPECTIVE JUROR LEE PRESENT.)
JUDGE DAVILA: WE'RE BACK ON THE RECORD. COUNSEL ARE PRESENT AND MS. HOLMES IS NOT PRESENT. MR. LEE, HE IS PRESENT. HE WANTED TO SPEAK PRIVATELY WITH COURT AND COUNSEL. LET ME ASK, MR. DOWNEY, SHOULD WE PROCEED WITH THIS CONVERSATION WITH YOUR CONSENT?
MR. DOWNEY: YOU MAY, YOUR HONOR. WE CAN DO THAT HERE OR IN THE JURY ROOM AS YOUR HONOR HAD MENTIONED PREVIOUSLY. I THOUGHT THAT SOME OF THE JURORS IN EXPRESSING THESE CONCERNS WANTED TO SPEAK WITH THE PARTIES AND THE COURT. I'M NOT SURE. THEY CAN OBVIOUSLY BE ASKED ABOUT THAT.
JUDGE DAVILA: BUT FOR PURPOSES OF THESE MEETINGS, THOUGH, YOUR CLIENT IS NOT PRESENT AND YOU'RE AGREEING TO WAIVE HER PRESENCE FOR THIS CONVERSATION WITH THESE JURORS?
MR. DOWNEY: YES, YOUR HONOR.
JUDGE DAVILA: OKAY. THANK YOU. THANK YOU. ANY COMMENT FROM THE GOVERNMENT?
MR. SCHENK: NO. THANK YOU, YOUR HONOR.
JUDGE DAVILA: MR. LEE, YOU'RE PRESENT, SIR, AND YOU WANTED TO SPEAK PRIVATELY WITH THE LAWYERS AND MYSELF. IS THIS A GOOD TIME TO DO THAT? DO YOU WANT TO DO THAT NOW?
JUROR: SURE.
JUDGE DAVILA: SURE. WHY DON'T YOU COME FORWARD TO THE MICROPHONE. LET ME ASK YOU, MR. LEE, WE'RE STILL IN A PUBLIC COURTROOM, IN OTHER WORDS, IT'S OPEN TO THE PUBLIC. I JUST WANT YOU TO BE AWARE OF THAT BEFORE YOU MAKE ANY COMMENTS. IF THERE'S SOMETHING THAT YOU'RE GOING TO SAY THAT YOU DON'T WANT THE PUBLIC TO KNOW, YOU NEED TO LET ME KNOW AND THE REASONS FOR THAT. BUT IF YOU'RE OTHERWISE COMFORTABLE SPEAKING OUTSIDE OF THE PRESENCE OF THE OTHER JURORS, OTHERWISE RECOGNIZING THAT THIS IS STILL A PUBLIC COURTROOM, I'M HAPPY TO HEAR FROM YOU, SIR.
JUROR: THE THING I WANT TO TALK ABOUT MIGHT MAKE ME VERY EMOTIONAL. SO I DON'T KNOW -- I DON'T THINK THAT'S A THING THAT I WANT TO SHOW OTHERS.
JUDGE DAVILA: I SEE. ALL RIGHT. DO YOU THINK THAT WHAT YOU WANT TO SPEAK ABOUT IS SOMETHING PRIVATE TO YOU PERSONALLY?
JUROR: UH-HUH.
JUDGE DAVILA: AND WILL THIS CAUSE YOU, IF IT'S IN THE PUBLIC FORUM, WILL IT CAUSE YOU -- I'M NOT CERTAIN OF THE EFFECT OF THAT. ARE YOU CONCERNED THAT YOUR EMOTIONAL DISPLAY, IF YOU BECOME EMOTIONAL, THAT'S SOMETHING THAT YOU DON'T WANT FOLKS TO SEE? OR IS THE INFORMATION SUCH THAT IT'S PRIVATE, CONFIDENTIAL, AND SENSITIVE TO YOU, YOUR FAMILY, OR A PERSONAL INTEREST?
JUROR: IT'S NOT THAT SENSITIVE, BUT I JUST WORRY ABOUT WHETHER OR NOT IT WOULD INFLUENCE ABOUT HOW OTHERS PERCEIVE THIS. MAYBE NOT.
JUDGE DAVILA: OTHER PROSPECTIVE JURORS YOU MEAN?
JUROR: YEAH.
JUDGE DAVILA: OKAY. ARE YOU COMFORTABLE TALKING NOW?
JUROR: SURE.
JUDGE DAVILA: IF YOU'RE NOT, TELL ME. BUT IF YOU ARE, WE CAN HAVE OUR CONVERSATION NOW.
JUROR: SURE.
JUDGE DAVILA: GO RIGHT AHEAD, SIR, IF YOU WOULD LIKE.
JUROR: SO YOU ASKED ABOUT WHETHER I HAD ANY FAMILY MEMBERS WHO ARE RELATED TO CHILD ABUSE, LIKE ANY CHILD ABUSE CASES.
JUDGE DAVILA: YES.
JUROR: SO THERE IS ONE FROM WITH MY FAMILY WHERE MY LITTLE BROTHER, HE WAS -- HE ACCUSED MY MOTHER OF ABUSING HIM WHEN HE WAS A KID, AND THIS WENT TO TRIAL. THAT CASE HAS BEEN A HUGE THING IN OUR FAMILY WHERE EVEN TO THIS DAY WE STILL TALK ABOUT IT, AND EVERY TIME IT COMES UP, IT CAUSES A LOT OF EMOTIONAL DISTRESS. SO I THINK IF I DO -- I WANT TO BE IMPARTIAL, BUT WHEN I DO HEAR ANYTHING WITH ABUSE, IT DOES MAKE ME VERY, VERY EMOTIONAL.
JUDGE DAVILA: THANK YOU, SIR. SIR, IS IT CHILD ABUSE? IS IT ABUSE IN GENERAL?
JUROR: IT'S CHILD ABUSE.
JUDGE DAVILA: OKAY. I'M, I'M -- I HAVE CONFIDENCE THAT THERE ARE NOT ANY ISSUES IN THIS CASE REGARDING CHILD ABUSE. AM I RIGHT ABOUT THAT?
MR. SCHENK: YOU'RE CORRECT.
MR. DOWNEY: THAT'S RIGHT, YOUR HONOR.
JUDGE DAVILA: SO, SIR, THERE WILL NOT BE ANY ISSUES IN THIS CASE RELATED TO CHILD ABUSE. DOES THAT GIVE YOU SOME COMFORT?
JUROR: YES, ABSOLUTELY.
JUDGE DAVILA: ANYTHING ELSE YOU WOULD LIKE ME TO KNOW?
JUROR: I BELIEVE THERE'S ANOTHER QUESTION ABOUT WHETHER I WOULD BE IMPARTIAL TO IF POLICE OFFICERS OR LAW ENFORCEMENT --
JUDGE DAVILA: YES.
JUROR: -- GAVE -- PERSONALLY, I THINK I AM IMPARTIAL TO IT, BUT MY EXPERIENCE, I ALSO WROTE THIS ON MY FORM OR THE QUESTIONNAIRE, BUT MY EXPERIENCE WITH LAW ENFORCEMENT, I'VE ONLY FELT LIFE THREATENING EXPERIENCES FROM THEM. SO RIGHT NOW MY MIND IS CLEAR THAT I THINK I AM IMPARTIAL, BUT WHEN IT COMES TO THE MOMENT IF -- UNLESS THEY'RE GIVING LIKE NUMERICAL FACTS. IF THEY'RE TALKING ABOUT -- IF THEY'RE DEFENDING OR ACCUSING, I DON'T THINK I CAN FULLY TRUST THAT.
JUDGE DAVILA: I SEE. SO IF THE LAW ENFORCEMENT, THE AGENTS ARE SPEAKING ABOUT FACTS, NUMERICAL FACTS, DATA, YOU'RE OKAY WITH THAT?
JUROR: I'M PRETTY SURE I WOULD BE OKAY WITH THAT.
JUDGE DAVILA: BUT THE CONFLICT YOU HAVE IS WITH LAW ENFORCEMENT OFFICERS --
JUROR: IF THEY HAVE ANY INTENTION ON BEING ON EITHER SIDE, LIKE IF THEY ARE TRYING TO CONVINCE US OF -- LIKE IF THEY HAVE ANY INTENTION OF BEING THE ACCUSER OR PART OF THE DEFENSE.
JUDGE DAVILA: IF THE LAW ENFORCEMENT OFFICER IS ACCUSING OR -- THERE MAY BE -- I THINK YOU'LL HEAR TESTIMONY FROM POSSIBLY AGENTS AND OTHER GOVERNMENT REPRESENTATIVES. MR. SCHENK, CAN YOU OR ANYONE ON YOUR TEAM ADD A LITTLE CLARITY TO THAT?
MR. SCHENK: YES, YOUR HONOR, THAT'S CORRECT. THERE CERTAINLY IS THE POSSIBILITY THAT LAW ENFORCEMENT AGENTS WOULD TESTIFY ABOUT FACTS THAT THEY LEARNED DURING THE COURSE OF THE INVESTIGATION, OR ALSO MAYBE GOVERNMENT REGULATORS WHO COME IN AND TALK ABOUT WORK THAT THEY DID THROUGH ENFORCEMENT OF REGULATIONS, AUDITS, THINGS LIKE THAT.
JUDGE DAVILA: I SEE. ARE THERE -- HOW SHALL I SAY? -- POLICE OFFICERS, BEAT OFFICERS, PATROL OFFICERS, ANY OF THOSE TYPES OF TESTIMONY ANTICIPATED?
MR. SCHENK: NO LOCAL LEVEL LAW ENFORCEMENT, JUST FEDERAL LAW ENFORCEMENT.
JUDGE DAVILA: I SEE. DOES THAT ASSIST YOU, SIR?
JUROR: YEAH, THAT COMPLETELY DOES ANSWER MY QUESTIONS.
JUDGE DAVILA: ANY QUESTIONS, MR. DOWNEY?
MR. DOWNEY: NO, YOUR HONOR. THANK YOU.
JUDGE DAVILA: ANYTHING ELSE, MR. LEE, YOU WOULD LIKE US TO KNOW?
JUROR: NO.
JUDGE DAVILA: DO YOU HAVE ANY QUESTIONS FOR ME OR ANY QUESTIONS I CAN HELP YOU WITH?
JUROR: NO.
JUDGE DAVILA: THANK YOU VERY MUCH, MR. LEE. IF YOU WOULD GO OUTSIDE, MR. LEE, AND I THINK MS. GROGAN IS OUTSIDE THERE. IF YOU COULD ASK HER TO COME IN.
JUROR: NO PROBLEM.
JUDGE DAVILA: THANK YOU.
(ONLY PROSPECTIVE JUROR GROGAN PRESENT.)
JUDGE DAVILA: HI, MS. GROGAN.
JUROR: YEAH.
JUDGE DAVILA: HI, WELCOME BACK. NO, NOT YOU. MS. GROGAN. I'M SORRY I'M SPEAKING TO SOMEONE ELSE. WE PANTED TO FOLLOW UP, AND THIS IS ABOUT YOUR COMMENTS EARLIER, I THINK. YOU TOLD US, AND I THINK YOU JUST TOLD MR. DOWNEY THAT YOU READ THIS BOOK.
JUROR: CORRECT, YES.
JUDGE DAVILA: AND THANK YOU FOR CORRECTING YOUR ANSWER. YOU HAVE SOME OPINIONS ABOUT THAT. SO MAY I FOLLOW UP WITH THAT? YOU'VE READ THE BOOK. YOU AND I TALKED ABOUT UNREADING, YOU CAN'T DO THAT. SO WHAT -- TELL ME ABOUT THE OPINIONS YOU HAVE AND HOW THOSE WILL IMPACT, IF AT ALL, YOUR ABILITY TO BE FAIR AND IMPARTIAL AS A JUROR.
JUROR: GOTCHA. SO I THINK WHAT I WAS TRYING TO CLARIFY WAS YOUR QUESTION WAS AT THE TIME, DID I HAVE ANY OPINIONS? I BELIEVE THAT THE ANSWER IS AFTER REFLECTION, YES, I DID HAVE SOME OPINIONS. I WORK AT A COMPANY NOW WITH A FEMALE CEO AND IN, LIKE, A HEALTH CARE RELATED FIELD, EVEN THOUGH I'M AN ENGINEERING MANAGER. SO IN SILICON VALLEY. SO I THINK THERE WAS SOME AMOUNT OF DISAPPOINTMENT THAT I WAS TRYING TO CONVEY THE GENERALLY SPEAKING LIKE, OH, THERE'S NOT THAT MANY WOMEN THAT GET TO, YOU KNOW, BECOME CEO OF A HIGH POWERED COMPANY, SO DISAPPOINTMENT IN RESPONSE TO WHAT HAPPENED IN THE BOOK.
JUDGE DAVILA: I SEE. OKAY. THAT WAS IN RESPONSE TO MR. DOWNEY'S QUESTION.
JUROR: CORRECT, YES.
JUDGE DAVILA: MR. DOWNEY, DO YOU HAVE ANY FOLLOW-UP QUESTIONS?
MR. DOWNEY: NO, I DON'T, YOUR HONOR.
JUDGE DAVILA: OKAY. MR. SCHENK, YOUR TEAM?
MR. SCHENK: NO, I DON'T.
JUDGE DAVILA: THANK YOU, MS. GROGAN. I APPRECIATE IT.
JUROR: NO PROBLEM.
JUDGE DAVILA: YOU KNOW, MS. GROGAN, I THINK MS. HERNANDEZ IS OUTSIDE, AND IF YOU COULD ASK HER TO COME IN I WOULD BE GRATEFUL. THANK YOU.
JUROR: THANK YOU.
COURT CLERK: JUROR NUMBER 42.
(ONLY PROSPECTIVE JUROR HERNANDEZ PRESENT.)
JUDGE DAVILA: MS. HERNANDEZ, HI.
JUROR: YES.
JUDGE DAVILA: WHY DON'T YOU COME TO THE MICROPHONE HERE. YOU'RE JUROR NUMBER 42.
JUROR: YES.
JUDGE DAVILA: AT THE BREAK YOU INDICATED YOU WANTED TO TALK TO US PRIVATELY. SO WHAT WOULD YOU LIKE US TO KNOW?
JUROR: SO IT WAS JUST, LIKE, THE DOMESTIC VIOLENCE. MY PARENTS -- MY DAD USED TO DRINK A LOT AND MY PARENTS FOUGHT A LOT, AND IT DID GET PHYSICAL, LIKE, SOMETIMES. BUT HE -- WE ONLY GOT THE COPS CALLED ONCE AND THAT WAS JUST BECAUSE, LIKE, MY COUSIN CALLED HIM SO WE CAN GET SOME OF OUR THINGS AND LEAVE. BUT I TRY TO BLOCK THAT OUT BECAUSE HE DID PASS AWAY FOUR YEARS AGO BECAUSE OF DRINKING A LOT. THAT'S ABOUT IT.
JUDGE DAVILA: THANK YOU. THANK YOU FOR SHARING. I KNOW IT'S DIFFICULT TO TALK ABOUT THESE THINGS AND I APPRECIATE YOU SHARING THAT. WERE YOU -- MAY I ASK YOU, WERE YOU EVER INVOLVED IN ANY LEGAL PROCEEDINGS REGARDING THOSE INCIDENTS? DID YOU EVER GO TO COURT OR ANY OF THAT?
