Without uttering a baritone-inflected word, former Theranos CEO Elizabeth Holmes is having an effect on the ever-narrowing jury pool deciding her future — and it’s unlikely Holmes will speak in the courtroom, even though she is on the defense’s witness list, legal experts say.
“Holmes will likely not testify,” said NBC legal analyst Danny Cevallos. “There’s just too much risk. Once she loses credibility, that’s it. And she’s doing much better sitting there silently charming the jurors.”
Part of that silent power simply comes from the tableau presented by Holmes appearing daily in the courtroom with her mother, husband, father-in-law and other family members. She also has held hands with her mother while walking into court.
“Jurors notice that,” said Ellen Kreitzberg, a University of Santa Clara law professor who has been attending the Theranos trial. “It helps to humanize her and provide her a story outside of the one related to these charges.”
Creating an alternate possible narrative beside that of a corner-cutting and greedy CEO is critical for the defense in a case in which the jury will be asked to determine whether the alleged fraud was intentional.
“You’re asking jurors to go into her mind and ask what her thinking was. If you see her in this setting in the courtroom, figuring out her intent becomes more complex,” Kreitzberg told NBC News. “It gives the jury something to hang on to, and something the defense is doing quite effectively.”
Kreitzberg also believes Holmes won’t testify, making any nonverbal communication from the failed blood-testing startup founder all the more important.
Holmes’ presence has already had an impact on the jury, playing a role in the dismissal of one juror and causing a moment of hesitation before an alternate was sworn in.
The trial started in September with 12 jurors and five alternates and is now down to just two alternates.
One juror was dismissed after serving a month, saying that her Buddhist principles of forgiveness would fill her with intractable guilt were she to render a guilty verdict that sent Holmes to jail.
“I never had a juror say anything like that in my life,” Cevallos said. “That’s unusual.”
Another alternate juror was dismissed last week for playing Sudoku, which she said prevented her from being “fidgety” and helped her focus.
And another alternate expressed concern that English was not her first language and it could cause her to make a mistake.
“She’s so young,” the alternate said of Holmes. “It’s my first time in this situation and it’s her future.”
Legal experts were astonished by the sympathetic feelings expressed by the juror toward Holmes and said the dismissals are troubling at this stage in the proceedings.
“Having just two alternates, with the government only about half way through its case after two months, suggests the real risk of a mistrial,” said Mark MacDougall, a former federal prosecutor now in private practice.
Trial days are currently scheduled through early December, according to the judge’s calendar. More could be added if the defense calls witnesses.
“Every jury will experience some attrition when a trial runs for this long. A couple of unexpected illnesses, family emergencies or just episodes of poor judgment — and the court will be faced with the prospect of losing a twelfth juror and the capacity to get to a verdict,” MacDougall said.
The number and nature of the dismissals are atypical, said Jessica Roth, professor of law at the Benjamin N. Cardozo School of Law at Yeshiva University.
“This is an unusual number of jurors to lose at this stage of the trial. The reasons for losing them also are unusual at this stage of the proceedings," Roth said. "Jurors’ religious beliefs and financial hardship that would make it difficult for them to serve ordinarily would be identified during jury selection. So it is surprising that these jurors were selected for the jury in the first place."
Witnesses have testified that Holmes has a unique ability to captivate attention. Steve Burd, former CEO of Safeway, which lost close to $400 million in a collapsed deal with Theranos, said during testimony last month that she had the power to command a whole room, which he compared to that of U.S. presidents he had met. Holmes had a “sort of ethereal quality,” former Secretary of State and Theranos board member Henry Kissinger told The New Yorker in 2014.
Ex-employees and journalists who have interviewed Holmes have documented her habit of making unblinking eye contact. As a teenager, Steve Jobs, the Apple CEO after whom Holmes modeled herself, perfected the habit of staring at people without blinking in order to intimidate them, according to Jobs’ biographer, Walter Isaacson. During jury selection in late August, Holmes attempted to make eye contact with each potential juror, CNBC reported.
In the courtroom itself, Holmes sits upright and remains still, listening attentively, rarely speaking to her lawyers or taking notes, Kreitzberg said.
“She is clearly a very compelling person,” Kreitzberg said, noting the connection and concern expressed by investors such as former Secretary of Defense James Mattis, even after their business relationships didn’t live up to their promises.
But, she said, “that magnetic presence is not coming through in the courtroom where she is distanced, not speaking, and she’s masked. She doesn’t doesn’t have the same power.”
Experts say that while in her removed, masked and muted state, Holmes is doing her job and appearing as a model defendant.
“Your best hope as a defense attorney is that your client sits there and tries to not look guilty. In Holmes’ case she’s succeeded beyond her lawyers’ wildest dreams,” Cevallos said. “In a way we shouldn’t be surprised, because this is the same person who allegedly charmed some of the most influential people in the world.”
Holmes has even developed her own fanbase. Calling themselves “Holmies,” they defend the disgraced CEO on social media under the hashtag #GirlBoss. At the start of the trial, three young woman dressed in black and sporting messy blond hair like Holmes stood in line, saying they were “fans.”
According to the government’s indictment, Holmes is accused of defrauding investors and patients by misrepresenting Theranos' blood-testing technology.
Holmes and her former boyfriend and former Theranos COO Ramesh “Sunny” Balwani face 12 counts related to wire fraud. If found guilty, both could face up to 20 years in prison.