Perplexingly, Carreyrou’s name is among dozens of possible witnesses Holmes may call to testify, although he’s yet to be subpoenaed. In a court filing Friday, his attorneys say “it remains entirely unclear whether or why Holmes would actually want to call Carreyrou to the stand,” and they’re chalking it up to a “ruse” to keep Carreyrou from covering the story through his podcast.
Holmes has refused to remove him as a possible witness or, alternatively, to exempt him from the exclusion and gag orders that would apply to certain witnesses, according to the filing. This, according to his attorneys, is an attempt to potentially keep the journalist out of the courtroom and from reporting firsthand on the high-profile case alongside other media.
Now, his attorneys want the court to make clear that, if he is subpoenaed, the exclusion order (which prevents some witnesses from being inside the courtroom during other witness testimonies), or the gag order (which precludes them from speaking about their testimonies beyond their attorneys), would not apply to Carreyrou.
His attorneys are asking the court to consider his First Amendment rights to cover the trial, as well as for clarity on what testimony may be sought if he’s called as a witness. An attorney for Holmes did not immediately respond to a request for comment.
Carreyrou’s investigative reporting
while at The Wall Street Journal uncovered significant flaws in the company’s purported revolutionary blood testing technology and capabilities that contradicted claims made by Holmes and Theranos. The company would cease operations less than three years later.
Holmes now faces a dozen counts of federal fraud and conspiracy charges, and up to 20 years in prison over allegations that she intended to mislead investors, patients and doctors about the capabilities of her company and its proprietary blood testing technology in order to take their money. She has pleaded not guilty.
Carreyrou went on to write
a critically-acclaimed book “Bad Blood: Secrets and Lies in a Silicon Valley Startup” based on his reporting and is currently hosting a podcast called “Bad Blood: The Final Chapter” devoted to the trial.
“A classic intimidation tactic”
A pre-trial court order determined that fact witnesses — or those called to verify relevant facts, as opposed to expert witnesses — would face exclusion and gag orders unless granted exceptions. Carreyrou’s attorneys argue he is not “an appropriate fact witness for this trial.”
“Aside from being harassed and threatened for his journalistic efforts, he is not an alleged victim of Theranos, Holmes or [Ramesh “Sunny”] Balwani,” the filing reads. (Balwani is a former Theranos executive and Holmes’ ex-boyfriend, who will face the same charges in a separate trial. He has pleaded not guilty.)
Professor Jessica Roth of Cardozo Law School told CNN Business the fact that Carreyrou has yet to be subpoenaed “suggests that the defense does not have a firm intention to call him.”
“While I don’t wish to conjecture about the defense’s motives to try to play out the plausible reasons for him being on the witness list, it is hard to identify how he is helpful and useful as a witness for the defense,” Roth said, adding that “one is just left to wonder what is the rationale for him being on the witness list.”
In an interview with CNN Business ahead of the trial, Carreyrou said he’d “make a great witness for the prosecution and a terrible one for the defense.”
George Demos, a former Securities and Exchange Commission prosecutor and adjunct law professor at the UC Davis School of Law, called it “a classic intimidation tactic designed to muzzle Carreyrou, who continues to uncover incriminating evidence.”
“Holmes has shown no qualms in the past about deploying aggressive legal tactics and certainly silencing a tenacious journalist is consistent with this strategy,” he said. (Carreyrou, during the course of his earlier reporting, was threatened with legal action by Theranos.)
Even if Carreyrou were to be subpoenaed, his attorneys said in the filing that, “there is a public interest in Carreyrou’s reporting on his podcast, which is very popular, and it should not be stymied because of any maneuvers by Holmes. Holmes’s tactic is an extension of a bad faith desire to harass Carreyrou and infringe on his First Amendment rights and privileges.”
Roth of Cardozo Law School said this latest development is “an additional manifestation of the unusual role that the media is playing in this case.”
“The media helped build her up. The media was, in a sense, used to perpetuate the fraud that’s been alleged. The media helped bring her down,” she said. “We continue to have this unusual, central role played by the media now playing out in the context of the trial itself.”