JUROR: NO.
JUDGE DAVILA: CAN YOU TELL US, DID YOU OR ANYONE IN YOUR FAMILY RECEIVE ANY COUNSELLING, THERAPY, OR ANY OTHER SERVICES?
JUROR: NO, NONE OF US.
JUDGE DAVILA: OKAY. IS THERE ANYTHING ABOUT THAT EXPERIENCE THAT YOU THINK WILL AFFECT YOUR ABILITY TO BE A FAIR JUROR IN THIS CASE?
JUROR: MAYBE JUST A LITTLE BECAUSE I'M AGAINST IT SINCE WE WENT THROUGH IT AND EVERYTHING, BUT --
JUDGE DAVILA: SURE. OKAY.
JUROR: YEAH.
JUDGE DAVILA: I DON'T KNOW -- I ASK THOSE QUESTIONS AS A GENERALITY. I DON'T KNOW, I CAN'T TELL YOU WHAT EVIDENCE IS GOING TO BE IN THE CASE. I JUST DON'T KNOW. BUT THOSE ARE JUST SOME OF MY GENERAL QUESTIONS THAT I ASK ABOUT A CASE. SO, MR. SCHENK, ANY QUESTIONS?
MR. SCHENK: NOTHING FURTHER. THANK YOU.
JUDGE DAVILA: MR. DOWNEY?
MR. DOWNEY: NOTHING, YOUR HONOR, NOT ON THAT SUBJECT. I DID JUST WANT TO ASK A QUESTION ABOUT LANGUAGE IF I MIGHT. I BELIEVE THIS JUROR SEEMS PERFECTLY CAPABLE TO ME, BUT SHE HAD CHECKED --
JUDGE DAVILA: I SAW THAT. MS. HERNANDEZ, I SAW THAT YOU PUT ON THE QUESTIONNAIRE LANGUAGE, AND YOU SAID THERE ARE SOME THINGS THAT YOU DIDN'T QUITE UNDERSTAND THE QUESTIONS, SOME OF THE QUESTIONS, AND I THINK YOUR LAST QUESTION WAS, YOU KNOW, SOME OF THESE I DIDN'T QUITE UNDERSTAND. I TRIED THE BEST I COULD. THANK YOU FOR THAT. THAT'S WHAT WE ASKED FOR. LET ME APOLOGIZE FOR THE QUESTIONNAIRE. SOMETIMES LAWYERS AND JUDGES PUT QUESTIONS TOGETHER WITHOUT THINKING ABOUT HOW SOMEONE -- AND WE THINK, OH, THIS IS A GREAT QUESTION, BUT WE DON'T REALIZE HOW SOMEONE, THE LISTENER, WOULD ACTUALLY LOOK AT IT. THAT'S HOW I TOOK YOUR ANSWER. I HAVE YOUR QUESTIONNAIRE HERE.
JUROR: YEAH. WELL, I JUST, LIKE, WHEN I WAS IN SCHOOL AND I HAD AN IEP, AND SO I TOOK A LONGER TIME TO PROCESS THINGS THAT I'M TOLD, AND THAT'S JUST ABOUT IT.
JUDGE DAVILA: I SEE. UH-HUH. OKAY. YOU WENT TO HOMESTEAD HIGH SCHOOL?
JUROR: YES.
JUDGE DAVILA: THAT'S A CALIFORNIA DISTINGUISHED HIGH SCHOOL.
JUROR: YES.
JUDGE DAVILA: AND THAT'S ONE OF THE BEST HIGH SCHOOLS IN THE STATE.
JUROR: YES.
JUDGE DAVILA: AND YOU HAVE A DIPLOMA FROM THAT HIGH SCHOOL.
JUROR: YES, I GRADUATED LAST YEAR.
JUDGE DAVILA: GREAT. AND THEY'RE THE MUSTANGS, RIGHT?
JUROR: THE MUSTANGS.
JUDGE DAVILA: THAT'S RIGHT. AND THEY USUALLY HAVE GOOD FOOTBALL TEAMS AND BASKETBALL TEAMS AND THEY HAVE HIGH ACADEMICS.
JUROR: UH-HUH, THEY DO.
JUDGE DAVILA: WELL, CONGRATULATIONS ON THAT.
JUROR: THANK YOU.
JUDGE DAVILA: ANYTHING ELSE YOU WOULD LIKE US TO KNOW?
JUROR: JUST ALSO LIKE TWO DAYS. ON SEPTEMBER 14TH I HAVE AN ORTHODONTIST APPOINTMENT THAT WOULD AFFECT ME COMING HERE, AND ALSO IN NOVEMBER, I THINK THE 4TH OR THE 5TH I HAVE AN APPOINTMENT, I THINK A DOCTOR'S APPOINTMENT.
JUDGE DAVILA: MS. HERNANDEZ, DO YOU THINK THOSE ARE APPOINTMENTS YOU COULD CHANGE IF YOU NEEDED TO, OR CHANGE THE TIMING? YOU HEARD ME SAY I HOPE WE CAN FINISH AT 2:00 O'CLOCK, AND I'LL BE CANDID, THERE MAY BE DAYS THAT WE GO UNTIL 3:00 O'CLOCK. I THOUGHT WE WOULD BE DONE BY 2:00 O'CLOCK TODAY AND IT'S CLOSE TO 4:00. BUT THOSE APPOINTMENTS, ARE THEY SOMETHING THAT YOU THINK YOU MAYBE CAN GET A DIFFERENT TIME ON IF YOU HAD ENOUGH NOTICE?
JUROR: PROBABLY NOT THE ORTHODONTIST BECAUSE I'M SUPPOSED TO GET OFF MY BRACES, AND THEY'RE REALLY LIKE STRICT ON THE TIMING AND STUFF.
JUDGE DAVILA: YEAH, I UNDERSTAND THAT.
JUROR: THEY HAVE BOOKED EVERYONE ELSE.
JUDGE DAVILA: RIGHT. WHAT TIME IS YOUR APPOINTMENT?
JUROR: AT 11:00 IN THE MORNING?
JUDGE DAVILA: AND THAT'S ON WHAT DAY?
JUROR: I THINK TUESDAY, SEPTEMBER 14TH.
JUDGE DAVILA: 14TH, OKAY, AT 11:00. THANK YOU FOR LETTING US KNOW. DO YOU KNOW THE LENGTH OF THAT APPOINTMENT?
JUROR: I'M NOT SURE. SOMETIMES THEY TAKE A WHILE TO LIKE EVEN JUST SIT ME IN THE ROOM, SO I REALLY WOULDN'T KNOW.
JUDGE DAVILA: IS IT AN HOUR APPOINTMENT? IS IT AN ALL DAY APPOINTMENT?
JUROR: NO. PROBABLY AT MOST JUST AN HOUR, AN HOUR AND A HALF OR TWO MAYBE.
JUDGE DAVILA: I SEE. ALL RIGHT. THANK YOU.
JUROR: UH-HUH.
JUDGE DAVILA: ANY QUESTIONS FROM COUNSEL ABOUT THAT?
MR. SCHENK: NO.
MR. DOWNEY: NO.
JUDGE DAVILA: THANK YOU VERY MUCH, MS. HERNANDEZ.
JUROR: THANK YOU.
JUDGE DAVILA: YOU'RE WELCOME.
(NO PROSPECTIVE JURORS PRESENT.)
JUDGE DAVILA: SHOULD WE BRING OUR PANEL IN NOW?
COURT CLERK: DID YOU WANT TO SPEAK TO MR. SINGH WHO APPROACHED ME?
JUDGE DAVILA: NO, I DON'T. WE'RE FINE.
(PROSPECTIVE PANEL IN AT 3:40 P.M.)
JUDGE DAVILA: PLEASE BE SEATED. THANK YOU AGAIN FOR YOUR COURTESY. THE RECORD SHOULD REFLECT THAT ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. OUR JURY, PROSPECTIVE JURY PANEL ARE PRESENT. MR. DOWNEY FINISHED HIS QUESTIONS. ANY FURTHER QUESTIONS FOR THE PANEL, MR. DOWNEY?
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: MR. SCHENK, ANY FURTHER QUESTIONS FOR THE PANEL?
MR. SCHENK: NO, YOUR HONOR.
JUDGE DAVILA: I FAILED -- I'LL TAKE TWO MINUTES TO TALK ABOUT ALTERNATE JURY SERVICE. I THINK I TALKED TO YOU ABOUT ALTERNATES. WE'RE GOING TO SELECT FIVE ALTERNATES. THE ALTERNATES, YOU HEARD ME SAY THEY'LL SIT AS JURORS IN THE CASE, THROUGHOUT THE CASE. THEY WILL REPLACE THE DELIBERATING JURORS IF THE NEED ARISES. IF A SITTING JUROR CANNOT CONTINUE, OR IF A SITTING JUROR CANNOT CONTINUE DURING THE EVIDENCE, THAT ALTERNATE WILL REPLACE THAT JUROR, AND THIS IS AN IMPORTANT FUNCTION. LET ME ASK, DO ANY OF YOU HAVE ANY -- I'M TALKING TO THE PANEL HERE -- ANYONE HAVE ANY QUESTION ABOUT WHAT ALTERNATE JURY SERVICE IS? DOES ANYONE FEEL THAT THAT IS SOMETHING THAT THEY COULD NOT DO? THANK YOU. THAT'S A POSSIBILITY IN THE CASE, AND THIS IS WHEN I REMIND PEOPLE ABOUT JUNE 2ND, 1925 WHEN WALLY PIPP PLAYED FIRST BASE FOR THE YANKEES AND HE HAD A HEADACHE THAT DAY AND HE COULDN'T CONTINUE. AND THE MANAGER OF THAT TEAM, MILLER HUGGINS, REPLACED HIM.
AND HE REPLACED HIM WITH A YOUNG MAN WHO JUST GRADUATED FROM COLUMBIA UNIVERSITY. HIS NAME WAS LOU GEHRIG. MAYBE SOME OF YOU HAVE HEARD OF LOU GEHRIG. WALLY PIPP NEVER PLAYED OR STARTED FOR THE YANKEES AGAIN. I THINK HE WAS TRADED TO CINCINNATI AFTERWARDS, AND LOU GEHRIG WAS CALLED THE IRON HORSE, HE PLAYED 2130 CONSECUTIVE GAMES FOR THE YANKEES, A RECORD THAT STOOD UNTIL I THINK 1995 WHEN SOME KID CALLED CAL RIPKEN BROKE THE RECORD. BUT THAT RECORD STOOD ALL OF THAT TIME. I LIKE TO THINK OF ALTERNATE JURORS AS LOU GEHRIGS. THEY WILL STEP IN, THEY WILL DO THE JOB, AND DO A FANTASTIC JOB AS AN ALTERNATE JUROR, AND THAT'S WHY MY REMINDER ABOUT LOU GEHRIG, HE WAS A GREAT BASEBALL PLAYER. I THINK HIS BATTING AVERAGE WAS .340. MR. SCHENK, YOU PROBABLY KNOW THAT, OR I'M SURE COUNSEL KNOW THAT. BUT IT'S AN IMPORTANT JOB TO BE AN ALTERNATE JUROR, AND THAT'S WHY I REMIND YOU OF THIS OBLIGATION. SO ANYONE HAVE ANY QUESTIONS ABOUT SERVICE AS AN ALTERNATE JUROR? I SEE NO HANDS. LET ME ASK COUNSEL, MR. SCHENK, DO YOU PASS FOR CAUSE?
MR. SCHENK: YES.
MR. DOWNEY: WE DO HAVE SOME CHALLENGES FOR CAUSE, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. WE'LL TAKE THOSE UP AT SIDE-BAR, AND AS I SAID EARLIER THIS MORNING, OUR SIDE-BAR CONVERSATIONS WILL BE IN THE JURY ROOM. SO LET'S DO THAT. LADIES AND GENTLEMEN, I'M GOING TO MEET WITH THESE LAWYERS PRIVATELY IN OUR JURY ROOM BEHIND ME. I'M GOING TO LEAVE THE COURTROOM. YOU CAN STAY HERE. YOU CAN STAND AND STRETCH. I DON'T KNOW HOW LONG THIS WILL TAKE, BUT YOU CAN STAND AND STRETCH FOR A MOMENT IF YOU'D LIKE. I HOPE WE'RE NOT GOING TO TAKE TOO LONG, BUT WE'LL TAKE WHATEVER TIME WE NEED. BUT YOU CAN STAND HERE. WHILE WE'RE GONE, YOU'RE NOT TO DISCUSS THE CASE AMONGST YOURSELVES, WITH ANYONE. YOU'RE NOT TO LOOK AT ANYTHING ON YOUR PHONES OR OTHER NEWS OR ANYTHING ABOUT THIS CASE. AND WE'LL BE BACK IN JUST A MOMENT. SO, COUNSEL, MS. KRATZMANN WILL SHOW YOU HOW TO GET TO THE JURY ROOM.
COURT CLERK: YES, YOUR HONOR.
JUDGE DAVILA: AND I'LL MEET YOU THERE.
(SIDE-BAR CONFERENCE ON THE RECORD.)
JUDGE DAVILA: WE'RE ON THE RECORD. WE'RE AT SIDE-BAR, WHICH OUR SIDE-BARS ARE IN THE JURY ROOM. ALL COUNSEL ARE PRESENT. MS. HOLMES IS NOT PRESENT. SHE HAS WAIVED HER APPEARANCE FOR THESE SIDE-BAR CONFERENCES. MR. DOWNEY, YOU HAVE SOME COMMENTS?
MR. DOWNEY: YOUR HONOR, I CAN JUST GIVE YOU THE NUMBERS OF THE JURORS ON WHOM WE EITHER HAVE A CAUSE CHALLENGE OR SUGGEST BASED ON A HARDSHIP SITUATION THAT THEY MENTIONED TO BE EXCUSED.
JUDGE DAVILA: OKAY.
MR. DOWNEY: THAT WOULD BE 1, 11, 14, 26, 46, 49, 63, 94, 81, AND 95.
JUDGE DAVILA: OKAY. DO YOU WANT TO GO THROUGH THOSE WITH ME AS TO THE REASONS? SO LET'S START WITH 1.
MR. DOWNEY: YOUR HONOR, JUROR 1 IS A JUROR WHO HAS HAD EXPOSURE TO, BY MY COUNT GIVEN THE LENGTH OF THE MEDIA, PROBABLY 20 HOURS OF NEGATIVE MEDIA ABOUT THE DEFENDANT; HE'S CONSUMED A BOOK; HE'S WATCHED SEVERAL OF THE FULL-LENGTH PROGRAMS ABOUT THE SITUATION AT THERANOS. THEY INCLUDE "ABC NEWS'S 20/20," "60 MINUTES" AND A TED TALK GIVEN BY A WITNESS IN THE CASE, ERICA CHEUNG, C-H-E-U-N-G. HE ACKNOWLEDGED IN CONNECTION WITH FILLING OUT THE QUESTIONNAIRE THAT HE HAD A QUESTION IN HIS MIND ABOUT WHETHER HE COULD BE FAIR, OBJECTIVE, AND IMPARTIAL IN THE CASE. HE ACKNOWLEDGED IN RESPONSE TO SOME OF OUR DISCUSSIONS THAT HE HAD OPINIONS RELATED TO THERANOS AND TO THE DEFENDANT. SO WE WOULD ASK THAT HE BE DISMISSED FOR CAUSE.
