Theranos founder Elizabeth Holmes is trying to turn a visit to her home this summer by a key prosecution witness into a “ticket to a new trial,” prosecutors claim.
Convicted by a jury in January for defrauding investors in her now-defunct Palo Alto blood-testing startup, Holmes is scheduled to be sentenced Oct. 17 on four felony counts. Legal experts anticipate Holmes, 38, will receive a multi-year prison sentence. But recent court filings and a judge’s order have thrown that sentencing date into doubt.
Earlier this month, Holmes filed a flurry of motions in U.S. District Court in San Jose to have the jury’s verdict thrown out and order a new trial.
In one of those bids, Holmes’ legal team claimed that the appearance at her home by former Theranos lab director Dr. Adam Rosendorff, and his statements to Holmes’ partner Billy Evans, provided “new evidence” requiring a second trial.
In testifying against Holmes, Rosendorff had told the jury that Theranos “valued PR and fundraising over patient care,” and that he felt “obligated from a moral and ethical perspective to alert the public” about inaccurate test results. In response, a lawyer for Holmes sought to pin problems at the company on Rosendorff’s alleged “incompetence.”
Holmes, in a motion filed earlier this month, said a disheveled and apparently remorseful Rosendorff drove up to her home last month and talked to Evans, with whom she has a young child. According to a memo from Evans filed in court, Rosendorff said he felt “guilty,” and “like he had done something wrong.” The doctor purportedly told Evans that while 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 the prosecution “made things sound worse than they were.”
Holmes’ motion also said that if the judge declined to order a new trial based on Rosendorff’s purported statements, he should at least hold a hearing “to determine the meaning of Dr. Rosendorff’s statements and to determine whether any government misconduct occurred.”
On Sept. 21, federal government prosecutors fired back with a motion, accompanied by a sworn declaration by Rosendorff stating that he feels “compassion” for Holmes, and “even more” for her family members who would be affected by her punishment. But, he added that he had answered every question on the witness stand “completely, accurately and truthfully” and stands by his testimony.
“I have no reason to believe that the government misrepresented or otherwise created a misimpression about Ms. Holmes’ … conduct at Theranos,” Rosendorff wrote.
That declaration, prosecutors argued, show there is no basis for a new trial, or even for a hearing that could involve Evans describing Rosendorff’s visit.
The prosecution also filed responses attacking Holmes’ two additional motions seeking a new trial. In one, Holmes claimed prosecutors used arguments in the trial of her co-accused, former Theranos chief operating officer Sunny Balwani that would have led jurors in her trial to acquit her. In another, Holmes claimed prosecutors hid emails showing they failed to preserve a database of patient test results, breaking the “Brady rule” that legally requires prosecutors to hand over information helpful to the accused.
“Holmes has chosen to belatedly assert claims for a new trial … mere weeks before her sentencing date,” prosecutors wrote in their response to Holmes’ motions. Judge Edward Davila, prosecutors argued, should “reject any ploy to delay her inevitable sentencing” and “deny her eleventh-hour barrage” of motions.
Holmes based the Balwani motion on statements by prosecutors in Balwani’s trial that described him as “older and more experienced” than her, with “a lot of influence” over her. Holmes’ prosecutors countered that the prosecution’s argument in the Balwani trial was “entirely consistent” with Holmes’ conviction, with evidence showing “the two worked in tandem, wielded the most power and control within Theranos, communicated constantly, and had the ability to influence one another.”
Holmes was convicted of conspiring with Balwani to defraud investors. In a separate trial, Balwani was convicted of fraud, and of conspiring with Holmes.
The prosecution’s motion on the patient-information database — which dismantled by Theranos after it gave prosecutors an encrypted copy without an access key — argued that Holmes in her trial made a strategic choice not to defend herself by arguing over who was responsible for the missing data.
Legal experts said Holmes’ motions were likely intended to at the very least delay her sentencing even if they did not get her a new trial, and to lay grounds for appeal.
Former Santa Clara County prosecutor Steven Clark said that an order Tuesday by Davila to cancel a hearing on Holmes’ three motions, and instead hold a status conference via video, suggests the judge plans to schedule a hearing on the motion concerning Rosendorff, likely delaying Holmes’ sentencing by a month or two.
“It’s potentially mission accomplished for the defense if the goal is to move the sentencing date,” Clark said.
