Elizabeth Anne Holmes, former CEO of the now defuct Theranos company. (Photo: Jason Doiy/ALM) Elizabeth Anne Holmes, former CEO of now-defunct Theranos. (Photo: Jason Doiy/ALM)

A federal judge said he would like to push back the criminal fraud trial against Theranos' Elizabeth Holmes until October amid public health concerns over COVID-19.

At a telephonic status conference Wednesday, U.S. District Judge Edward Davila of the Northern District of California said Oct. 27 is more realistic than the original August trial date set to take place in San Jose, California, but he noted that it's impossible to forecast the status of the health crisis.

As with the flu virus that comes around in winter and fall, Davila said there's an expectation that it could cycle back around and further delay the trial.

"We know the prime directive is to ensure that all parties [get] fair treatment in the court, but now the prime directive addendum is to proceed with safety and caution to ensure everyone who enters our court is safe," he said. "We're so grateful for healthcare professionals and all those bio scientists and engineers working diligently to find a vaccine that can protect all of us, but we all know that takes time," he said.

Government prosecutors suggested an Oct. 5 trial date in a joint status report filed Tuesday, but Holmes' Williams & Connolly counsel pushed for a late October trial start after the government informed Holmes last week that it was pursuing a superseding indictment in front of a grand jury. The indictment would widen the scope of the alleged conspiracy to mislead investors, patients and doctors going back to 2010, change the definition of investors to include contractual parties such as Walgreens and Safeway, and seek two additional counts against Holmes over defrauding a patient and doctor who paid for blood-testing services.

Williams & Connolly's Lance Wade, based in Washington, D.C., said in the hearing the indictment would raise different legal issues, motions and "fundamentally change preparation" for trial. For instance, Wade said the defense would have to go back through a portion of the 20 million pages of documents in the case with the indictment in mind.

"Why it took to this point to add those charges to the case is unclear to the defense and it's of some frustration given all of the work we've done thus far," Wade said.

Assistant U.S. Attorney Robert Leach said he fundamentally disagrees that the proposed indictment would be sea change. "This is the same case and same discovery that they've had for a year-and-a-half," he said.

During the hearing, Wade also advocated for pushing back the trial until 2021 during these uncharted times. "We don't think any public health authorities really know what the second half of this year will look like, or what conduct will be safe," he said. "By extension, of course, it makes it very difficult for us, and I'm sure for the court, to determine whether those conditions will be conducive to a lengthy hearing."

He said it's simple math and statistical logic that there's a greater risk for trial disruption from the virus in a trial that spans 100 days, not to mention the crowds that the case draws inside and outside the courtroom. "We don't think it's prudent to start a trial if there's a substantial risk of a mistrial," he said.

Davila suggested that the parties meet for an interim status conference in July, "so that we can look forward and see if the October date is a reality or if it makes more sense to look beyond the fall and into the new year."

Toward the end of a telephonic conference speckled with reminders for participants to mute their phones and what the judge described as a "lovely lullabye of beeps" as attendees hopped on and off the call, the judge said the court was looking into different telephonic and video conferencing platforms and that he looked forward to reopening the court.

"The place you work is the courtroom, not your living room," he said. "I hope we can open our courtroom soon, and we all can enjoy each other's company."

Read More:

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