JUDGE DAVILA: MR. SCHENK?
MR. SCHENK: YOUR HONOR, MR. DOWNEY DID NOT ASK FOR JUROR 31 TO BE EXCUSED FOR CAUSE, MS. GROGAN. SHE READ THE BOOK. I'M A LITTLE BIT CONCERNED ABOUT A DOUBLE STANDARD HERE. I CAME INTO THIS ROOM PREPARED TO TELL YOUR HONOR THAT I THINK PEOPLE WHO READ THE BOOK I'M NOW CONVINCED SHOULDN'T BE ON THE JURY. I APPRECIATE THAT TO QUESTION 39 MANY OF THEM SAID I CAN BE FAIR. I THINK THAT THEY MEAN IT WHEN THEY SAY THAT, BUT HONESTLY, I LISTENED TO MS. GROGAN WHO GOT UP AND SAID, "I'M SURPRISED THAT I WAS ALLOWED TO BE HERE," AND THAT RANG TRUE TO ME. I WANTED TO WALK INTO THIS ROOM, AND I'M NOT GOING TO BACK AWAY FROM YOU, AND TELLING YOU THAT 31 AND 63 BY MY COUNT, THOSE ARE THE ONES WHO READ THE BOOK IN THIS GROUP, THEY SHOULD BE EXCUSED. I'M NOT SURE WHY THE DEFENSE IS NOT ASKING FOR 31 TO BE EXCUSED.
JUDGE DAVILA: MR. DOWNEY?
MR. DOWNEY: I THINK IF WE CAN STIPULATE TO JURORS WHO HAVE NOT ONLY READ THE BOOK BUT BEEN EXPOSED TO COMPARABLE LONG-FORM AND COMMENTARY ON THERANOS AND THE SITUATION, WE COULD PROBABLY GET TO SOME AGREEMENT THERE. I JUDGED JUROR 31 TO BE THE MOST CONSENSUS JUROR IN TERMS OF MAKING COMMENTS AS TO WHEN THE BIAS AROSE. SHE WAS CONCERNED THAT SHE HAD NOT BEEN CANDID IN THAT REGARD. BUT I THOUGHT I HEARD HER TO SAY THAT SHE WOULD PUT IT ASIDE AT THAT TIME. SO I THINK I -- I THOUGHT SHE WAS PARSING THINGS BETWEEN HER OPINION AT THE TIME AND LATER IN A WAY THAT WAS SATISFACTORY TO US. BUT I CERTAINLY WOULD -- IF WE WERE TO INCLUDE NOT ONLY THE BOOK BUT COMPARABLE CONTENT OF THE BOOK, THEN THAT'S CERTAINLY AN APPROACH THAT WE WOULD BE WILLING TO TRY TO STIPULATE WITH THE GOVERNMENT ON.
JUDGE DAVILA: MR. SCHENK?
MR. SCHENK: YOUR HONOR, MR. RISHI GAVE US THE LANGUAGE THAT WE'RE NOW USING TO DISCUSS THIS PERSON. HE WAS THE ONE WHO GAVE US THE PHRASE TODAY INFORMATION ATTRIBUTION. SO IF THE DIFFERENCE BETWEEN MS. GROGAN AND MR. RISHI IS HOW MS. GROGAN CONVINCED MR. DOWNEY THAT SHE WAS CAPABLE OF INFORMATION ATTRIBUTION, THAT IS, DETERMINING WHEN SHE LEARNED SOMETHING AND KEEPING THAT IN ONE SEGMENT IN HER MIND BUT NOT OTHER FACTS, I THINK MR. RISHI FITS INTO THAT CATEGORY THE SAME WAY, AT LEAST BY THE WAY THAT I HEARD HIS COMMENTS. TO MORE DIRECTLY ANSWER MR. DOWNEY'S QUESTION, THOUGH, THE GOVERNMENT WILL NOT AGREE THAT AS A WHOLE CATEGORY LONG FORM SHOULD BE -- IF SOMEONE HAS CONSUMED LONG FORM, THEY SHOULD BE EXCUSED. IN MY VIEW, IN THE GOVERNMENT'S VIEW, I DRAW A LINE BETWEEN SEEING "60 MINUTES" HOWEVER MANY MONTHS OR YEARS AGO AND NOT RECALLING VERY MUCH OF IT AND SAYING THAT THEY CAN BE FAIR. I THINK THAT IS SUBSTANTIVELY DIFFERENT FROM SOMEONE WHO, AS I THINK EITHER MR. DOWNEY OR THE JUROR SAID, MAYBE IT TOOK ME A WEEK TO READ THE BOOK. THAT'S A LONG TIME TO SPEND WITH THIS MATERIAL, AND I FOUND THE COMMENT THAT MS. GROGAN MADE PRETTY APPROPRIATE, "I'M SURPRISED I COULD MAKE IT THIS FAR HAVING READ THE BOOK." HONESTLY I'M TRYING TO BE FAIR TO SAY IF YOU'VE READ THE BOOK, I DON'T THINK YOU SHOULD BE ON THE JURY. BUT I DON'T THINK THEY'RE AROUND LONG FORM.
JUDGE DAVILA: I APPRECIATE, MR. SCHENK, YOUR SUGGESTION AND AN OFFER THAT EVERYONE WHO HAS READ THE BOOK LET'S JUST EXCUSE THEM AND BE DONE WITH THEM. MR. RISHI DID GIVE US SOME GUIDANCE. I THOUGHT HE WAS VERY CANDID ABOUT WHAT HE SAID. I THINK I TAKE HIS POINT IF MS. GROGAN IS GOING, THEN MR. RISHI SHOULD GO, TOO, BECAUSE HE READ THE BOOK AND NOTWITHSTANDING WHAT HE SAID AND MS. GROGAN SAID, THEY READ THE BOOK. AND TO -- IT SEEMS LIKE IT WOULD INURE TO THE FAIRNESS OF THE TRIAL IF FOLKS WHO HAVE READ THE BOOK ARE NOT ON THE JURY, THEN WE DON'T HAVE TO WORRY ABOUT INFECTION FROM ANYTHING THAT MIGHT COME UP.
MR. DOWNEY: WELL, YOUR HONOR, IT'S CERTAINLY THE INDICATION THAT -- I'M PLEASED THAT THE GOVERNMENT RECOGNIZES THE EXPOSURE TO AT LEAST SOME LONG-FORM CONTENT CAN LEAD TO BIAS HERE, AND I THINK IF THAT IS THE CASE, THEN I THINK WE'RE GOING TO BE ON A SLIPPERY SLOPE TOWARDS MY PROPOSAL. I ACTUALLY THINK SOME OF THE VIDEO PRESENTATION IS MUCH WORSE THAN SOMEONE WHO HAS SAT WITH THE ENTIRE BOOK. IT IS GENERALLY FRAMED AS A SHORT OPENING STATEMENT FOR THE GOVERNMENT IN THIS CASE, AND I THINK THAT IF WE COULD, IF WE COULD EXPAND IT TO THOSE CATEGORIES, I CERTAINLY WOULD BE PLEASED TO AGREE TO THAT. THAT BEING SAID, IF MR. SCHENK IS MOVING FOR CAUSE ON A JUROR AND SO FORTH, I DON'T OPPOSE THAT.
JUDGE DAVILA: WELL, WHAT I HEARD MR. SCHENK SAY IS THAT HE WOULD AGREE TO EXCUSE JUROR NUMBER 1, JUROR NUMBER 31, AND JUROR NUMBER 61. MR. SCHENK?
MR. SCHENK: 63.
JUDGE DAVILA: 63. THANK YOU. THAT'S MR. RISHI?
MR. SCHENK: YES, YOUR HONOR.
JUDGE DAVILA: DO YOU HAVE ANY OBJECTION TO THAT?
MR. DOWNEY: I DON'T HAVE ANY OBJECTION TO THAT, YOUR HONOR.
JUDGE DAVILA: AND THAT'S FOR CAUSE BECAUSE THEY'VE READ THE BOOK, MR. SCHENK, AND YOU BELIEVE THAT AFFECTS AND OTHERWISE IMPAIRS THEIR ABILITY TO BE FAIR AND IMPARTIAL?
MR. SCHENK: YES, YOUR HONOR.
JUDGE DAVILA: ANY COMMENT ON THAT?
MR. DOWNEY: NO, YOUR HONOR, NOT BEYOND WHAT I'VE ALREADY SAID.
JUDGE DAVILA: OKAY. WELL, THANK YOU. ALL RIGHT. LET ME -- I'M LOOKING AT MY NOTES AS TO THESE PROSPECTIVE JURORS. THEY DID READ THE BOOK. THEY DID IN A VARIETY WAYS TELL US ABOUT THE BOOK, THEY'VE TOLD US OBVIOUSLY THE EFFECT OF THEM IN SOME WAYS, THEY HAVE EXPRESSED IN VARIOUS DEGREES HOW THEY CAN PUT ASIDE THOSE FEELINGS AND ANY MEMORY THAT THEY HAVE OF IT. IT WOULD APPEAR THAT OUT OF AN ABUNDANCE OF CAUTION, THOUGH, THAT THOSE JURORS SHOULD BE EXCUSED AT THIS TIME BECAUSE OF THE FACT THAT THEY'VE READ THIS BOOK. AS I UNDERSTAND IT, THE BOOK DETAILS IN GREAT DETAIL THE HISTORY, THE STORY OF THERANOS AS WELL AS MS. HOLMES, AND I THINK IT COVERS MR. BALWANI AS WELL PERHAPS, AND THE RISK OF HAVING THAT INFECT A JURY HERE IS SOMETHING THAT I WOULD LIKE TO AVOID. SO WE'LL EXCUSE 1, 31, AND 63. MR. DOWNEY, NUMBER 11?
MR. DOWNEY: YOUR HONOR, I THINK THERE ARE A FEW ISSUES IN CONNECTION WITH THIS JUROR. FIRST OF ALL, I DON'T KNOW WHAT THE COURT'S ATTITUDE WAS TOWARDS THE SCHEDULED TRAVEL FOR THIS JUROR IN TERMS OF HARDSHIP.
JUDGE DAVILA: YES. I THINK ON SEPTEMBER 8TH TO THE 15TH, I THINK. IS THAT RIGHT? I THINK THAT'S --
MR. DOWNEY: THAT'S RIGHT. AND ALSO ON OCTOBER 16TH TO THE 19TH.
JUDGE DAVILA: DID THIS JUROR TELL US THAT THAT COULD BE ADJUSTED?
(PAUSE IN PROCEEDINGS.)
MR. DOWNEY: I'M HONESTLY NOT CERTAIN, YOUR HONOR.
JUDGE DAVILA: I KNOW ONE DID.
MR. DOWNEY: ONE DID, YES.
MR. SCHENK: MY RECOLLECTION IS THAT SHE SAID IF IT HAD TO BE CANCELLED IT CAN BE.
JUDGE DAVILA: I SEE. THANK YOU, MR. SCHENK. I THINK SHE SAID THAT'S WHY I CAME TO SEE WHAT WAS GOING TO HAPPEN, I THINK THAT'S WHAT SHE SAID.
MR. DOWNEY: YES.
JUDGE DAVILA: RIGHT. MR. SCHENK, ANY COMMENT ON JUROR NUMBER 11?
MR. SCHENK: JUST ONE MINUTE, YOUR HONOR.
JUDGE DAVILA: SURE. PARAGRAPH.
(DISCUSSION AMONGST COUNSEL OFF THE RECORD.)
MR. SCHENK: I DON'T THINK THAT SHE SHOULD BE KICKED FOR CAUSE FOR THE VACATION.
JUDGE DAVILA: I TEND TO AGREE. I DON'T THINK THAT'S A CAUSE CHALLENGE. A HARDSHIP PERHAPS. BUT I DON'T THINK IT FALLS INTO THE CATEGORY OF A CAUSE CHALLENGE. IT'S -- I SUPPOSE IT'S IN THE DISCRETION OF THE JUDGE WHETHER THE JUDGE IS GOING TO BE KIND AND ALLOW HER TO DO THE VACATION OR WHETHER SHE CAN RESCHEDULE. SO I'M NOT GOING TO STRIKE HER FOR CAUSE.
MR. DOWNEY: WELL, YOUR HONOR, I HAD MENTIONED THE VACATIONS ONLY BECAUSE THEY WERE SUBJECT TO DISCUSSION. WE HAVE OTHER ISSUES WITH REGARD TO THIS JUROR, OTHER BASES FOR CAUSE.
JUDGE DAVILA: WELL, I SHOULD KNOW THOSE.
MR. DOWNEY: YOUR HONOR, THIS IS A JUROR WHO, INSTEAD OF LISTENING TO "BAD BLOOD," LISTENED TO A MULTI HOUR PODCAST THAT CONTAINS AUDIO INTERVIEWS WITH MANY OF THE SAME WITNESSES WHO ARE DISCUSSED DURING, YOU KNOW, THE COURSE OF THE BOOK "BAD BLOOD." IT'S GOT A SLIGHTLY DIFFERENT FOCUS, BUT IT'S FAIR TO SAY THAT IT'S HIGHLY INFLAMMATORY AND PREJUDICIAL AS TO MS. HOLMES. I THINK JUROR 11, MS. GRAY, ACKNOWLEDGED THAT DURING THE COLLOQUY ABOUT THAT EXPOSURE. I'M NOT CERTAIN THAT THERE IS ANY REAL REASON TO BELIEVE THAT SHE CAN PUT ASIDE THOSE VIEWS IN MAKING A DETERMINATION, AND I CERTAINLY THINK THAT IF WE HAVE A STANDARD WHICH IS THAT READING THE BOOK SHOULD LEAD TO DISMISSAL, I THINK CERTAINLY LISTENING TO A MULTI HOUR PODCAST SHOULD HAVE THE SAME EFFECT.
JUDGE DAVILA: MR. SCHENK?
MR. SCHENK: YOUR HONOR, I THINK THIS ONE FALLS IN THE MIDDLE. THIS IS A HARDER ONE FOR THE COURT. I THINK THE BOOK -- I DON'T WANT TO REVISIT WHAT I SAID, BUT I THINK THE COURT MADE A RIGHT RULING AGREEING WITH THE PARTIES AND RELIEVING JURORS FOR CAUSE WHO READ THE BOOK. THE DOCUMENTARIES, SOME OF THE OTHER LONG FORM, I DON'T KNOW THAT WE'RE GOING TO REACH AGREEMENT ON. I DON'T THINK THAT WATCHING ONE SEVERAL YEARS AGO WITH VERY LITTLE MEMORY OF IT IS TANTAMOUNT TO A FOR CAUSE DISMISSAL. THE PODCAST I THINK FALLS IN THE MIDDLE. ONE REASON IT FALLS IN THE MIDDLE IS BECAUSE SOMEONE DOESN'T PUT THE BOOK ON FOR YOU. YOU PICK UP THE BOOK AND READ IT. IT SHOWS SOME INTEREST ON YOUR PART. THIS JUROR SPECIFICALLY SAID HER HUSBAND PUT IT ON DURING A CAR TRIP, DURING A FAMILY DRIVE. SHE ALSO SAID SHE REMEMBERED VERY LITTLE ABOUT IT. MY RECOLLECTION IS THAT I THINK SHE SAID SHE REMEMBERED ONE INTERVIEW FROM IT.
