Elizabeth Holmes Elizabeth Holmes

Defense lawyers for Elizabeth Holmes are set to ask a federal judge in San Jose to push back an August trial date in the criminal fraud case against her, in part due to the COVID-19 pandemic.

Holmes' lawyers at Williams & Connolly filed a joint status report with federal prosecutors that indicated that the parties were close to reaching a compromise on pushing the start of trial back to some point in October. The two sides failed to reach an agreement on a proposed date, however, after the government indicated that it intended to seek two additional charges against Holmes related to patients who paid for the defunct company's blood-testing services and to add allegations the alleged conspiracy to mislead investors, patients and doctors about the accuracy of the company's tests dated back to 2010.

Holmes declined to waive her right to be charged by indictment and let the government, which currently can't seek an amended indictment because of the suspension of grand jury proceedings in the Northern District, to move forward with an amended information—a charging document that doesn't require grand jury sign-off.

"Counsel for Ms. Holmes does not understand why it took the government nearly two years post-indictment, and more than five years into its investigation, to bring these new charges," wrote her lawyers. "Nor does counsel understand why the government disclosed its intention to bring these new charges so late in our collective discussions about a trial schedule."

Federal prosecutors indicated that whether or not the indictment is superseded the trial can continued as schedule or with an October start date.

Beyond the dispute over the charging document, Holmes' lawyers indicated that they had initially asked for trial to be pushed back until early 2021. If the government were to seek further charges and to expand the scope of the alleged conspiracy, Holmes' lawyers wrote that an October trial date wouldn't be feasible.

"Quite simply, we believe this is not the first or even one of the first cases that should be tried as the courts adopt new procedures and make adjustments for safe public health while conducting trials, given several unusual characteristics," wrote Holmes' lawyers. In particular they noted that the trial was set to last for months, and the courtroom would likely be crowded.

"The defense, jurors, and witnesses will all enter the courthouse through crowds of onlookers who have often approached and even touched counsel and the defendant during entry to the building," Holmes' lawyers wrote. "We are confident that the Court and all trial participants will make all possible adjustments and work through these and other health-related issues as safely and diligently as they possibly can, but it remains true that in a trial of this length, with this number of participants, significant risks remain."

U.S. District Judge Edward Davila of the Northern District of California, who is overseeing the case, earlier this month asked the parties to confer on whether keeping the current trial date, with jury selection set for late July and openings set for early August, was feasible given the constraints the pandemic has placed on trial preparation. A telephonic hearing before Davila is scheduled for Wednesday morning.

Read more:

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