Elizabeth Holmes is set to go to trial in July for her role in the Theranos scandal, but her defense team is offering another challenge as they prepare for battle in court. They are arguing that the COVID-19 pandemic and the shelter in place orders that have been put into effect are negatively impacting their ability to put forth the best defense.
It may seem like the defense team is grasping at straws, but it’s certainly an argument that should be heard. The crux of the argument revolves the memo that Attorney General William Barr issued to state and local authorities that said they are not to interfere with federal employees performing essential duties. So while federal prosecutors can go about their day as normal, Holmes’ defense team can’t perform the same actions without threat of trouble from the police. They petitioned the judge to allow them to defy the shelter in place order as they meet in areas like Washington D.C. and San Francisco to prepare their defense.
“Trial-preparation tasks will require members of the defense team or agents we retain to undertake actions that public health officials have deemed to be inadvisable and/or unlawful under the above decrees and others. Travel for meetings may in some circumstances also be unlawful,” Lance Wade and other attorneys from D.C. firm Williams & Connolly wrote. “We expect many subpoena recipients and/or witnesses to respond with hostility to receipt of subpoenas or other contacts during this time, and to question the lawfulness of our actions.”
Do They Have A Point?
Both sides seem to have a point hen it comes to answering the question of whether or not it’s fair to hold prosecutors and defense attorneys to different standards during these uncertain times. Here’s a look at arguments being made by both sides:
Defense – Among other things, defense attorneys are arguing that if prosecutors are allowed to defy the shelter in place order, they too should be able to in order to put forth the best defense for their client. They are saying that conducting interviews over the phone and not being able to meet in person is objectively hurting the case, and therefore they should be allowed to defy the order or have the case postponed.
Prosecution – Prosecutors are arguing that although they are allowed to defy the shelter in place order, the vast majority of their work is being conducted in line with the social distancing rules. They say they are also being affected by the pandemic despite their ability to violate the order if they choose, so both sides are facing similar situations. They claim they are scared of the pandemic, so they aren’t meeting in person unless it’s absolutely necessary, as they don’t want to unnecessarily increase their risk of catching coronavirus.
The judge also weighed in, questioning the true motive of such a request.
“I have to tell you: I was a little concerned about your filing basically asking the court to violate other orders,” said U.S. District Court Judge Edward Davila. “You know, sir, I look at the order, the tone of it is: Judge, if you want us to go forward, you’re going to have order us to violate other jurisdictions’ orders and that’s what we are asking you to do in a very public way — a very publicly filed way. … I was a little taken aback, candidly.
Davila said that most of the work the defense firm needed to do could be performed from home, and he even pulled up a statement from the defense firm’s website saying how robustly their work was continuing despite the health crisis that has stopped business in many parts of the country. The judge said the firm is plenty capable of using it’s “outstanding IT capabilities” to provide “uninterrupted” service to its clients.
“I recognize the current crisis in this country is challenging us in many different ways,” Davila said. “My sense is your firm faces the challenges we all face now.”
Davila ultimately said he doesn’t want to pressure anyone into doing anything that violates state or local orders or puts someone’s health in danger. He also said he wasn’t locked into the current July 28 date for jury selection, and will hear arguments from both sides on April 15 to see how things are progressing.