WHAT WE NEED TO BE CONCERNED ABOUT ISN'T THAT SHE LISTENED TO THE PODCAST, IT'S DOES SHE THEY BRING IT INTO THE DELIBERATION ROOM OR THE COURTROOM EACH DAY THE BIAS THAT CAME WITH, IF WE ACCEPT THE FACT THAT BIAS CAME WITH THE PODCAST, DOES SHE BRING THAT WITH HER? WHAT WE HAVE IS A COUPLE PIECES OF EVIDENCE THAT SUGGESTS SHE WON'T. SHE WASN'T THE ONE WHO PUT IT ON, SO IT WASN'T A SUBJECT MATTER LIKE MR. RISHI. AND IT ISN'T VERY INTERESTING TO HER THAT SHE WAS CONSUMING EVERYTHING THAT SHE COULD FIND. THAT SEEMS TO BE A FACT THAT SUGGESTS THAT IT WAS MORE BACKGROUND NOISE THAN RESEARCH, THAN SOMETHING THAT SHE WAS DOING A DEEP DIVE INTO. THE SECOND PIECE OF EVIDENCE THAT WE HAVE IS SHE SAID SHE DOESN'T REMEMBER VERY MUCH FROM IT. HER MEMORY OF IT IS SIGNIFICANTLY LIMITED COMPARED TO SOMEONE WHO, LET'S SAY, PUT IT ON THEMSELVES AND WAS INTERESTED IN CONSUMING IT. HONESTLY, THOUGH, IT'S A CLOSE CAUSE. I THINK IF YOU SPEND 8 HOURS, 10 HOURS, WHATEVER IT WAS, LISTENING TO IT, I APPRECIATE THE ARGUMENT THAT MR. DOWNEY IS MAKING. IT'S SUBSTANTIVELY DIFFERENT THAN LISTENING TO "BAD BLOOD" ON TAPE? I DON'T KNOW. I GAVE YOU TWO REASONS WHY IT MIGHT BE, BUT IT'S A VERY HARD CALL.
JUDGE DAVILA: NO, NO. I APPRECIATE THAT. THANK YOU. SHE SAID IT'S NOT ON MY MIND. MY TAKE FROM HER DESCRIBING THIS, AND I FAILED TO ASK HER HOW LONG THE TRIP WAS. IT WAS A CAR TRIP. SHE SAID IT WAS -- I THINK SHE DID SAY, I THINK SHE USED THE PHRASE BACKGROUND NOISE OR IT WAS ON WHILE SHE WAS DRIVING. SHE DID REMEMBER THAT THERE WAS A NEGATIVE VIEW OF MS. HOLMES, SHE DOES REMEMBER THAT FROM IT. BUT SHE THEN SAID IT'S NOT ON MY MIND. I THINK SHE SAID THAT IN RESPONSE TO WHEN SHE DID THE QUESTIONNAIRE, IT WASN'T ON HER MIND ABOUT IT. YOU KNOW, THE THING ABOUT HAVING THE OPPORTUNITY TO ACTUALLY SEE LIVE TESTIMONY, LIVE DISCUSSION WITH THE JURORS HERE IN A LIVE SETTING ALLOWS US TO MEASURE IN GREATER DETAIL THAN ON A TRANSCRIPT THE DEMEANOR, THE INFLECTIONS, THEIR EMOTIONAL CUES THAT ARE RELEASED WHEN THEY ANSWER QUESTIONS. IT SEEMS TO ME THAT SHE WAS SAYING YES TO THE QUESTION, I REMEMBER THE QUESTION, IT WAS ON, BUT I DON'T REMEMBER MUCH ABOUT IT. BUT TO MR. SCHENK'S POINT, SHE REMEMBERED IT HAD A NEGATIVE VIEW OF MS. HOLMES. THAT PIECE STUCK. AND I APPRECIATE THAT IF THAT IS A CULMINATION OF ADDITIONAL INFORMATION THAT SHE MAY HAVE RECEIVED IN THE COURSE OF PERHAPS THIS TRIAL AND/OR, EXCUSE ME, IN THE COVERAGE OF THIS TRIAL, THAT CERTAINLY WOULD GIVE CONCERN, AND I THINK SIMILAR CONCERNS ABOUT READING THE BOOK, WHAT DOES THAT DO? SOMEBODY -- TO YOUR POINT, MR. SCHENK, SOMEBODY READ THE BOOK, THEY EITHER PURCHASED THE BOOK OR THEY SOMEHOW OBTAINED IT AND THAT WAS A VOLITIONAL ACT TO BE DISTINGUISHED FROM BEING AT THE MERCY OF YOUR HUSBAND'S DECISION TO THE RADIO, WHICH IT SOUNDS LIKE THAT'S WHAT THIS WAS. WELL, I'LL STRIKE HER FOR THAT REASON. NUMBER 14 I THINK IS YOUR NEXT?
MR. DOWNEY: IT IS, YOUR HONOR.
JUDGE DAVILA: THAT'S MR. CHUANG.
MR. DOWNEY: THAT'S MR. CHUANG WHO YOUR HONOR HAD A LONG COLLOQUY. WHEN HE WAS HERE TEN DAYS AGO, MR. CHUANG, NOTE IN HIS QUESTIONNAIRE HE MAY BE BIASSED AGAINST MS. HOLMES BECAUSE OF PRIOR KNOWLEDGE OF THIS CASE, BECAUSE OF THE -- IN CONNECTION WITH THE DOCUMENTARY. HE ALSO INDICATED HE WATCHED THE VIDEO, HE ALSO CIRCLED HAVING READ "BAD BLOOD" IN CONNECTION WITH HIS KNOWLEDGE OF THE CASE, AND THEN, OF COURSE, ACKNOWLEDGED HIS BIAS. I THINK, YOUR HONOR, WHEN HE WAS ORIGINALLY ASKED BY ME THE QUESTION OF SORT OF HIS FAIRNESS TO JUDGE SOMETHING RELATIVE TO HIS COMFORT LEVEL IF IT WERE A MATTER INVOLVING HIM OR HIS ONLY FAMILY, HE ANSWERED HE WOULDN'T BE COMFORTABLE WITH THAT. I KNOW YOUR HONOR HAD A SUBSEQUENT COLLOQUY WITH HIM, BUT I THINK THE ACKNOWLEDGEMENT THAT THE SENTIMENT IS IN HIS MIND AND IT WOULD BE DIFFICULT TO REMOVE FROM IT MEANS THAT HE IS SOMEONE WHO HAS TAKEN A REAL VIEW AWAY FROM CONSUMING THESE MATERIALS.
IT ALSO SEEMS TO BE THE CASE, ALTHOUGH WE'RE NOT QUITE SURE WHAT HE SAW OR READ, HE THINKS THAT THE VIDEO WAS A SUMMARY OF THE CONTENT IN SOME WAY OF "BAD BLOOD." SO EFFECTIVELY HE'S CONSUMING THE SAME TYPE OF CONTENT. SO I APPRECIATE YOUR HONOR'S EFFORTS TO ENGAGE IN A REHABILITATION. I DON'T THINK IT HAS CURED HIS PRIOR STATEMENT OF BIAS OR THE BIAS THAT IS INHERENT IN HAVING LOOKED AT AND RECALLED THE MATERIAL THAT HE WAS EXPOSED TO. HE HAD A PRETTY CLEAR KNOWLEDGE OF WHAT WAS SAID IN THE DOCUMENTARY. HE SAID THAT HE HEARD FROM THE DOCUMENTARY THAT MS. HOLMES KNEW THAT A NEW BLOOD TESTING METHOD WAS FRAUDULENT, BUT THAT SHE CONTINUED TO RAISE MONEY FROM INVESTORS. THAT'S ALMOST WHAT THE GOVERNMENT WOULD LIKE TO SAY IN ITS OPENING STATEMENT HERE. IT SHOWS THE ADVOCACY NATURE OF THESE PIECES THAT THESE JURORS HAVE BEEN EXPOSED TO, AND THEY RECALLED THEM. SO I THINK HE SHOULD BE, HE SHOULD BE DISMISSED FOR CAUSE, YOUR HONOR.
JUDGE DAVILA: WHAT DO WE DO WITH HIS STATEMENT WHERE HE SAID UNDER OATH, "I CAN BE FAIR"?
MR. DOWNEY: WELL, HE ALSO SAID UNDER OATH, YOUR HONOR, THAT HE WOULD NOT THINK THAT IF IT WAS A MATTER INVOLVING HIM OR HIS FAMILY THAT HE WOULD THINK THAT HE WOULD BE THE IDEAL PERSON TO SERVE AS A JUROR.
JUDGE DAVILA: I HEAR THAT QUESTION AND IN JUST ABOUT EVERY CASE AND IT'S ALWAYS A QUESTION THAT INTERESTS ME. IT'S A QUESTION THAT I THINK IS CONFUSING AND SOMETIMES UNFAIR TO SAY, WELL, IF YOU WERE ON TRIAL, WOULD YOU WANT YOU AS A JUROR? AND IT, IT -- SOMETIMES IT'S A DIFFICULT QUESTION, I THINK, FOR A LAYPERSON TO ASK. IT'S A PROBING ONE TO ASK CAN YOU BE FAIR? BUT I'M NOT SURE HE GRASPS THE TOTALITY OF THAT. I TRIED TO FOLLOW UP WITH HIM, AND I PROBABLY DIDN'T DO AS GOOD OF A JOB THAT YOU DID, MR. DOWNEY, TO ASK THE QUESTION, BECAUSE I WAS TRYING TO SEE IF HE UNDERSTOOD IT IN A WAY. ANYTHING, MR. SCHENK, ON THIS?
MR. SCHENK: YES, A COUPLE OF THINGS. ONE, IF HE READ "BAD BLOOD," HE SHOULD BE EXCUSED FOR CAUSE. HE DIDN'T SAY HE READ "BAD BLOOD" TODAY. HE CIRCLED IT AND MAYBE WE CAN ASK HIM IF HE DID. SECOND, YOUR HONOR ASKED HIM NOT JUST CAN YOU BE FAIR, BUT DO YOU HAVE CERTAINTY ABOUT YOUR ABILITY TO BE FAIR, AND HE SAID YES. HE ALSO SAID THAT HE DID NOT HAVE FRESH MEMORIES ABOUT THE DOCUMENTARY OR OTHER THINGS THAT HE CONSUMED. I THINK THAT MAKES HIM SUBSTANTIVELY DIFFERENT THAN JURORS WHO HAVE CONSUMED THE CONTENT THAT MR. DOWNEY HAS DESCRIBED AS BIASSING AND STILL REMEMBERING, AND HAVE A LOT OF FRESH MEMORIES ABOUT IT. YOUR HONOR HAD A LENGTHY DIALOGUE ABOUT HIS ABILITY TO BE FAIR, AND ON SOME OCCASIONS HE USED WORDS LIKE "I MAY" OR "I THINK," AND YOUR HONOR FOLLOWED UP ON THOSE TO SEE IF THERE WAS CERTAINTY RECOGNIZING THAT THERE MIGHT BE A HEDGE OR AN EXPRESSION OF HESITATION. AND WHAT I UNDERSTOOD MR. CHUANG TO BE SAYING IS THAT I HAVE CERTAINTY ABOUT MY ABILITY TO BE FAIR.
JUDGE DAVILA: I THINK I, AS I DID WITH SEVERAL OF THE PROSPECTIVE JURORS, I ASKED IF THEY COULD BE FAIR TO THE GOVERNMENT, POINTING TO TABLES, AND THEN POINTING TO MS. HOLMES, CAN YOU BE FAIR TO HER, AND I CAN'T REMEMBER IF MR. CHUANG WAS ONE OF THOSE, BUT I THINK HE MAY HAVE BEEN. LET'S DO THIS. LET'S ASK IF HE READ THE BOOK. AND THAT WILL GIVE US GUIDANCE.
MR. DOWNEY: YOUR HONOR, I JUST ALSO WANT TO REMIND YOU THAT YOUR HONOR ASKED HIM ESSENTIALLY THE QUESTION ABOUT WHETHER HE COULD BE FAIR REPEATEDLY, AND HE REPEATEDLY SAID BEFORE FINALLY SAYING HE COULD BE FAIR, HE REPEATEDLY SAID HE WOULD TRY.
JUDGE DAVILA: YES.
MR. DOWNEY: AND THAT'S A FINE ANSWER FOR AN INDIVIDUAL TO GIVE AND IT'S AN HONEST ANSWER, BUT IT DOESN'T QUALIFY A PERSON TO SERVE AS A JUROR. THE ISSUE IS NOT AN ISSUE ABOUT HIS FAIRNESS. WE KNOW HE HAS CONCERN ABOUT HIS FAIRNESS, AND WE KNOW WHY HE HAS THAT CONCERN. AND I THINK IN ASKING HIM ULTIMATELY WHETHER HE CAN BE FAIR OR NOT, WE'RE REALLY ASKING HIM WHETHER HE'S A FAIR PERSON AS OPPOSED TO LOOKING AT HIM AS SOMEONE WHO COMES IN WITH SUBSTANTIAL KNOWLEDGE AND IS TRYING TO BE FAIR BUT IS AFRAID THAT HE MIGHT HAVE A BIAS.
JUDGE DAVILA: WELL, I THINK THAT'S WHAT WE'VE DONE ALL DAY TODAY IS TO PROBE THE BIASES OF THE JURORS AND TO ASK THEM TO TEST THEMSELVES TO SEE IF THEY CAN BE FAIR. PEOPLE HAVE TOLD US THAT THEY HAVE BIASES AND MANY OF THEM HAVE SAID, YES, I CAN OVERCOME THEM AND HERE'S HOW I'LL DO THAT. MR. CHUANG IS ONE OF THOSE INDIVIDUALS WHO I THINK THE PAPER WORD DOESN'T REFLECT, I THINK, HIS EMOTIONAL, I'LL CALL IT, GROWTH AS A RESULT OF OUR CONVERSATIONS. MY SENSE IS THAT HE WAS A LITTLE TIMID AT FIRST AND THEN AS HIS ANSWERS BEGAN -- HE BECAME A LITTLE MORE ENGAGED WITH YOU, AND THEN WITH MR. SCHENK, AND CERTAINLY WITH THE COURT ABOUT HIS ANSWERS. IT SEEMED TO ME THAT HIS DEMEANOR, HIS MANNERISM SEEMED TO SUGGEST A GREATER COMFORT IN UNDERSTANDING THE CONCEPTS THAT WE WERE, ALL OF US WERE DISCUSSING WITH HIM. AND MAYBE THAT IS THE TRANSITION, AND MAYBE THAT'S THE FORMATION TO THE ULTIMATE ANSWER WHERE HE SAID I CAN'T BE FAIR. SO LET'S -- WE'RE GOING TO ASK HIM IF HE READ THE BOOK. LET'S MOVE TO 26.
