Theranos fraudster Elizabeth Holmes’ flurry of attempts this week to get a new trial has multiple goals, and one of those court motions stands a good chance of delaying the start of her expected prison sentence, legal experts say.
“The clock is ticking for Ms. Holmes on her liberty,” said Steven Clark, a legal analyst and former Santa Clara County prosecutor.
With her sentencing next month expected to result in a multi-year prison term, Holmes this week filed three motions in US District Court in San Jose asking Judge Edward Davila to toss the jury’s four-count guilty verdict in her felony fraud case and order a new trial. Those filings, one Tuesday and two Wednesday, came after Davila last week nixed her earlier attempt to toss the verdict for good without a new trial.
“The goal is to keep her out of jail forever,” said criminal defense lawyer Carrie Cohen, who has been following Holmes’ case from New York. “The secondary goal is to put it off as long as possible.”
Even if none of the three motions gets Holmes a new trial, all could bolster her inevitable appeal, and one could delay her Oct. 17 sentencing, legal observers said. No hearing dates on the motions have been set. Both sides have agreed to file arguments later this month.
In January, a jury found Holmes guilty of four counts of defrauding investors in the now-defunct Palo Alto blood-testing startup she founded in 2003 at age 19. The company, Theranos, went under in 2018 after the charismatic Holmes and her former lover , the firm’s chief operating officer Sunny Balwani, were charged with fraud. The case attracted world-wide attention, and has spawned three documentaries, a TV series, a best-selling book, and an upcoming movie starring Jennifer Lawrence as Holmes. Balwani was found guilty in July on a dozen fraud counts.
Holmes’ first motion Wednesday, claiming federal prosecutors used arguments in Balwani’s trial that would have led jurors in her trial to acquit her, could be counterproductive, said Stanford Law professor Robert Weisberg. “There is no formal legal error in presenting arguably inconsistent evidence or characterizations of defendants in separate sequential trials,” Weisberg said. “As a general matter each conviction stands on its own. I could… imagine Davila being annoyed by this. “
However, Davila, who presided over Holmes ‘four-month trial, is likely to take seriously the second motion Holmes’ legal team filed Wednesday, legal experts said. Her lawyers claim the prosecution broke the “Brady rule” legally requiring prosecutors to hand over information helpful to the accused.
Holmes’ prosecutors hid emails showing they failed to preserve a database of patient test results, her team alleged. The database issue, after hours of pre-trial squabbling over who was responsible for the disappeared data and whether it showed or disproved fraud, did not rise to prominence in Holmes’ trial. And although the motion might not sway Davila, the allegation that the prosecution concealed important information could play better on appeal, Clark said.
“Brady violations are something that the appellate courts do not like,” Clark said.
Still, it’s Holmes’ motion filed Tuesday and claiming a key prosecution witness showed up at her home that could offer her more immediate hope, legal experts said.
Former Theranos lab director Dr. Adam Rosendorff, who told Holmes ‘jury that the company “valued PR and fundraising over patient care” and that he had felt a moral obligation to go public about inaccurate test results, rang Holmes’ doorbell last month appearing desperate and disheveled, pleading to speak with Holmes, according to a declaration by Holmes’ partner Billy Evans.
“He said he wants to help her,” said Evans, the father of Holmes 1-year-old son, in the declaration. “He said lui he feels guilty. He said he felt like he had done something wrong. ” Rosendorff, according to the declaration, told Evans that on the witness stand, “he tried to answer the questions honestly but that the prosecutors tried to make everybody (in the company) look bad” and that prosecutors “made things sound worse than they were . “
Former prosecutor Clark called the motion “a very bizarre development,” adding, “I don’t know if I’ve ever seen something like that in my career of 35 years.”
Legal experts agreed Rosendorff’s purported statements are likely to compel Davila to hear from the former lab director, but the outcome is far from certain. It’s not uncommon for witnesses to feel badly for testifying against someone they know, defense lawyer Cohen said.
“It’s not clear to me that he is saying that he gave false testimony or that the government pressured him in such a way that he gave false testimony,” Cohen said.
Clark said the motion appeared to have some merit.
“It’s very concerning that (Rosendorff is) now expressing remorse about his testimony,” Clark said. But “The question will be not ‘Does Dr. Rosendorff have some remorse about his testimony of him?’ but whether his testimony di lui was inaccurate or incomplete in part because of the government pressuring him. “
A hearing would require considerable preparation from both sides in the case, Clark said, and would “likely delay Ms. Holmes’ sentencing.”