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The Courts Biotech

Theranos Founder Elizabeth Holmes Requests a New Trial (gizmodo.com) 96

Posted by BeauHD from the do-over dept.
Elizabeth Holmes -- the founder of blood testing startup Theranos and the poster child for misleading investors, media, and innocent people looking for medical care through a web of deceit -- wants a do-over. She is requesting a new trial, according to a document filed Tuesday in the Southern District Court of California. Gizmodo reports: The motion for a new trial, authored by Holmes' attorneys, hinges on "newly discovered evidence," specifically: the alleged testimony regrets of Adam Rosendorff. Rosendorff was a lab director at Theranos and later, testified as a key witness in the case against Holmes and her ex-boyfriend/partner in crime Ramesh "Sunny" Balwani. His original testimony lasted multiple days and emphasized the pressure that Theranos employees were under to demonstrate the faulty diagnostic technology worked, even when it didn't.

"I felt that it was a question on my integrity as a physician not to remain there and to continue to bolster results I essentially didn't have faith in," Rosendorff said while on the witness stand in 2021, according to CNBC. "I came to understand that management was not sincere in diverting resources to solve issues." Now, Holmes and her lawyers are claiming that Rosendorff left a voicemail and then showed up at Holmes' residence on August 8 in a desperate bid to communicate that he "felt he had done something wrong, apparently in connection with Ms. Holmes' trial." The motion, supposedly paraphrasing Rosendorff, says that the former Theranos employee stated, "the government made things seem worse than they were."

In the document, Holmes' legal team wrote, "Under any interpretation of his statements, the statements warrant a new trial under Rule 33. But, at a minimum, and to the extent the Court has any doubt about whether a new trial is required, the Court should order an evidentiary hearing and permit Ms. Holmes to subpoena Dr. Rosendorff to testify about his concerns." Holmes was found guilty in January on four of 11 charges defrauding the company's investors and patients. She was found not guilty on four counts.

In July, Balwani was found guilty of 12 counts of conspiracy and fraud against certain investors and patients.
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Theranos Founder Elizabeth Holmes Requests a New Trial More

Theranos Founder Elizabeth Holmes Requests a New Trial

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  • and a Special Master to make sure the evidence wasn't planted too, right?

  • yes and no (Score:5, Insightful)

    by v1 ( 525388 ) on Tuesday September 06, 2022 @08:52PM (#62858524) Homepage Journal

    On one hand it's irritating to always see criminals try "every trick in the book" to escape justice. It seems like an abuse of the justice system.

    But on the other hand, these "safeties" exist for a reason and I'd be extremely thankful for them in the event I ever needed to use one.

    It's one of those "I completely disagree with what you're saying, but I will fight for your right to say it" commends often made in cases of freedom of speech.

    We can only hope that one day, eventually, justice is served.

    • Re:yes and no (Score:5, Insightful)

      by RazorSharp ( 1418697 ) on Tuesday September 06, 2022 @09:02PM (#62858540)

      What's irritating is that the wealthy have access to a bigger book of tricks than the poor.

      • well, the wealthy also have better cars, homes, clothes, food, vacations than the poor as well, that is the reason to get wealthy - to be able to afford more.

      • We all have access to the same book, the wealthy know how to use it better to their advantage. Now, White people, especially white women, have access to a bigger book.

      • "Honesty is a very expensive gift, Don't expect it from the cheap" --Warren Buffett (b. 1930)

    • "the government made things seem worse than they were."

      Thats the prosecutions entire job, to make their case as strongly as possible without fabrication.

      Its the defences job to shoot down the prosecutions assertions - why didn't they do that during the trial? Why didn't they ask Rosendorff "is the prosecution overstating the seriousness of the situation?"

      So long as Rosendorff did not lie under oath, there should be no case here to answer. And it doesn't seem that he is saying he lied under oath, it seems

      • Re: (Score:2)

        by kenh ( 9056 )

        Thats the prosecutions entire job, to make their case as strongly as possible without fabrication.