MR. DOWNEY: 26 IS ANOTHER INDIVIDUAL WHO IS FAMILIAR WITH THERANOS FROM AN UNKNOWN NUMBER OF NEWS ARTICLES. HE IDENTIFIED THAT IN QUESTION 40 IN THE QUESTIONNAIRE. HE ALSO ACKNOWLEDGED TO WATCHING THE ABC NEWS SPECIAL PROGRAM, WHICH AGAIN WAS FULL OF PREJUDICIAL CONTENT TO MS. HOLMES. HE ACKNOWLEDGED THAT IN RESPONSE TO THE ORIGINAL ARTICLES THAT HE READ, HIS INTEREST WAS PIQUED WAS THE WORD THAT HE USED, AND THAT THIS WAS A SUBJECT MATTER THAT HE WANTED TO LEARN ABOUT. I THINK HE ACKNOWLEDGED IN DISCUSSION DURING OUR COLLOQUY THAT HE HAD SOME EXPECTATION THAT A DEFENDANT WOULD PUT ON EVIDENCE. I THINK WITH THOSE FACTORS COMBINED, I THINK IT WILL BE VERY DIFFICULT FOR HIM TO MAINTAIN HIS OBJECTIVITY. AGAIN, THIS IS AN INDIVIDUAL I THINK BEING PERFECTLY HONEST AND FORTHRIGHT AND ACKNOWLEDGING WHAT HIS MINDSET IS. HE ACKNOWLEDGED IN RESPONSE TO YOUR HONOR THAT HE UNDERSTANDS THE LEGAL CONSTRUCT THAT THE DEFENDANT DOESN'T HAVE AN OBLIGATION TO PRESENT EVIDENCE. BUT HIS MINDSET IS ONE WHERE HE'S EXPECTING THE DEFENDANT TO REBUT AND PLACING THAT BURDEN, AND HE HAS IN HIS MIND PARTICULAR ALLEGATIONS THAT THE DEFENDANT SHOULD REBUT. SO I THINK AS A RESULT OF HIS MEDIA EXPOSURE AND HIS INCLINATION IN TERMS OF HIS VIEWS OF PROCEDURE, WE WOULD ASK THAT HE BE DISMISSED FOR CAUSE.
JUDGE DAVILA: MR. SCHENK?
MR. SCHENK: A COUPLE OF POINTS. I THINK JUROR NUMBER 26 IS ROUGHLY THE THIRD OR FOURTH JUROR WE HAVE TALKED ABOUT FOR CAUSE -- I'M SORRY, IF YOU INCLUDE 31 AND 63, THE SIXTH JUROR. I THINK HE'S THE THIRD OR FOURTH OF SOUTHEAST ASIAN DESCENT. I THINK WE SHOULD MAKE A NOTE OF THAT AT THIS POINT. THIS JUROR SAID THAT VIEWING THE 20/20 EPISODE WOULD NOT IMPACT MY JUDGMENT. I THINK HE SAID THAT MS. HOLMES WAS AN INSPIRATION. I WROTE THAT DOWN. HE SAW HEADLINES. BUT WE'VE HAD OTHER JURORS WHO HAVE EXPRESSED SEEING HEADLINES WITHOUT CONSUMPTION OF THE UNDERLYING ARTICLE. THERE WAS ALSO THE DIALOGUE ABOUT A DEFENDANT'S -- ONE LAST THING ON THAT POINT. 39 AND 65 IN THE QUESTIONNAIRE HE BOTH ANSWERED NO TO. I THINK THOSE QUESTIONS ARE USEFUL IN ILLUMINATING WHETHER THE PERSON CAN BE FAIR DURING THIS TRIAL. AND THEN FINALLY, THERE WAS A DISCUSSION ABOUT DOES A DEFENDANT HAVE TO PROVE INNOCENCE AND A QUESTION ABOUT ALMOST THE WORD "SHOULD." I THINK WHAT THE JUROR WAS EXPLAINING TO US WAS THAT HE MEANT THAT THEY SHOULD HAVE THE OPPORTUNITY, NOT THE APPLICATION TO. FOR THOSE REASONS, I DON'T THINK THERE'S A NEED TO STRIKE THIS JUROR FOR CAUSE.
JUDGE DAVILA: AS TO THE LATTER POINT, THAT WAS MY UNDERSTANDING, MR. DOWNEY, WAS THAT QUESTION ABOUT PRESUMPTION OF INNOCENCE AND THAT'S WHY I PROBED IT AFTER. IT SEEMED TO ME, JUST FROM, AGAIN, LOOKING AT HIM AND LOOKING AT HIS EXPRESSIONS, THAT THE QUESTION WAS SOMETHING THAT HE DIDN'T CAPTURE FULLY WHEN I ASKED HIM AS A FOLLOWUP, AND I THINK I USED THE WORDS OBLIGATIONS AND OPPORTUNITY. AND HE SAT BACK IN HIS CHAIR AND SAID I GET IT, I UNDERSTAND THAT NOW, AND THANK YOU, AND THANKED THE COURT FOR CLEARING THAT UP. HE'S A LAYPERSON, AND WE KNOW THIS PRESUMPTION OF INNOCENCE IS A CONCEPT THAT FOLKS DON'T CARRY AROUND WITH THEM TYPICALLY. SO TO THAT POINT I DON'T THINK THAT CERTAINLY SUGGESTS THAT HE'S EXPECTING THE DEFENDANT TO PUT EVIDENCE ON. I DON'T THINK THAT BASED ON HIS DEMEANOR WHEN HE ANSWERED THE QUESTION. I THINK HE UNDERSTANDS, DIDN'T HE, THAT THEY SHOULD HAVE -- IF THEY HAVE EVIDENCE TO GO AGAINST THE ACCUSATION, THEY SHOULD BE ABLE TO PUT IT ON. THAT'S, THAT'S THE OPPORTUNITY.
I THINK THAT'S, THAT'S -- IT MAY HAVE BEEN WHAT HIS MINDSET WAS. I APPRECIATE HIS FOLLOW-UP COLLOQUY. SO I DO THINK THAT HE MISUNDERSTOOD THAT QUESTION. I AM MOVED BY THE ANSWERS TO 39, 62, AND 65. HE DID TELL US THAT HE READ -- EXCUSE ME, THAT HE SAW -- I THINK IT WAS THAT HE WATCHED "20/20." HE SAID IT WOULD NOT AFFECT HIS ABILITY TO BE FAIR. HE SAID HE CAN BE FAIR. THE QUESTIONNAIRE ASKS TWO OR THREE OTHER PLACES, IS THERE ANYTHING ELSE THAT YOU CAN THINK OF THAT WE SHOULD KNOW AS TO WHETHER OR NOT YOU CAN BE FAIR? OF COURSE HE TOLD US WHAT HE SAW. HE TOLD US IN REGARDS TO THAT IT WOULD NOT AFFECT HIS ABILITY TO BE FAIR. AND I, I, FOR ALL OF THE REASONS STATED, I BELIEVE HIM, I THINK HE WAS CANDID ABOUT HIS RESPONSE TO THAT. I DON'T THINK THERE'S SUFFICIENT EVIDENCE TO STRIKE HIM FOR CAUSE AT THIS TIME. SO I'M GOING TO OVERRULE YOUR OBJECTION AS TO HIM. 46 IS YOUR NEXT.
MR. DOWNEY: YES, YOUR HONOR, I BELIEVE THAT'S RIGHT.
JUDGE DAVILA: IT'S JUROR WONG.
MR. DOWNEY: YOUR HONOR, I JUST WANTED TO PAUSE FOR A MOMENT WITH RESPECT TO JUROR 35 WHO WAS THE JUROR THAT WE JUST HAD THE COLLOQUY WITH, AND I REALIZED THAT I HAD MISUNDERSTOOD THE ANSWER IN THE QUESTIONNAIRE. THIS IS MS. HERNANDEZ.
JUDGE DAVILA: THIS IS JUROR --
MR. DOWNEY: I BELIEVE 35, YOUR HONOR.
MR. SCHENK: NO, THAT'S 42.
JUDGE DAVILA: 42 IS MS. HERNANDEZ.
MR. DOWNEY: I BEG YOUR PARDON. I'M CONFUSING TWO JURORS. I HAD MISUNDERSTOOD HER RESPONSE IN THE QUESTIONNAIRE.
JUDGE DAVILA: MS. HERNANDEZ YOU'RE SPEAKING OF?
MR. DOWNEY: YES, MS. HERNANDEZ'S QUESTIONNAIRE RESPONSE AS BEING ABOUT LANGUAGE AND NOT ABOUT COMPREHENSION.
JUDGE DAVILA: YES.
MR. DOWNEY: I REALIZE NOW THAT SHE WAS EXPRESSING IN CONNECTION WITH THE CASE, IN CONNECTION WITH THE LEARNING DISORDER, SHE HAD A DIFFICULTY PROCESSING --
JUDGE DAVILA: A LEARNING DIFFERENCE.
MR. DOWNEY: AND I APPRECIATED THAT AS I HAVE A CHILD WHO IS SOMEONE WHO IS NEURO DIVERSE. I WONDER IF YOUR HONOR THINKS IN THIS CIRCUMSTANCE THAT THE JUROR HAVING EXPRESSED THAT CONCERN IS SOMEBODY WHO IS APPROPRIATE TO DISMISS OR NOT? I DON'T MOVE FOR CAUSE. I WAS JUST STRUCK BY THE JUROR'S STATEMENT ABOUT HER OWN INABILITY TO FOLLOW SOME ASPECTS OF THE PROCEEDING.
JUDGE DAVILA: THANK YOU. THANK YOU. I -- YOU KNOW, SHE WAS -- SHE WANTED TO SPEAK PRIVATELY. IT WAS ABOUT HER FAMILY SITUATION WITH DOMESTIC VIOLENCE. SHE SHARED THAT WITH US. I KNOW THAT WAS DIFFICULT. AND THEN IN RESPONSE TO THE QUESTIONS, I LOOKED AT HER QUESTIONNAIRE AS WE DID, AND I THINK A COUPLE OF PLACES SHE SAID I DIDN'T UNDERSTAND AND I'M NOT SURE. AND THEN SHE TOLD US SHE HAD AN IEP, AN EDUCATIONAL PLAN THAT SCHOOLS ARE OBLIGATED TO PROVIDE WHERE THEY NEED IT. I TALKED TO HER ABOUT GOING TO A CALIFORNIA DISTINGUISHED HIGH SCHOOL AND A DIPLOMA THAT SHE MATRICULATED WITH. IT SEEMED TO ME THAT HER QUESTIONNAIRE WAS NOT LIKE SOME OTHERS WHERE YOU'VE SEEN WHERE WHOLESALE PAGES WERE LEFT BLANK, IGNORED. SHE DID GIVE A GREAT EFFORT TO FILL THIS QUESTIONNAIRE. IT'S A LONG QUESTIONNAIRE. IT'S NOT AS LONG AS THE ONE YOU WANTED, MR. DOWNEY, BUT IT'S STILL LONG. AND SHE GAVE IT AN EFFORT.
I THINK IN HER RESPONSES, I THINK IT WAS -- THEY WERE VERY CANDID, AND SHE WAS TELLING US I DID THE BEST THAT I COULD. I DID NOT SEE ANY COGNITIVE DEFICIENCIES IN HER ANSWERS TO THE QUESTIONNAIRE. SHE ANSWERED AS BEST SHE COULD IN THE APPROPRIATE BOXES AND THE APPROPRIATE AREAS, AND SHE TALKED ABOUT LANGUAGE. MY SENSE IS, I DIDN'T FOLLOW UP ON THIS, BUT MY SENSE IS THAT SHE MIGHT HAVE -- SHE DID TELL US SHE SOMETIMES NEEDED TO LOOK AT THINGS. YOU PROBED ON THIS, I THINK. SHE NEEDS TO LOOK AT THINGS TWICE, MAYBE A FEW TIMES TO FOCUS AND COMPREHEND IT. AND I THINK THAT'S AN EXPRESSION OF HER CAPACITY TO UNDERSTAND THINGS. I DON'T THINK KEEPING SOMEONE LIKE THAT OFF THE JURY IS SOMETHING THAT I'D LIKE TO DO UNLESS THERE'S MORE COGNITIVE DIFFICULTIES THAN THAT. I THINK SHE HAS A RIGHT TO PARTICIPATE IN A JURY SERVICE AND THE JUSTICE SYSTEM AS WELL AS ANYBODY ELSE, AND YOU'RE NOT SAYING THIS, BUT TO EXCUSE HER BECAUSE SHE HAS AN IEP AND OTHERWISE HAS SOME OTHER FUNCTION, YOU'RE NOT SAYING THAT, BUT YOU'RE CALLING OUT AT LEAST THE OBSERVATION THAT SHE MADE.
MR. DOWNEY: I WAS CALLING OUT, YOUR HONOR, SHE HERSELF EXPRESSED SOME DIFFICULTY WITH UNDERSTANDING QUESTIONS IN THE QUESTIONNAIRE, AND SHE EXPLAINED THAT. MY JUDGMENT IS NOT DIFFERENT FROM YOUR HONOR'S IN TERMS OF EVALUATING HER. I JUST WANTED TO HAVE A DISCUSSION ABOUT IT TO MAKE SURE BECAUSE I HAD ACTUALLY NOT ADDRESSED IT IN DETAIL WITH HER, AND I DIDN'T THINK SHE HAD SOME OBLIGATION TO DO SO. SO I THINK WE'RE OF ONE MIND WITH RESPECT TO HER.
JUDGE DAVILA: THANK YOU. SHE'S A WOMAN. SHE APPEARS TO BE LATINA AND SHE JUST GRADUATED. SHE'S 19. SO THIS IS A NEW EXPERIENCE FOR HER, RIGHT? I DON'T KNOW WHEN -- HOW YOUNG YOU WERE WHEN YOU HAD YOUR FIRST JURY SERVICE.
JUDGE DAVILA: OKAY. 46. WERE WE TALKING ABOUT -- THAT WAS MR. WONG, I BELIEVE. HE TALKED ABOUT SEEING THINGS. HE WAS -- IT SOUNDED LIKE HE WAS REALLY INTERESTED IN THE INVESTMENT PART OF THE CONVERSATION.
MR. DOWNEY: WELL, YOUR HONOR, I THINK WHEN HE WAS ASKED WHAT DID HE KNOW ABOUT MS. HOLMES IN QUESTION 40 ON THE QUESTIONNAIRE HE SAID CEO OF THERANOS PUSHED PRODUCT ON THE MARKET BEFORE IT'S PROVEN EFFECTIVE. I THINK ON 41 HE WAS ASKED ABOUT MR. BALWANI AND HE REFLECTED THAT HE WAS AWARE OF A ROMANTIC RELATIONSHIP WITH MS. HOLMES AND BOTH CONSPIRED TO DEFRAUD INVESTORS, AND I THINK HE EXPRESSED SOME SKEPTICISM ABOUT THE MANNER IN WHICH THE BUSINESS OF THERANOS EVOLVED. HE INDICATED THAT HE HAD SEEN OTHER SUCH CIRCUMSTANCES AND THAT THEY HAVE GIVEN RISE TO SOME CONCERN ON HIS PART IN THE PAST. SO I THINK THIS IS AN INDIVIDUAL WHO IS, AGAIN, IS BEING HONEST AND CANDID IN DISCUSSING THESE THINGS, BUT IS ACKNOWLEDGING, YOU KNOW, BELIEFS AND VIEWS ABOUT THE MATTERS THAT ARE VERY MUCH IN DISPUTE IN THE CASE.
JUDGE DAVILA: MR. SCHENK?
