Convicted Theranos fraudster Elizabeth Holmes and her attorneys are again trying to keep her out of prison, this time based on what they say is new evidence from a former Theranos employee and key witness for the prosecution.
Things don't really look good for Elizabeth Holmes getting a new trial from the federal judge, Judge Edward Davila, who has already previously denied requests from her attorneys to toss out her case and toss out her conviction. And as her sentencing date approaches, this could be a sort of Hail Mary on the part of those attorneys to delay or thwart the court's effort to put her behind bars for some length of time.
As the Mercury News reports, the latest filing from Holmes's legal team comes after an alleged August 8 visit to her home by a "disheveled" Dr. Adam Rosendorff, a former laboratory director at Theranos who provided damning testimony against Holmes in her 2021, which concluded just after the new year with her conviction on four counts of fraud.
Holmes's husband Billy Evans allegedly answered the door when Rosendorff drove up to the couple's South Bay home, telling Rosendorff that Holmes wasn't available to speak with him.
"He came to the front door and rang the doorbell,” Evans says in a memo that was filed with the motion. “He is a big guy and my first thought was he was lost, he looked disheveled. His shirt was untucked, his hair was messy, his voice slightly trembled."
Evans said that after turning Rosendorff away, Rosendorff drove the wrong way on the street or the driveway, and Evans went out to his car and spoke to him briefly again.
Per Evans, "He said he wants to help her. He said he is hurting. He said he feels guilty. He said he felt like he had done something wrong. And that this was weighing on him. He said he was having trouble sleeping. He felt desperate to talk to Elizabeth."
According to Evans, Rosendorff further said that prosecutors "made things sound worse than they were when he was up on the stand," and that during the period when Theranos was purportedly defrauding investors and the general public, "everyone was just doing the best they could."
The motion for a new trial comes only days after Davila issued a preliminary ruling denying Holmes's attorneys' motion to toss out her verdict, ruling that the evidence supported Holmes's conviction. Further adding to the scales weighing against Holmes in this legal wrangling is the fact that a separate, completely different jury came to essentially the same conclusion that the jury in her trial did, in convicting her co-founder and former boyfriend Sunny Balwani in July. Balwani was convicted on 12 out 12 of the fraud and conspiracy counts against him — a somewhat worse outcome than what Holmes's jury came back with.
Holmes is due to be sentenced October 17, pushed back three weeks by Judge Davila from an originally scheduled September 26th date.
As SFist reported in January, the maximum amount of time Davila could likely opt for in sentencing Holmes would be 20 years — with four concurrent sentences at the max for fraud, one for each count. But given Holmes's is a new mother, Davila is likely to weigh that against the need to send a message to Silicon Valley about this style of fraud when it comes to startups and investors.
Holmes's attorneys say in their new filing that absent a new trial, Davila should hold an evidentiary hearing to "determine the meaning of Dr. Rosendorff’s statements and to determine whether any government misconduct occurred."
Top image: Former Theranos CEO Elizabeth Holmes goes through a security checkpoint as she arrives at federal court on September 01, 2022 in San Jose, California. Holmes appeared in federal court related to an attempt to overturn her fraud conviction. She is facing jail time after being convicted of four counts of fraud for allegedly engaging in a multimillion-dollar scheme to defraud investors in her company Theranos, which offered blood testing lab services. (Photo by Justin Sullivan/Getty Images)