        But we're watching the FBI 'leak' staged photos of purported evidence to bolster their case outside the courtroom. The photo of documents splayed across a table was staged, created to sway public opinion, not capture what agents saw at Mar-A-Largo.

        Creating & leaking staged photos brushes right up against "fabrication" in most people's minds.

    • She screwed over the 1% (Score:5, Insightful)

      by rsilvergun ( 571051 ) on Tuesday September 06, 2022 @09:22PM (#62858590)
      She's not going to get away with it. She made fools of people who have real money. If she had just stuck the small investors the way, say, Donald Trump does she would have gotten away with it just fine. Just like Madoff she was finished the moment the actual ruling class bought into her scam.

      One of the most critical things the people at the top have to do is keep us from realizing how incredibly stupid and incompetent they are. They didn't get where they are through intelligence it was a combination of ruthlessness, dumb luck and well to do parents. If the average person ever realizes that there's nothing special about the 1% and the prosperity Gospel is a lie it's going to be the single greatest leap Forward in human civilization since the invention of the wheel and fire

      • Re: (Score:3)

        by RobinH ( 124750 )
        The ruling elite still got something of value: a photo op beside an up-and-coming female tech genius. Anyone who scoffed at her claims was labeled a bigot. Supporting her was cheap virtue signaling. Hopefully future versions of Theranos will get a little more scrutiny.

    • We can only hope that one day, eventually, justice is served.

      The purpose of a trial is often determine which one has the better lawyer. And to the surprise of no one, that usually means the side with more money.

      • Re: (Score:2)

        by kenh ( 9056 )

        Holmes has more money than the Feds?

        • Probably yes in this case. Lawyers like everyone else tend to have the best in class go for best money. Do you think Fed prosecutors are paid more than private firms?

          • The government has infinite resources, prosecutors may be paid less than Holmes' attorneys, but the government can literally hire an army of prosecutors...

            • No they cannot. You keep thinking government has infinite resources. They do not. Holmes has the creme de la creme of lawyers. The ones that get paid unbelievable sums. They are good, very good. I worked with some lawyers in several technical lawsuits/criminal trials. I was stunned at how rapidly they picked up very technical concepts. Like better than most of the engineers I've worked with. They were also getting 600/hr back in the 90's. Just like in software, having 100 mediocre programmers is not as valu

    • The average person will not be able to afford these "safeties".

      Unless you got a pile of money to pay for decent lawyers, you will not be getting all these being done.

  • Where is he when you need him?
    Can an imprisoned lawyer represent a client?

  • Because the samples of her actions were too small?

    • She learned something from the other crooks that we call politicians. Call votes 'til the outcome is what you want because eventually the other side wears down.

  • Don't worry Dear, Daddy will hire a better lawyer and we'll do it over again.

  • ...so that she has time to take better acting classes? It wasn't enough being an attractive, blonde woman who is also a new mother.

    That cynicism out of the way, I do wonder about one thing: It is not normal for CxOs to actually go to jail for their crimes. Most get off with a slap on the wrist, if even that. Why is she being singled out for actual justice?

  • This is a weird one (Score:5, Interesting)

    by chx496 ( 6973044 ) on Wednesday September 07, 2022 @03:12AM (#62859028)

    Well, this is a weird one, because Holmes hasn't even been sentenced yet. According to Wikipedia sentencing is scheduled for October 2022 [wikipedia.org]. The trial so far has only determined whether the jury has considered her guilty or not, not how much she should be punished. They did find her guilty (beyond a reasonable doubt) on some of the charges, but not guilty on some others. (And on some of them a mistrial was declared because the jury didn't reach a verdict, and the government declined to retry those charges.)

    If Rosendorff did indeed show up at Holmes's house claiming that the government made things seem worse than they were, I'm not really sure how to take this. I can see two scenarios: one where Rosendorff himself was much more culpable in the entire matter than previously assumed, and he's now feeling guilty that Holmes (and Balwani) are on the receiving end of the justice system, but not him. The other scenario is that after the jury verdict came in, the maximum prison sentence (which Holmes is unlikely to get) was covered by the media, and he feels guilty by participating in the trial for that reason, because he doesn't think she deserves to go to prison (or at the very least not for that long).