MR. SCHENK: YOUR HONOR, TO QUESTIONS 39 AND 65, THIS JUROR RESPONDED NO IN THE QUESTIONNAIRE. TO YOUR HONOR TODAY WHEN ASKED ABOUT HIS PRIOR EXPOSURE TO "60 MINUTES" OR CONVERSATIONS WITH FRIENDS, I THINK HE SAID THAT HE TALKED TO FRIENDS WHO KNEW MORE THAN HE DID ABOUT THIS CASE. IF THAT WOULD AFFECT HIS ABILITY TO BE FAIR, HE AGAIN SAID NO. SO WE HAVE IT IN THE QUESTIONNAIRE AND THEN WE HAVE IT IN COURT TODAY. WHEN ASKED AT THE VERY END WHAT -- HE SAID SOMETHING LIKE I'M GLAD I DIDN'T INVEST IN THERANOS, AND I THINK THAT'S WHAT YOUR HONOR WAS GETTING AT WITH HIS FOCUS ON THE INVESTMENT SIDE OF THINGS. THERE'S NO QUESTION THAT HE HAS KNOWLEDGE ABOUT THE CASE. THAT'S NOT SOMETHING THAT IS DISQUALIFYING. IT'S BRINGING THAT KNOWLEDGE IN THE FORM OF BIAS INTO THE COURTROOM OR INTO THE DELIBERATION ROOM, AND IT'S AT THAT STAGE WHERE HIS ANSWERS SUGGEST HE SHOULD NOT BE STRUCK FOR CAUSE.
MR. DOWNEY: YOUR HONOR, HE HAS A VIEW ABOUT MS. HOLMES AS EXPRESSED IN THE QUESTIONNAIRE, AND HE HAS A VIEW ABOUT THERANOS AND COMPANIES LIKE THERANOS. HE'S DISCUSSED IT EXTENSIVELY WITH OTHER PARTIES.
JUDGE DAVILA: I DON'T THINK HE TOLD US EXTENSIVELY, MR. DOWNEY. I THINK HE SAID FRIENDS SAW IT. I THINK I'M RIGHT ABOUT THAT. HE SAYS FRIENDS SAW IT. BUT HIS QUESTIONNAIRE SUGGESTS THAT HE MAY HAVE SEEN IT. HE TALKED ABOUT FRIENDS SEEING IT, THEY TALKED ABOUT IT. I THINK YOU FOLLOWED UP, AND MAYBE MR. SCHENK DID, ABOUT THE CONVERSATION AND HE SAID IT WAS MORE ON THE INVESTMENTS TALKING ABOUT A LOT OF PEOPLE WHO LOST MONEY. I UNDERSTAND THAT MAY BE THE EVIDENCE IN THIS CASE AND PART OF THE PROOF OF THIS CASE. I THINK HE SAID HE DID NOT EXPRESS HIS OPINION ABOUT THE COMPANY. HIS OPINION WAS THAT I'M GLAD I DIDN'T INVEST IN IT, AND I THINK HIS ANSWER TO YOUR QUESTION PERHAPS WAS, I HAVE NO OPINION ON MS. HOLMES AS SHE SITS HERE TODAY. THAT TELLS ME HE'S A CLEAN SLATE, ALBEIT HE HAS EXPOSURE TO SOME OF THIS OTHER MATERIAL LIKE MANY FOLKS TOLD US ABOUT. WE SPENT THE BETTER PART OF THE MORNING TALKING ABOUT HEADLINES THAT PEOPLE SAW AND STORIES THAT THEY READ AND WHAT THAT MEANT TO HIM. MY SENSE FROM HIM, AND I STARTED THE CONVERSATION OFF OBSERVING THAT HE WAS LOOKING AT THIS AS AN INVESTMENT OPPORTUNITY, AND THAT SEEMS TO BE THE TOTALITY OF HIS, OR THE MAJORITY, I SHOULD SAY, OF HIS CONVERSATIONS WITH FRIENDS. FRIENDS SAW IT I THINK IS WHAT HE TOLD US. I THINK HE SAID THAT IN HIS QUESTIONNAIRE. ALTHOUGH I HAVE A NOTE THAT SAYS THAT HE READ SOMETHING, AND I'M NOT CERTAIN. QUESTION 38, MAYBE YOU HAVE YOUR QUESTIONNAIRES WITH YOU. HIS RESPONSE TO QUESTION 38, WAS IT READ? I DON'T HAVE IT AT MY FINGERTIPS.
MR. DOWNEY: HE SAID THAT HE HAD PERHAPS WATCHED THE "60 MINUTES" EPISODE, AND HE DESCRIBED WITH PARTICULARITY THE ALLEGATIONS OF -- NOT ALLEGATIONS OF THIS CASE, NOT ARISING FROM THIS CASE, BUT JUST DESCRIBING THE FACTS OF THE CASE AS BEING THAT MS. HOLMES AND MR. BALWANI CONSPIRED TO DEFRAUD INVESTORS.
JUDGE DAVILA: SO HE USED THE WORD "CONSPIRED"?
MR. DOWNEY: HE USED THE WORD "CONSPIRED."
JUDGE DAVILA: IN HIS ANSWER TO 38?
MR. SCHENK: ARE WE TALKING ABOUT JUROR 46?
JUDGE DAVILA: 46.
MR. DOWNEY: QUESTION 38 HE CHECKS YES, AND HE WROTE READ ARTICLES.
JUDGE DAVILA: THAT'S WHAT IT WAS.
MR. DOWNEY: I'M SORRY, YOUR HONOR. I HAVE HIM AS IN 37 -- I BEG YOUR PARDON.
JUDGE DAVILA: I DON'T REMEMBER HIM USING THE WORDS THAT I --
MR. DOWNEY: YEAH, 40 AND 41 ARE THE ANSWERS I'M REFERRING TO. I DON'T KNOW ABOUT "60 MINUTES." I THOUGHT --
JUDGE DAVILA: THIS IS JUROR NUMBER 46; IS THAT RIGHT?
MR. SCHENK: TO QUESTION 41, JUROR 46, THE QUESTION IS, DO YOU HAVE FAMILIARITY WITH OR HAVE YOU HEARD ABOUT THERANOS, MR. RAMESH "SUNNY" BALWANI, OR THIS CASE? AND HE CHECKS YES, ROMANTIC RELATIONSHIP WITH MS. HOLMES, AND BOTH CONSPIRED TO DEFRAUD INVESTORS.
MR. DOWNEY: YES. AND THAT'S WHAT I READ A MOMENT AGO, AND I ALSO READ THE ANSWER TO NUMBER 40, DO YOU KNOW OR HAVE YOU HEARD OF THE DEFENDANT, MS. HOLMES? HE SAID CEO OF THERANOS, PUSHED PRODUCT ON MARKET BEFORE IT'S PROVEN EFFECTIVE. I APPRECIATE THAT HE'S SAYING THAT HE HAS NO OPINION AS HE SITS HERE TODAY, BUT TEN DAYS AGO THAT'S HOW HE DESCRIBED THE SITUATION. WHAT I WAS UNCERTAIN OF, YOUR HONOR, AND WHAT I THOUGHT YOUR HONOR WAS ASKING ABOUT WAS WHETHER HE HAD CONSUMED SOME OF THE LONGER FORM DOCUMENTARIES. I HAVE TO SAY I DON'T HAVE THE FULL QUESTIONNAIRE WITH ME, BUT I THOUGHT THAT HE HAD READ "60 MINUTES" SOMEWHERE IN THE -- YEAH, WATCHED THE "60 MINUTES" SEGMENT. MR. SCHENK DID NOT -- IS THAT WHAT YOU WERE REFERRING TO? I THOUGHT YOU HAD SAID THAT HE HAD CIRCLED READING ARTICLES. HE CIRCLED, IN 37, HAVE YOU READ, WATCHED, LISTENED TO, OR HAVE BEEN TOLD OF THE FOLLOWING? PLEASE CIRCLE. HE CIRCLED THE "60 MINUTES" EPISODE, AND THEN HE WROTE, WATCHED THE "60 MINUTES" SEGMENT.
JUDGE DAVILA: MR. SCHENK, ANYTHING FURTHER?
MR. SCHENK: NO, YOUR HONOR. THE SAME COMMENTS I MADE BEFORE. QUESTIONS 39, 65, I THINK HE DREW A DISTINCTION BETWEEN INFORMATION THAT HE WAS AWARE OF AND BIASES THAT HE BRINGS WITH HIM TO THE TRIAL.
JUDGE DAVILA: ANYTHING FURTHER ON HIM?
MR. DOWNEY: YOUR HONOR, I DON'T HAVE ANYTHING FURTHER WITH RESPECT TO 46.
JUDGE DAVILA: WELL, I'M -- THANK YOU FOR POINTING OUT THE ANSWERS TO QUESTIONS 40 AND 41. I DON'T HAVE THOSE REFLECTED ON MY NOTES. I DO HAVE 40. BUT WHAT I SUPPOSE STICKS OUT TO ME IS THE ANSWERS TO QUESTIONS 39, 62, AND 65 WHERE HE SAYS HE CAN BE FAIR. OF COURSE, TO YOUR POINT, THAT WAS AT THE TIME OF THE QUESTIONNAIRE. WHEN IS HE BEING EVALUATED FOR JURY SERVICE, TEN DAYS AGO OR TODAY? AND TODAY HE SAYS, I HAVE NO OPINION ON HER AS I SIT HERE TODAY. DOES THAT CARRY ANY WEIGHT TO YOU, MR. DOWNEY?
MR. DOWNEY: YOUR HONOR, I CERTAINLY BELIEVE THAT HE'S MAKING EFFECTIVELY THE SAME STATEMENT AS MANY OTHER JURORS. HE'S TRYING TO BE FAIR AND TRYING TO IMPOSE, YOU KNOW, THE -- OR INDICATE THAT HE'D COMPLY WITH THE INSTRUCTIONS. I JUST THINK IT'S VERY DIFFICULT IN LIGHT OF, OF THE VIEWS THAT HE HELD AS A RESULT OF WATCHING MEDIA, TALKING WITH FRIENDS ABOUT THE THINGS THAT HE HAD SEEN IN MEDIA, BASED ON HIS VIEW OF THERANOS, YOU KNOW, NOT BEING A UNIQUE COMPANY, BUT ACTUALLY BE A CLASS OF COMPANIES THAT HAVE THE SAME PROBLEM WHICH HE DESCRIBED IN COURT TODAY I THINK IN SOME DETAIL. PERHAPS HE DIDN'T USE THE WORD EXTENSIVELY, BUT I THOUGHT HE SAID THAT HIS FRIENDS WERE ALWAYS TALKING. I THINK IT'S A SUBJECT ON WHICH I HAVE NO CRITICISM OF THE MAN. I JUST THINK HE IS SOMEONE WHO HAS FORMED VIEWS BASED ON WHAT HE HAS BEEN EXPOSED TO. AND I THINK HE UNDERSTANDS THE INDUSTRY SOMEWHAT AND I THINK IT'S LED HIM TO VIEW THIS WITHIN A PARTICULAR PATTERN THAT HE'S FAMILIAR WITH.
JUDGE DAVILA: ALL RIGHT. THANK YOU. LET'S TALK ABOUT 49, MR. BURGE. THAT'S YOUR NEXT ONE, I BELIEVE. HE COMMENTED ON SOCIAL MEDIA.
MR. DOWNEY: YEAH, HE COMMENTED ABOUT MS. HOLMES BEING A FRAUD ON SOCIAL MEDIA AND THAT SHE IS A DISAPPOINTMENT TO HIM, AND I CAN TALK MORE EXTENSIVELY ABOUT HIS SOCIAL MEDIA. I THINK HE HAD A SIGNIFICANT HARDSHIP ISSUE. AS I UNDERSTAND IT, HE WAS A PRIMARY, IF NOT THE SOLE, BUT A PRIMARY CARETAKER IN CONNECTION WITH HIS FATHER, I BELIEVE IT WAS.
MS. TREFZ: HIS MOTHER.
JUDGE DAVILA: I BELIEVE IT WAS HIS MOTHER HAD ALZHEIMER'S. HE MOVED IN WITH HIS PARENTS WITH HIS SON AND HE'S WORKING FROM HOME NOW, BUT THAT THE SON OFFERED SOME ASSISTANCE TO THE MOTHER. I DON'T THINK, AS TO QUESTION 1, YOU HAVE IT IN FRONT OF YOU, DID HE INDICATE -- QUESTION 1 I THINK ASKS, IS THERE ANY REASON YOU CAN'T SERVE HERE, AND WHAT WAS HIS RESPONSE TO QUESTION 1?
MR. SCHENK: YES. I HAVE TWO CHILDREN THAT WILL NEED TO BE SHUTTLED BACK AND FORTH TO SCHOOL AND LOOKED AFTER.
JUDGE DAVILA: HE DIDN'T SAY ANYTHING ABOUT HIS PARENT.
MS. TREFZ: DID HE SAY IT LATER? I THINK HE SAID IT LATER IN THE QUESTIONNAIRE. I APOLOGIZE. I DON'T HAVE IT. IN QUESTION 8, IS THERE ANYTHING ELSE GOING ON IN YOUR LIFE? HE SAID, YES, I LOOK AFTER MY PARENTS DAILY IN ADDITION TO CHILD CARE.
JUDGE DAVILA: MR. SCHENK, DO YOU WANT TO BE HEARD ON THIS?
MR. SCHENK: MAYBE I'LL START WITH A QUESTION. DID HE ASK TO BE EXCUSED FOR -- I KNOW HE DIDN'T SAY THE WORD "HARDSHIP," BUT BECAUSE OF HIS PARENTS? I KNOW HE TALKED ABOUT THE VACATION. IT'S BEEN A LONG TIME SINCE HE'S GOTTEN TO TAKE A VACATION. I DON'T REMEMBER ASKING HIM --
JUDGE DAVILA: I DON'T THINK HE DID. I DON'T HAVE A RECOLLECTION. I DON'T HAVE IT IN MY NOTES THAT HE ASKED TO BE EXCUSED. I DON'T THINK HE DID. I DID NOTE HIS QUESTIONNAIRE IN MY NOTES, AND I REMEMBER IT JUST BECAUSE OF THE -- I DON'T THINK HE TOLD US IN THE QUESTIONNAIRE THAT HIS MOTHER HAD ALZHEIMER'S, BUT HE DID MENTION CARE.
MR. SCHENK: THEN THE GOVERNMENT'S VIEW IS THAT HE SHOULD NOT BE EXCUSED, AT LEAST YET, FOR CAUSE OR HARDSHIP FOR CARE FOR PARENTS. I DON'T THINK HE'S ASKED FOR THAT.
MR. DOWNEY: YOUR HONOR, I THOUGHT WHEN I HAD ASKED HIM WHETHER THERE WAS ANY HARDSHIP, THIS IS WHAT HE HAD MENTIONED. BUT I CAN'T SAY I RECALL THE PRECISE STATEMENT, BUT I THOUGHT IF HE DIDN'T ASK IN CONNECTION WITH THE QUESTIONNAIRE THAT HE DID, BUT I MAY BE MISTAKEN ABOUT THAT. I THINK THERE ARE OTHER ISSUES WITH REGARD TO THE JUROR ALSO WHICH I CAN DISCUSS WITH YOUR HONOR, BUT I THOUGHT THIS WAS A FAIRLY SYMPATHETIC HARDSHIP CASE.
