Judge berates defense of founder of Theranos

It is a truth universally recognized by lawyers: a witness who gives damaging testimony about an accused in a criminal trial must be dragged through the mud by the accused’s counsel. But Lance Wade, who represents Elizabeth Holmes, the fallen patron of Theranos, has just concluded what has to be one of the strangest and most extreme displays of the tactic in the history of American jurisprudence. After Adam Rosendorff, the former laboratory director of Theranos, provided a day of damning testimony – so dry – that Holmes actively covered up the problems with the startup’s blood tests, Wade kept him at the helm for four full days, trying to destroy his credibility with the jury.

Say this for Wade: he warned us. “I expect a long cross-examination,” Wade told the court after the prosecution finished questioning Rosendorff on September 24.

The ordeal lasted so long that she was severely reprimanded by Judge Edward Davila. On Tuesday, when the jury was out of the courtroom, the judge berated Wade for “piling on” Rosendorff. Davila has made it clear that he understands what Wade is up to – and that he will not allow this to continue. Wade’s “goal was to diminish the credibility of this witness,” Davila told him. “I think you have accomplished this.

By the time the judicial crackdown arrived, it was long overdue. As I recounted last week, Rosendorff had testified during questioning by the government that many blood tests administered by Theranos did not work, that some were secretly performed by machines that Theranos did not make, and that Holmes, the founder and CEO, knew about the problems and worked to cover them up. Wade’s job was either to convince Rosendorff to reverse his claims or to convince the jury that the former lab director wasn’t credible enough to criticize anyone, including Holmes.

To accomplish his task, Wade went to Rosendorff from every angle imaginable, no matter how insignificant or irrelevant they might be. He described the clinical pathologist as someone who skipped meetings at Theranos because he was looking for a job, spoke to the government so he could collect a whistleblower bonus and was in delay in appeals to affected physicians whose patients had been tested by Theranos.

Kate Munsch / Reuters

Wade, a thin man who jabs like a bantamweight, and Rosendorff, whose dress shirt tucked under his suit jacket, turned out to be a match, too. As the days of cross-examination dragged on, their fights became more and more heated.

“Do I have an independent memory of an email I wrote seven years ago?” Rosendorff lashes out at Wade at one point. “No.”

“Well,” Wade replied, “you also don’t remember a meeting you attended.”

Every now and then Wade managed to dispel Rosendorff’s previous testimony. At one point, he posted emails indicating that a senior Theranos executive had responded to a request from Rosendorff, contrary to what Rosendorff had described as his reluctance.

“That doesn’t sound like reluctance, does it?” Wade growled.

“I was talking about my personal conversations with him,” Rosendorff retorted.

On several occasions, Wade attempted to paint Rosendorff as having contradicted himself. The former lab director had testified, for example, that he did not need to answer questions from doctors in a previous job at the University of Pittsburgh as he did at Theranos. Wade produced a statement in which Rosendorff had said the exact opposite: that he had, in fact, answered questions at both jobs.

“It’s 180 degrees different from what you answered in your direct testimony,” Wade said.

“Yeah, it seems to be different,” admitted Rosendorff, a little sheepishly. He explained that the Pittsburgh lab performed a lot more tests than Theranos but produced a lot fewer complaints from doctors.

Wade left the jury with the impression that the former lab director never really invested in his responsibilities at Theranos. Rosendorff, he said, had testified that he started looking for work almost immediately after joining the company.

“So you were looking around?” Wade asked. “Did you have one foot outside the door?” ”

“I was very attached to my job,” replied Rosendorff.

The beating continued. Rosendorff’s lab was a “disaster,” Wade said. He missed a critical meeting because he was interviewing for another job and had a few lucrative side gigs on the horizon by the time he resigned. He transferred patient data to his personal account – “stolen emails,” called them Wade – and planned to make money with them helping the government case. “No, not at all” was Rosendorff’s frequent response.

Overall, however, the cross-examination seemed more exhausting than damaging. And by the end of the fourth day, the judge had had enough. Wade was harassing Rosendorff about his job search when the former lab director turned the tide.

Rosendorff: “I don’t know if you’ve ever applied for a job. But there’s no point in talking at length about a company you work for that is fraudulent and under investigation.”

Wade: “Move over to cross out that answer, Your Honor. “

Davila: (Long pause) “Rejected.”

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It was after the jury was excused for a break that the judge, a great guy who never raises his voice, landed on Wade. The defense had repeatedly asked to question Rosendorff, who left Theranos in 2014, about potential wrongdoing at three of his subsequent employers. The prosecution argued that such a line of questioning was irrelevant to the issue at hand: whether Holmes was guilty of criminal fraud.

Davila let Wade know that he had exhausted the court’s patience. Asking about Rosendorff’s other employers would suggest that the lab director “had been involved in a criminal investigation, and he is not,” Davila said. “Looking at the work you have done over the past four days with this witness, you have challenged his competence. “

The judge allowed Wade to question Rosendorff about his current employer, PerkinElmer, as the same inspectors who snooped around Theranos questioned Rosendorff about his current lab. “This is an area where you will be allowed to probe, but you will have to probe lightly,” the judge said.

Then he played with Wade a bit. “I’m not going to tell a seasoned veteran like you how to champion your cause,” Davila said – eliciting a whispered “thank you” from Wade – before advising him extensively on the types of questions he might ask.

The bandage seemed to be working. After the break, Wade kindly toasted Rosendorff, noting that he had been threatened with a two-year suspension for an unspoken infraction at his current lab. Six minutes later, Wade was finally done. “I have no further questions,” he told the court.

Rosendorff had a final round of questioning yesterday. It started with a 90-minute reorientation from John Bostic, the assistant US lawyer who kicked off the lab director’s testimony two long weeks ago. The prosecutor used his time to shoot down some of the defense’s more fragile claims, including the idea that a key partnership between Theranos and Walgreen had been just a “soft start.”

Then came another hour of cross-examination by Wade. As a farewell gift, the defense attorney hinted yet another undisputed innuendo that Rosendorff is the subject of some sort of investigation regarding his current employer, PerkinElmer.

And then, with a simple “thank you” from the judge, Rosendorff was finally excused.