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Is Elizabeth Holmes Just Delaying the Inevitable?

Should Elizabeth Holmes get a new trial, or is she just trying to delay the inevitable?

Amanda Pedersen

September 22, 2022

4 Min Read
Theranos founder Elizabeth Holmes leaving the courthouse with her family on Jan. 3, 2022, after being convicted on four
Image courtesy of ZUMA Press, Inc. / Neal Waters / Alamy Stock Photo

Federal prosecutors are calling Elizabeth Holmes out on her last-ditch effort to avoid jail time.

Earlier this month, the disgraced Theranos founder filed two requests for a new trial. The first request notes that a key witness for the prosecution now regrets his role in her conviction, while the second request argues that the government "adopted a new narrative" during Ramesh "Sunny" Balwani's trial. The government filed its response to these requests on Wednesday, calling the motions a "ploy to delay her inevitable sentencing."

A hearing on these motions is scheduled for October 3.

Holmes was convicted in January on four charges of defrauding investors and conspiring to defraud investors. Her sentencing is currently scheduled for October 17. Balwani, Holmes' ex-boyfriend and former chief operating officer at Theranos, was convicted in July on all 12 criminal charges against him. His sentencing is scheduled for November 15. The key difference in the outcomes of the two trials is that Holmes was cleared on charges of defrauding patients, while Balwani was found guilty on 10 counts of wire fraud and two counts of conspiracy for defrauding Theranos investors and patients.

On September 6, Holmes filed a petition for a new trial based on the reliability of testimony provided by former Theranos lab director Adam Rosendorff. Rosendorff, who testified during Holmes' trial that he repeatedly raised concerns about the accuracy of blood tests being administered to patients during his time at the failed startup, is now expressing regrets about his testimony, according to the 17-page court document.

The very next day, Holmes' attorneys filed a second request for a new trial, this time focusing on the way that the government portrayed her relationship with Balwani during his trial.

"During Mr. Balwani's trial, the government adopted a new narrative," the filing reads. "It elicited testimony about the difference in age and experience between Ms. Holmes and Mr. Balwani, and it introduced some of the same text messages that Ms. Holmes had introduced at her trial to exemplify Mr. Balwani's control and influence. From this evidence, the government argued to the jury in closing arguments that Mr. Balwani's 'close relationship with Ms. Holmes would have given him a lot of influence over her,' and that his 'input would carry a lot of weight with her'."

The request goes on to argue that the government's statements in closing arguments during Balwani's trial reflect "a dramatic shift" in its position about the nature of Holmes' relationship with Balwani, and that if the government had tried Balwani first, Holmes could have admitted the government's prior statements at her trial.

"Doing so would have fundamentally changed the government's evidence about the existence of a criminal conspiracy and the role Mr. Balwani played at the company with respect to representations made to potential investors," Holmes' attorneys argued in the filing.

That probably would have resulted in an acquittal on the counts of conviction, according to the filing.

CBS News reported on Wednesday that Assistant U.S. Attorney Kelly Volkar urged U.S. District Judge Edward Davila to deny the motions for a new trial outright, without the evidentiary hearing Holmes has requested. Volkar argued that even if Holmes' motions are ultimately denied, the hearing alone would likely require sentencing to be pushed back because it would involve witness testimony.

Former Theranos lab director stands by his testimony

Theranos lab director Adam Rosendorff (right) stands outside of the Robert F. Peckham U.S. Courthouse after speaking on the stand during the Theranos trial, in San Jose, California, U.S., October 6, 2021

Adam Rosendorff (left), former Theranos lab director, stands outside of the Robert F. Peckham U.S. Courthouse after taking the stand during Elizabeth Holmes' trial, in San Jose, California, U.S., Oct. 6, 2021.

Rosendorff, the former Theranos lab director whose testimony has now been called into question, signed a sworn declaration on September 15 that he answered all questions truthfully at trial, and that he stands by his testimony. During Holmes' trial, Rosendorff took the stand on Sept. 24, 2021, and testified for about two days of direct examination by the government and about four days of cross-examination by the defense. He also took the stand during Balwani's trial on April 20, 2022, and testified for about one day of direct examination and about a day and a half of cross-examination by the defense.

"Nothing I have learned since giving my testimony has changed my recollection of the events I witnessed during my time at Theranos," Rosendorff stated. "I stand by my testimony at Ms. Holmes' and Mr. Balwani's trials in every respect."

Rosendorff also states that he has no reason to believe the government misrepresented or otherwise created a misimpression about Holmes' or Balwani's conduct at Theranos.

"Nevertheless, I feel compassion for Ms. Holmes and Mr. Balwani, and even more so for the members of their families who were not responsible for their conduct but will be affected by the punishment they may receive."

About the Author(s)

Amanda Pedersen

Amanda Pedersen is a veteran journalist and award-winning columnist with a passion for helping medical device professionals connect the dots between the medtech news of the day and the bigger picture. She has been covering the medtech industry since 2006.

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