JUDGE DAVILA: WELL, IT IS. THE FACTS THAT HE'S TOLD US ABOUT HIS MOTHER HAVING ALZHEIMER'S AND LIVING AT THE HOUSE AND HE TALKED ABOUT THERE LIVING WITH HIS SON. HE JUST SET THE TABLE, BUT HE DIDN'T MAKE THE REQUEST, DID HE? THAT'S -- HE TOLD US ABOUT THE CHALLENGES THAT HE FACES, AND PERHAPS HE WAS LOOKING TO THE COURT TO PUT THAT ALL TOGETHER ON MY OWN AND SAY HE SHOULD BE TAKING CARE OF HIS MOTHER NOW THAT HIS SON WAS BACK IN. I THINK HE SAID HE IS THE PRINCIPAL CARETAKER FOR BOTH OF HIS PARENTS. ALL RIGHT. WELL, LET'S -- I'LL RELEASE HIM. WE'LL STRIKE HIM NOT FOR CAUSE BUT FOR HARDSHIP TO CARE FOR HIS PARENTS. 94 -- EXCUSE ME. 81 IS NEXT. THIS IS GOMEZ-MUNO. WE REALLY DIDN'T TALK TO HER. SHE STOOD UP ON HER OWN AND SAID I HAVE A PROBLEM, I JUST WANT TO TALK ABOUT ENGLISH. AND THEN I THINK YOU ASKED HER, MR. DOWNEY, I DON'T KNOW IF THIS IS YOUR OBJECTION OR NOT, LANGUAGE, SHE SAID I HAVE NO PROBLEM HEARING. I CAN FOLLOW TODAY.
MR. DOWNEY: YOUR HONOR, I THINK THE QUESTION WITH REGARD TO MS. GOMEZ IS, FRANKLY, A CLOSE CALL. I THINK SHE INDICATED, YOU KNOW, TO MY SATISFACTION THAT NOTHING HAD HAPPENED YET AS OF TODAY THAT WAS SOMETHING THAT SHE FELT SHE COULDN'T UNDERSTAND. SHE DID EXPRESS, THOUGH, SOME CONCERN ABOUT SOME COMPREHENSION BECAUSE ENGLISH IS HER SECOND LANGUAGE, AND SHE TOLD US IN THE QUESTIONNAIRE THAT SHE WAS AFRAID THAT SHE WOULDN'T UNDERSTAND EVERYTHING ABOUT THE CASE BECAUSE ENGLISH IS MY SECOND LANGUAGE, SO MY OPINION, SHE SAYS, COULD NOT BE THE CORRECT ONE. THAT'S A DIFFICULT JUROR FOR US NOT TO ASK TO BE EXCUSED BECAUSE, YOU KNOW, THIS WILL BE A LONG TRIAL AND THERE MAY BE, YOU KNOW, PRESENTATION ON SOME COMPLEX ISSUES. SO FROM MY PERSPECTIVE, I THINK THE LANGUAGE CHALLENGES MAY BE A BASIS AND SUGGEST THAT THIS WOMAN SHOULD NOT SERVE AS A JUROR IN THIS CASE, WHICH HAS A LOT OF COMPLEX DOCUMENTS AND TERMINOLOGY AND SO FORTH.
JUDGE DAVILA: OKAY.
MR. SCHENK: I DON'T THINK THERE'S A BASIS FOR IT YET. SHE SAID THAT TODAY HAS BEEN OKAY. SHE HAS BEEN ABLE TO FOLLOW THINGS. IF THERE'S ENOUGH IN THE QUESTIONNAIRE TO JUSTIFY FURTHER QUESTIONING, I CERTAINLY WOULDN'T OBJECT TO DOING THAT. BUT I DON'T THINK THERE'S A BASIS TO EXCLUDE HER FROM JURY SERVICE AT THIS STAGE.
JUDGE DAVILA: I, I WAS TAKEN BY HER WANTING TO AT LEAST LET US KNOW ABOUT A LANGUAGE ISSUE. AND SHE'S SEATED IN THE BACK, ISN'T SHE? SHE'S ABOUT FOUR ROWS DEEP IN THE BACK. I'M SURE IT'S DIFFICULT TO LISTEN FOR SOMEONE WHOSE FIRST LANGUAGE IS NOT ENGLISH THERE. BUT SHE DID, WHEN PROBED -- AND I'M GLAD YOU ASKED THE QUESTION, DID YOU HAVE ANY DIFFICULTY TODAY? HAVE YOU HEARD EVERYTHING TODAY? AGAIN, THE RECORD DOESN'T REFLECT HER -- SHE SAID, OH, YES, WITH THIS KIND OF VOICE, HER VOICE WAS RAISED AND WITH ENTHUSIASM. YES, TODAY? NO, NOT A PROBLEM. SO THAT WAS REASSURING TO ME THAT SHE WAS FOLLOWING THINGS. I UNDERSTAND THAT THE INFORMATION, THE EVIDENCE IN THE TRIAL MIGHT BE COMPLICATED. IT COULD BE COMPLICATED FOR ANY LAYPERSON, AND THAT'S THE TASK OF LAWYERS TO MAKE IT ACCESSIBLE TO EVERYONE. SO I'M NOT GOING TO STRIKE HER FOR LANGUAGE. I DON'T THINK IT RISES TO THAT LEVEL, SO I'LL OVERRULE THAT OBJECTION AS TO HER. AND THEN 94, I BELIEVE, IS YOUR NEXT ONE.
MR. DOWNEY: YOUR HONOR, CAN I JUST TAKE ONE MOMENT?
JUDGE DAVILA: YES. I THINK 94 IS MR. LEE; IS THAT RIGHT?
MS. TREFZ: YES.
MR. SCHENK: YES.
(DISCUSSION AMONGST COUNSEL OFF THE RECORD.)
MR. DOWNEY: YOUR HONOR, I THINK THAT MR. SCHENK HAD PREVIOUSLY SUGGESTED THAT THOSE JURORS WHO HAVE READ "BAD BLOOD" SHOULD BE DISMISSED. JUROR 90 HAD INDICATED THAT SHE HAD READ --
JUDGE DAVILA: CAN WE DO 94?
MR. DOWNEY: YEAH, I HADN'T MENTIONED 90.
JUDGE DAVILA: RIGHT. HE LOST HIS JOB, MR. LEE DID, AT TWO COMPANIES. HE'S BIASED VERSUS CEO'S. I THINK THAT'S WHAT HE TALKED ABOUT.
MR. DOWNEY: YOUR HONOR, I THINK HE EXPRESSED BOTH TODAY AND IN RESPONSE TO QUESTION 54 ON THE QUESTIONNAIRE THAT HE HAS A BIAS AGAINST CERTAIN POSITIONS IN BUSINESS, INDIVIDUALS LIKE CEO'S OR MANAGEMENT. HE ALSO INDICATED THAT IF HIGH LEVEL MANAGEMENT WAS A PARTY THAT WAS CHARGED IN RESPONSE -- THAT THEY WERE PROBABLY GUILTY IN RESPONSE TO QUESTION 57. SO I THINK THAT IS NOT AN APPROPRIATE JUROR TO SIT IN THIS CASE.
JUDGE DAVILA: MR. SCHENK?
MR. SCHENK: WE AGREE.
JUDGE DAVILA: ALL RIGHT. WE'LL STRIKE 94. 94 WILL BE STRICKEN FOR CAUSE. LET'S MOVE TO 95 WHILE WE'RE HERE. THAT'S MR. KRAY. YOU ASKED HIM ABOUT A QUESTION AND HE SAID PROBABLY GUILTY.
MR. DOWNEY: HE DID, YOUR HONOR. I THINK HE EXPRESSED A BELIEF BEFORE THE CASE BEGAN AS TO THE APPROPRIATE OUTCOME. HE SAID HE WAS NOT GOING TO CHANGE THAT VIEW IN RESPONSE TO HIS COLLOQUY WITH BOTH -- CERTAINLY WITH ME, AND I THINK PERHAPS THE COURT. SO I DON'T THINK HE SHOULD SERVE. HE ALSO INDICATED ON THE QUESTIONNAIRE THAT THE DEFENDANTS WHO ARE CHARGED ARE PROBABLY GUILTY, AND HE AFFIRMED THAT VIEW TODAY. I ALSO NOTED THAT AND DIDN'T INQUIRE AS TO WHAT THE RELIGIOUS HOLIDAYS WERE OR WHAT THE -- BUT HE DID NOTE THAT HE REFLECTED THAT HE HAD A SCHEDULE THAT WILL WOULD BE SOMEWHAT DISRUPTIVE TO THE TRIAL SCHEDULE.
JUDGE DAVILA: HE SAID HE COULD NOT COME ON THOSE DAYS. HE WAS VERY AFFIRMATIVE ABOUT THAT. I'LL JUST TELL YOU THAT MS. KRATZMANN INFORMED ME IN THE HALLWAY AS I WAS WALKING IN, I THINK WAS THIS THE JUROR, MS. KRATZMANN, THAT YOU HAD A CONVERSATION WITH HIM ABOUT HIS HAT?
COURT CLERK: YES, YOUR HONOR.
JUDGE DAVILA: MS. KRATZMANN INFORMED ME THAT THERE WAS A JUROR, A PROSPECTIVE JUROR WHO WAS WEARING A BASEBALL CAP. SHE ASKED HIM TO TAKE IT OFF AND HE TOLD HER HE WEARS IT FOR RELIGIOUS REASONS, AND HE TURNED IT AROUND SO THE BRIM IS IN THE BACK AND THAT'S HOW HE APPEARS IN COURT NOW WITH THE REVERSE CAP. MR. SCHENK?
MR. SCHENK: WE DON'T HAVE AN OBJECTION TO RELEASING HIM FOR THE SCHEDULING CONFLICTS THAT HIS RELIGIOUS OBSERVATION WOULD PRESENT.
JUDGE DAVILA: ALL RIGHT. WE'LL RELEASE MR. KRAY, JUROR NUMBER 95. AND THEN 90, I THINK YOU'RE SUGGESTING THAT 90 READ THE BOOK.
MR. DOWNEY: SHE READ IT IN PART. THIS IS WHAT SHE --
JUDGE DAVILA: OH, SHE DID.
MR. DOWNEY: IN THE QUESTIONNAIRE NUMBER 37.
JUDGE DAVILA: SO WE SHOULD EXCUSE HER FOR HALF OF THE TRIAL.
(LAUGHTER.)
MR. DOWNEY: PERHAPS SHE ALREADY KNOWS.
JUDGE DAVILA: YOU CAN PICK WHAT HALF YOU WOULD LIKE HER TO SIT IN. MR. SCHENK?
MR. SCHENK: I HATE TO BE DIFFICULT. WE'RE ALREADY ASKING JUROR 26 -- I'M SORRY, JUROR 14 IF HE READ THE BOOK. CAN WE ASK JUROR 90 ABOUT THE AMOUNT OF CONSUMPTION?
JUDGE DAVILA: SURE. YES, I THINK WE CAN DO THAT.
COURT CLERK: YOUR HONOR, CAN I GET CLARIFICATION ON 95? IS THAT EXCUSED FOR CAUSE OR HARDSHIP?
JUDGE DAVILA: HARDSHIP. AND I THINK THAT LEAVES JUST MR. WONG AS PENDING. DID WE GET RESOLUTION ON JUROR 14?
MR. SCHENK: I THINK WE NEED TO BRING 14 BACK, BUT I DON'T THINK YOUR HONOR RULED ON JUROR 46.
JUDGE DAVILA: THAT'S MR. WONG; IS THAT RIGHT? I THINK THAT'S CORRECT.
MR. SCHENK: THAT'S CORRECT.
MS. TREFZ: YES.
JUDGE DAVILA: OKAY. WELL, LET'S -- MR. WONG IS PENDING. WHAT I'D LIKE TO DO IS TO GO OUT AND LET'S HAVE A CONVERSATION WITH MR. CHUANG AS TO WHETHER HE READ THE BOOK, AND THEN THE JUROR WE WERE JUST TALKING ABOUT --
MS. TREFZ: 90.
JUDGE DAVILA: THANK YOU. YES. THANK YOU. AND THEN WE'RE CLOSE TO ENDING OUR DAY TODAY. TOMORROW WE HAVE HOW MANY JURORS COMING IN, MS. KRATZMANN?
COURT CLERK: 46.
JUDGE DAVILA: OKAY.
MR. SCHENK: HOW MANY ARE ACTUALLY GOING TO COME IN?
COURT CLERK: WE'LL HAVE TO FLIP A COIN ON THAT ONE.
JUDGE DAVILA: ANYTHING FURTHER BEFORE WE GO OUT?
MR. SCHENK: NO, THANK YOU.
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: WHEN WE GET THE ANSWERS TO THE QUESTIONS OF READING THE BOOK, I'LL JUST ASK YOU TO MAKE YOUR COMMENTS IN COURT. WE DON'T HAVE TO COME BACK HERE. ALL RIGHT. THANK YOU.
(END OF DISCUSSION AT SIDE-BAR.)
JUDGE DAVILA: THANK YOU. WE'RE BACK ON THE RECORD. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. THANK YOU FOR YOUR PATIENCE AGAIN, LADIES AND GENTLEMEN. I DID WANT TO FOLLOW UP WITH A COUPLE OF JURORS, AND LET'S SEE. JUROR NUMBER 90. THAT'S MS. RAMER. YES, WHY DON'T YOU COME FORWARD, MS. RAMER. I JUST HAVE A QUESTION ABOUT -- I THINK YOU HAD SAID IN YOUR QUESTIONNAIRE THAT YOU HAD READ A BOOK.
JUROR: I READ THE BEGINNING PART OF "BAD BLOOD."
JUDGE DAVILA: OKAY. AND HOW, HOW FAR DID YOU GET IN THE BOOK?
JUROR: MAYBE A CHAPTER.
JUDGE DAVILA: OH, ONE CHAPTER?
JUROR: YEAH.
JUDGE DAVILA: OH, OKAY.
JUROR: I DIDN'T LIKE THE STYLE, SO I JUST STOPPED READING.
JUDGE DAVILA: OKAY. DID YOU READ -- I'M SORRY TO DRILL DOWN ON THIS, BUT DID YOU READ THE ENTIRETY OF THE CHAPTER, OR DID YOU SKIM THE CHAPTER? DID YOU FINISH THE COMPLETE CHAPTER?
JUROR: I'M NOT SURE. IT WAS A LONG TIME AGO. I STARTED READING IT. IT DIDN'T APPEAL TO ME. I STOPPED.
JUDGE DAVILA: OKAY.
JUROR: MY GUESS IS A CHAPTER.
JUDGE DAVILA: YOU'RE QUITE CONFIDENT THAT YOU NEVER GOT TO CHAPTER 2?
JUROR: PRETTY CONFIDENT, YEAH.
JUDGE DAVILA: OKAY. ALL RIGHT. THANK YOU. IS THERE ANYTHING ABOUT CHAPTER 1 OR ANYTHING THAT YOU'VE READ, THE DUST COVER, ANYTHING ABOUT THAT BOOK, DID YOU READ IT ONLINE OR DID YOU READ A HARD COPY?
JUROR: NO, A FRIEND GAVE ME A COPY OF IT.
