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Theranos founder Elizabeth Holmes wants a new trial — why that's a 'tall order'

·Reporter
·5 min read

Elizabeth Holmes asked a judge this week to toss a jury’s verdict finding her guilty of defrauding investors in her failed blood-testing startup, Theranos — but legal experts call her efforts a long shot.

In motions filed on Tuesday and Wednesday, Holmes contended that prosecutors failed to turn over materials that would have helped her case. She also contends that new evidence has come to light since her January conviction, including a prosecutor's statements about her co-defendant and post-trial doubts from a key witness for the prosecution.

Three criminal defense attorneys who reviewed Holmes’ arguments say that, based on the court documents alone, Holmes' request is an uphill battle. “A new trial is a tall order," Baker Botts criminal defense attorney Kyle Clark said. "It is really tough to get a new trial ordered.”

The fallen Silicon Valley entrepreneur faces a high-stakes sentencing hearing on Oct. 17 that could land her in prison for more than 20 years. Her company, Theranos, vowed to revolutionize health care by conducting more than 200 diagnostic tests from a few drops of blood, and it counted luminaries such as Henry Kissinger as board members. The company's implosion amid fraud allegations spawned a best-selling book, a podcast, a TV miniseries, and multiple documentaries.

In January, a 12-member jury found Holmes guilty of four of 11 criminal wire fraud and conspiracy charges, saying she misled investors who helped fund her blood-testing startup. Lawyers from the DC-based law firm Williams & Connolly, a globally recognized top litigation firm, represented Holmes during her four-month trial.

One factor that could work against Holmes is that highly skilled attorneys handled her case.

“This sometimes is used against defendants,” Clark said. Prosecutors might highlight the effectiveness of Holmes' counsel, especially their cross-examination of the prosecution’s witnesses.

Theranos founder Elizabeth Holmes becomes emotional as she is asked to read romantic texts between herself and ex-boyfriend Ramesh ?Sunny? Balwani as she is cross examined by prosecutor Robert Leach at Robert F. Peckham U.S. Courthouse during her trial, in San Jose, California, U.S., in this courtroom sketch, November 30, 2021. REUTERS/Vicki Behringer
Theranos founder Elizabeth Holmes becomes emotional as she is asked to read romantic texts between herself and ex-boyfriend Ramesh ?Sunny? Balwani as she is cross examined by prosecutor Robert Leach at Robert F. Peckham U.S. Courthouse during her trial, in San Jose, California, U.S., in this courtroom sketch, November 30, 2021. REUTERS/Vicki Behringer

One of the motions filed this week contends that former Theranos laboratory director, Adam Rosendorff, expressed second thoughts about his testimony while speaking to Holmes' partner, Billy Evans, on Aug. 8. Rosendorff told Evans that "he tried to answer the questions honestly,” according to the motion.

But then prosecutors "made things sound worse than they were when he was up on the stand during his testimony," the motion stated. The motion goes on to say that Rosendorff told Evans that everyone at Theranos was "working so hard to do something good and meaningful."

There's nothing improper about the way the government questioned Rosendorff, Michael Weinstein, a criminal defense attorney with Cole Schotz, says.

"That’s good advocacy," he said. “The government's goal is to present a factually accurate case. Their objective is not to make everybody look like a perfect ideal saint, or an Instagram-ready witness."

Weinstein explains that to get serious consideration of a new trial based on Rosendorff’s purported remorse, Holmes needs more evidence than what’s in her current court filing.

“I think Holmes is going to have somewhat of a difficult time unless Dr. Rosendorff comes out and says I lied, or I testified falsely, which would put him in serious jeopardy with his own problems,” he said. “Based on what they filed already, I don’t see it developing into a new trial.”

University of California Davis School of law adjunct professor George Demos agrees.

“Not a single one of Dr. Rosendorff’s purported statements is an admission that he lied on the witness stand,” Demos says. “The operative question is: Did he lie on the witness stand?”

In another motion, Holmes contends that prosecutors unfairly shifted their stance on her relationship with her co-defendant, former boyfriend, and Theranos COO Ramesh “Sunny” Balwani, who was tried and convicted of fraud separately after Holmes.

During her trial, Holmes argues, prosecutors downplayed the significance of her claims that Balwani abused and manipulated her in order to portray her as Theranos' ultimate decision-maker. Later in Balwani's trial, she says, prosecutors usurped her claims to their benefit, and focused on their 19-year age difference to portray Balwani as someone whose “close relationship with Holmes would have given him a lot of influence over her." The government’s about-face qualifies as new evidence that warrants a new trial, her lawyers argue. Balwani denies Holmes' claims of abuse.

Holmes’ challenges related to Balwani and Rosendorff both need to meet a high standard — that a jury probably would have acquitted her had jurors heard the government’s evidence about the role Balwani played or reliable testimony from Rosendorff.

The motion alleging prosecutorial misconduct has a lower standard; Holmes needs only to show that if prosecutors did conceal relevant evidence, that there's a "reasonable probability" the jury would have reached a different result had that evidence come to light.

Holmes contends the government withheld emails showing prosecutors failed to preserve a Theranos database that housed its test failure rates. That database would have benefited her case, Holmes says, and without it, prosecutors seized an opportunity to rely on anecdotes from patients who said they had inaccurate test results. Prosecutors turned over that same evidence to Balwani, she said.

Holmes further calls into question whether the government committed misconduct by withholding evidence available through Rosendorff by "cherry-picking" for testimony that obscured his full perspective on Theranos.

Holmes and government prosecutors will have an opportunity to argue their positions during a court hearing currently scheduled for Oct. 3. “I think the government's going to come out swinging,” Weinstein said.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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