Elizabeth Holmes, founder of Theranos Inc., left, arrives at federal court in San Jose, California, on Tuesday, Oct. 12, 2021.
SAN JOSE, CALIF. -- A popular puzzle game got a third juror in the Elizabeth Holmes trial dismissed after she admitted to playing it during testimony to help keep focused.
According to a court transcript the juror kept Sudoku in her court-issued notebook and played it for around seven to ten days of testimony.
"Were you playing this Sudoku?" U.S. District Court Judge Edward Davila asked juror No. 5 while in chambers.
"I do have Sudoku, but it doesn't interfere with me listening," the juror said. "I'm very fidgety, so I need to do something with my hands. So at home I'll crochet while I'm watching or listening to T.V."
The shakeup leaves only two alternates in a trial that's expected to last until December.
On Friday morning Davila told prosecutors and defense attorneys for Holmes that he received an email from a juror. The judge, along with Jeffrey Schenk, an assistant U.S. attorney, and Kevin Downey, a defense attorney for Holmes, spoke with the juror in chambers.
"The court had found good cause to excuse a juror," Davila told the courtroom upon his return. There was initially no explanation given for excusing the female juror.
In chambers, Davila asked the juror: "So has this distracted you from listening?"
"No," the juror said.
"Have you been able to follow and retain everything that is going on in the courtroom?" Davila asked. "Oh, yeah, definitely," the juror said.
An alternate juror was selected to join the main bench. The impaneled jury deciding the fate of Holmes consists of eight men and four women.
"This may have been a case of one juror telling on another juror who was perceived to be not taking the trial seriously," said Danny Cevallos, an attorney and NBC News legal analyst, in an interview. "As crazy as it sounds, as trials drag on jurors get fatigued. They sometimes turn to something like Sudoku or even fall asleep and that can disqualify them as jurors."
Holmes' high-profile trial began in San Jose seven weeks ago. The second juror was removed two weeks ago after revealing that, due to her Buddhist beliefs, she could not in good conscious return a verdict that may send Holmes to prison. Last month, a 19-year-old juror was dismissed for financial hardships.
Losing too many jurors runs the risk of a mistrial. However, Cevallos said that, according to a federal rule, after a jury has started deliberations a judge may permit a jury of 11 to return a verdict.
Holmes has pleaded not guilty to ten counts of wire fraud and two counts of conspiracy to commit wire fraud. Federal prosecutors allege Holmes and her co-conspirator, former company president Ramesh "Sunny" Balwani, engaged in a decade-long multimillion-dollar scheme to defraud investors and patients with regards to Theranos' blood-testing technology.