JUDGE DAVILA: A FRIEND GAVE YOU A COPY. A HARD COPY?
JUROR: YES.
JUDGE DAVILA: AND THEN YOU GOT A CHAPTER IN AND THEN YOU STOPPED?
JUROR: YES.
JUDGE DAVILA: DID YOU RETURN THE BOOK TO THE FRIEND?
JUROR: NO. IT'S STILL -- IT'S PACKED. I RECENTLY MOVED. IT'S BACKED IN A BOX WITH ALL OF THE REST OF MY BOOKS.
JUDGE DAVILA: I SEE. YOU HAVE NO ACCESS TO IT?
JUROR: I MEAN, I COULD GET TO IT IF I NEEDED TO, BUT IT WOULD INVOLVE UNPACKING AN AWFUL LOT OF BOXES OF BOOKS.
JUDGE DAVILA: ALL RIGHT. THANK YOU. MR. SCHENK, ANY QUESTIONS?
MR. SCHENK: NO, YOUR HONOR.
MR. DOWNEY: MS. RAMER, HAVE YOU READ OR WATCHED ANYTHING THAT WOULD SUMMARIZE THE BOOK IN ANY WAY?
JUROR: I DON'T BELIEVE SO.
JUDGE DAVILA: NOTHING THAT COMES TO YOUR MIND TODAY THAT YOU HAVE SEEN, A VIDEO OR SUMMARY?
JUROR: ABOUT THE CONTENTS OF THAT BOOK?
JUDGE DAVILA: YES.
JUROR: NO.
JUDGE DAVILA: ANYTHING FURTHER?
MR. DOWNEY: NOTHING FURTHER.
MR. SCHENK: NO, YOUR HONOR.
JUDGE DAVILA: THANK YOU, MS. RAMER. AND LET ME TURN TO JUROR 14, PLEASE. AND THAT'S MR. CHUANG. YES, I HAVE THE SAME QUESTION ABOUT THE BOOK. DID YOU READ THE BOOK, SIR?
JUROR: NO, NOT THE BOOK. I THINK IT'S JUST --
JUDGE DAVILA: I'M GOING TO -- YES, WHY DON'T YOU WALK TO THE MICROPHONE. THAT'S PROBABLY BEST.
JUROR: NO. JUST THE DOCUMENTARY, NOT THE BOOK.
JUDGE DAVILA: YOU DIDN'T READ THE BOOK AT ALL?
JUROR: NO, I DIDN'T READ THE BOOK.
JUDGE DAVILA: ALL RIGHT. ANY QUESTIONS, MR. SCHENK?
MR. SCHENK: NO. THANK YOU.
JUDGE DAVILA: MR. DOWNEY?
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: THANK YOU. YOU CAN HAVE A SEAT. MR. DOWNEY, AS TO NUMBER 90?
MR. DOWNEY: NO MOTION, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. AND AS TO 14 FOR THE --
MR. DOWNEY: I TAKE THE SAME POSITION THAT I STATED TO YOUR HONOR WHEN WE WERE AT SIDE-BAR.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: MR. SCHENK?
MR. SCHENK: NOTHING BEYOND WHAT WE DISCUSSED AT SIDE-BAR.
JUDGE DAVILA: THANK YOU. ALL RIGHT. THANK YOU. I'M GOING TO RELIEVE -- GRANT THE MOTION AS TO JUROR NUMBER 46, 46. NUMBER 90 WAS WITHDRAWN. I'LL OVERRULE AS TO 14. SO 46, MR. WONG WAS GRANTED FOR REASONS STATED. ANYTHING FURTHER FOR TODAY?
MR. SCHENK: NO, YOUR HONOR.
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. LADIES AND GENTLEMEN, AS I INDICATED EARLIER, WHAT YOU'RE PERMITTED TO DO NOW, YOU'LL BE PERMITTED TO LEAVE THE COURTHOUSE. YOU WILL BE CONTACTED -- DID THEY GO DOWNSTAIRS? NO.
(DISCUSSION OFF THE RECORD BETWEEN THE COURT AND THE CLERK.)
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: LADIES AND GENTLEMEN, PLEASE LISTEN FOR YOUR NUMBERS. WE HAVE MADE DECISIONS ABOUT JURORS WHO DO NOT NEED TO CHECK IN WITH THE COURT AND YOU WILL BE RELEASED FROM POTENTIAL JURY SERVICE. THOSE ARE JUROR NUMBERS: 1, 31, 63, 11, 94, 46, 49, AND 95. THOSE JURORS, THOSE JUROR NUMBERS, YOU'RE EXCUSED. YOU WILL NOT BE CALLED BACK FOR JURY SERVICE. ALL OF THE OTHER JURORS WHOSE NUMBERS I DID NOT CALL, PLEASE, YOU MAY LEAVE NOW, BUT YOU MAY BE RECALLED FOR JURY SERVICE. AS I SAID, WE ARE GOING TO DO THIS AGAIN TOMORROW WITH ADDITIONAL JURORS. SO DO PLEASE MAKE YOURSELVES AVAILABLE. YOU MAY RECEIVE COMMUNICATION CALLING YOU BACK TO COURT. IN THE INTERIM, AGAIN, YOU ARE NOT, YOU ARE NOT TO READ, LISTEN TO, OR TALK ABOUT ANYTHING ABOUT THIS CASE ON ANY MEDIA, NEWS REPORT, INTERNET INFORMATION, CHAT ROOMS, FACEBOOK, TWITTER, ANY OF THOSE TYPE OF THINGS, YOU'RE NOT TO DISCUSS THE CASE WITH ANYONE, YOU'RE NOT TO DISCUSS ANYTHING ABOUT YOUR POTENTIAL SERVICE IN THE CASE OR THE THINGS ABOUT IT WITH ANYONE UNTIL YOU'RE RELIEVED FROM YOUR JURY SERVICE OR UNTIL FURTHER COURT ORDER. IS THERE ANYONE WHO IS GOING TO HAVE ANY DIFFICULTY FOLLOWING THAT ORDER? I SEE NO HANDS. ALL RIGHT. THANK YOU, LADIES AND GENTLEMEN. THANK YOU FOR YOUR PATIENCE. YOU'LL BE CONTACTED LATER. I SEE A HAND. YES, SIR? WHAT JUROR NUMBER ARE YOU?
JUROR: 48.
JUDGE DAVILA: 48.
JUROR: I'M SORRY. ME, I'M SELF-EMPLOYED. ME AND MY WIFE RUN A STORE AND I HAVE TO TAKE CARE OF ALL OF MY VENDORS AND DISTRIBUTORS, AND SO IF YOU WOULD KINDLY EXCUSE ME FROM JURY DUTY KINDLY.
JUDGE DAVILA: ALL RIGHT. SIR, YOU HAVE NOT BEEN SELECTED AS A JUROR IN THE CASE YET. I DON'T KNOW IF THAT IS GOING TO HAPPEN.
JUROR: RIGHT, SIR.
JUDGE DAVILA: SO IF YOU WOULD JUST STAY TUNED AND THE COURT WILL CONTACT YOU AS TO ANYTHING FURTHER.
JUROR: THANK YOU, SIR.
JUDGE DAVILA: YOU'RE WELCOME. ALL RIGHT. AND I SEE ANOTHER HAND. MR. PENUMUDY, IS THAT RIGHT? DID YOU WANT TO SAY SOMETHING?
JUROR: YES, YOUR HONOR. I HAD MENTIONED EARLIER ABOUT MEDICAL CONDITIONS, AND I WASN'T SURE WHAT THE RIGHT TIME WAS. BUT I DO HAVE A NOTE FROM MY DOCTOR REGARDING THAT AND TO BE EXCUSED. I DON'T KNOW WHEN TO PRESENT THAT, BUT I JUST WANTED TO BRING THAT UP.
JUDGE DAVILA: OH, WELL, WE TALKED ABOUT THIS EARLIER AND I THOUGHT YOU SAID --
JUROR: THAT WAS NOT THE EXTENT OF ALL OF MY CONDITIONS, SO --
JUDGE DAVILA: OH, SO YOU HAVE SOME OTHER INFORMATION REGARDING MEDICAL ISSUES?
JUROR: I MEAN, I DO HAVE A NOTE.
JUDGE DAVILA: WELL, I'LL HAVE -- MS. KRATZMANN WILL GET THAT NOTE FROM YOU AND I'LL LOOK AT IT HERE.
JUROR: OKAY. OKAY.
JUROR: (HANDING.) THANK YOU.
COURT CLERK: (HANDING.)
JUDGE DAVILA: LET ME SHARE THIS WITH COUNSEL. MS. KRATZMANN.
COURT CLERK: YES, YOUR HONOR.
JUDGE DAVILA: THANK YOU, SIR. I'VE READ THE NOTE. COUNSEL?
MR. SCHENK: NO OBJECTION TO DISMISSAL.
MR. DOWNEY: NO OBJECTION.
JUDGE DAVILA: ALL RIGHT. YOU'RE EXCUSED, MR. PENUMUDY. THANK YOU. THANK YOU, FOLKS. WE'RE IN RECESS NOW. PLEASE REMEMBER THE ADMONITION. IT'S IN PLACE UNTIL YOU HEAR OTHERWISE. THANK YOU. COUNSEL, YOU SHOULD REMAIN FOR JUST A MOMENT.
(JURY OUT AT 5:00 P.M.)
JUDGE DAVILA: THANK YOU. PLEASE BE SEATED. THE RECORD SHOULD REFLECT THAT OUR PROSPECTIVE JURY PANEL HAS LEFT. ALL COUNSEL ARE PRESENT. COUNSEL, ONE THING I WANTED TO INDICATE, WE DID HAVE, AS I SAID, OUR PROTOCOL WOULD BE SIDE-BARS WOULD BE HELD IN THE JURY ROOMS JUST BECAUSE OF THE INEFFICIENCY OF OUR MICROPHONE AND SPACING. AT THE BENCH HERE WE COULD NOT GET ALL COUNSEL SAFELY AROUND THIS AREA. THAT'S WHY WE HAD TO USE THE JURY DELIBERATION ROOM FOR THAT PURPOSE. I AM NOT GOING TO SEAL THAT TRANSCRIPT, HOWEVER. THE TRANSCRIPT OF THE DISCUSSIONS WE HAD REGARDING ANY CHALLENGES WILL REMAIN A PUBLIC ITEM ON THE TRANSCRIPT. SO IT'S AVAILABLE FOR PUBLIC USE SUCH THAT THE PUBLIC COULD UNDERSTAND AND PARTICIPATE AT LEAST AS TO READING OUR DISCUSSIONS REGARDING THAT. ANY OBJECTION TO THAT, MR. DOWNEY?
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: MR. SCHENK?
MR. SCHENK: NO, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. ANYTHING FURTHER BEFORE WE END FOR THE EVENING? MR. DOWNEY?
MR. DOWNEY: YOUR HONOR, I WOULD JUST NOTE IN CONNECTION WITH MR. SINGH, WHO IS JUROR NUMBER 48, WHO I THINK IS THE GENTLEMAN WHO SPOKE, I THINK WE HAD PREVIOUSLY INDICATED TO THE COURT THAT WE WOULD HAVE NO OBJECTION TO HIS DISMISSAL FOR HARDSHIP. I KNOW TODAY THAT ISSUE DID NOT COME UP WHEN YOUR HONOR HAD ASKED THAT QUESTION. IT'S APPARENT TO ME FROM WHAT JUST OCCURRED THAT THERE IS A SERIOUS HARDSHIP CASE. SO TO THE EXTENT THAT IT IS HELPFUL TO THE COURT, I JUST WANTED TO LET THE COURT KNOW BASED ON WHAT MR. SINGH SAID IN THE QUESTIONNAIRE AND TODAY THAT WE CONSENT TO HIS DISMISSAL.
MR. SCHENK: YOUR HONOR, CAN I CONFIRM THAT HE WOULDN'T COME TOMORROW REGARDLESS?
JUDGE DAVILA: THAT'S CORRECT.
MR. SCHENK: MAY WE JUST HAVE THE EVENING TO LOOK AT THE QUESTIONNAIRE?
JUDGE DAVILA: THAT'S FINE. THAT'S FINE. I RECALL HIS QUESTIONNAIRE. I THINK HE AND HIS WIFE RUN A LIQUOR STORE IN GILROY, CALIFORNIA. THEY'RE THE ONLY PEOPLE WHO -- I THINK HE SAID HE HANDLES THE MERCHANDISING AND THE ORDERING AND THOSE TYPES OF THINGS, AND THAT'S WHAT I RECALL FROM HIS QUESTIONNAIRE. YES, THAT'S WHY I DIDN'T EXCUSE HIM TODAY. HE'S NOT COMING BACK TOMORROW AND WON'T BE PART OF THE PANEL TOMORROW, AND WE CAN CERTAINLY LOOK AND SEE. I HAVEN'T DONE THE MATH. I DON'T KNOW WHERE OUR NUMBERS ARE RIGHT NOW. IT MAY BE -- WE DON'T KNOW, BUT IT MAY BE WITH TOMORROW'S PANEL WE WILL HAVE SUFFICIENT JURORS SUCH THAT WE CAN BEGIN THE PROCESS OF ANY JURY SELECTION PROPER, THAT IS, EXERCISING ANY PEREMPTORY CHALLENGES. I THINK WE HAVE 46 COMING IN TOMORROW, MS. KRATZMANN?
COURT CLERK: YES, YOUR HONOR.
JUDGE DAVILA: AND I'LL LET YOU DO THE MATH ON THAT WITH WHAT WE HAVE LEFT. WE NEED 17 JURORS, PLUS 5 FOR OUR ALTERNATES, AND WE MAY HAVE ENOUGH WITH TOMORROW'S 46 TO ACCOMPLISH THAT. I'M JUST ADVANCING THAT.
COURT CLERK: YOUR HONOR, I THINK WE HAVE REMAINING, WE HAD 39 JURORS TO DATE AND I BELIEVE YOU EXCUSED 14, AND SO THAT LEAVES US WITH 25 IN THIS GROUP TODAY.
JUDGE DAVILA: SO IT SEEMS THAT MATHEMATICALLY IT'S HIGHLY POSSIBLE THAT WE'LL HAVE A SUFFICIENT SUPPLY OF JURORS WITH OUR GROUP TOMORROW. IS THAT SAFE TO SAY, OR OBSERVE?
MR. DOWNEY: IT SEEMS THAT WAY, YOUR HONOR.
JUDGE DAVILA: ALL OF YOU MATH WHIZZES. OF COURSE WE DON'T KNOW OF ANY CAUSE CHALLENGES OR WHAT WILL COME UP. OKAY. I JUST WANTED TO CLARIFY THAT. WE DID RESERVE THURSDAY FOR POTENTIAL HEARING IF NEEDED, AND SO WE STILL HAVE THAT AVAILABLE, BUT WE'LL JUST SEE WHERE THIS TAKES US. ALL RIGHT. ANYTHING FURTHER FROM THE GOVERNMENT?
MR. SCHENK: NO. THANK YOU.
JUDGE DAVILA: ANYTHING FROM THE DEFENSE?
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. HAVE A GOOD EVENING. THANK YOU. I'LL SEE YOU TOMORROW MORNING. THANK YOU.
COURT CLERK: COURT IS ADJOURNED.
(COURT ADJOURNED AT 5:05 P.M.)