    In any case, I'd be very surprised if the judge grants the motion for a new trial, because on the face of it I would interpret the sentence the government made things seem worse than they were as pertaining to the degree of culpability, not on the question of culpability in general. However, since sentencing hasn't happened yet, I think it would be reasonable for the court to delay sentencing a bit, and to go back to Rosendorff to ask him what he meant by those statements. I'm not a lawyer, and I don't know if there are any procedural issues that would prohibit this, but I do think this would be the right thing to do. Then the court can make a decision, depending on the response of Rosendorff, possibly letting that influence the sentence.

    And if there really was a bombshell in the new testimony of Rosendorff (something like "I completely lied" because $reasons), then the court could still decide for a new trial at that point. I find that outcome extremely implausible though, I highly doubt that anything Rosendorff has to say would overturn the existing guilty verdicts.

    I can't fault Holmes's lawyers though - it's their job to zealously advocate for their client, and a new trial is a possible remedy when new evidence comes to light (that the defense couldn't have known during the trial), so of course they're going to ask for one, if only to make their alternative requests seem more reasonable. (Of course both the prosecution and the judge will know how that as well.)

    • The time to address exactly what was meant by those statements was during the dispositions and trial where the statements in they way they were made were established as fact. Not having done so during the trial meant that either the lawyers weren't doing their job or some external factor has caused Rosendorff to have a change of heart since the verdict and wanting to change the actual statements. I would suspect some kind of payment was made or some other incentive/pressure put on him which really is bord

      • Re: (Score:3)

        by chx496 ( 6973044 )

        Not having done so during the trial meant that either the lawyers weren't doing their job or some external factor has caused Rosendorff to have a change of heart since the verdict and wanting to change the actual statements. [...]

        I don't think that the following scenario is completely implausible: Rosendorff lies during the trial to make himself look better (and the defense did ask him about that but he simple didn't tell the truth), but now reads in the media that Holmes could face up to 20 years in prison, and is now racked with guilt, so he shows up at Holmes's home and says what is claimed here.

        I'm not saying that's what happened, and I'm not saying that this is even the most likely explanation (I think it's not by a long shot)

    • Re: (Score:2)

      by kenh ( 9056 )

      An evidentiary hearing seems appropriate, don't blow up the case, but explore a reasonable claim by a key witness.

    • It doesn't really matter anyway, his legal analysis about the implications of his testimony isn't "new evidence."

      The bombshell I guess is that her lawyers are so desperate to find something to file they filed... this. The judge will likely scold them for presenting this as evidence.

    • " I think it would be reasonable for the court to delay sentencing a bit, and to go back to Rosendorff to ask him what he meant by those statements. I'm not a lawyer, and I don't know if there are any procedural issues that would prohibit this"

      The procedural issue is THE TRIAL IS OVER.

      This issue, if it needs to be resolved, is HAVE A NEW TRIAL.

  • If he left a voicemail and showed up at her place, why is it we're only hearing about it now? The idea that this new evidence miraculously appears AFTER she's been convicted, as well as her ex-boyfriend, and now she's staring down the barrel of a sentencing trial, seems just a little too convenient. So, it seems either the defense was sitting on evidence that may exonerate Holmes, or this is just some bullshit last ditch attempt to stall.

    • Re: (Score:2)

      by jeremyp ( 130771 )

      Because he only came to see her on August 8th this year. i.e. about a month ago.

    • Re:Oh bullshit (Score:4, Informative)

      by mindwhip ( 894744 ) on Wednesday September 07, 2022 @09:49AM (#62859660)

      It is not really new evidence its a change to the way the defence want existing evidence interpreted by the jury after they already came to a lawful verdict. If that was the way Rosendorff actually felt then the defence lawyers should have established that during disposition or trial. The fact it happened AFTER the trial either means incompetence by the lawyers or Rosendorff has somehow been influenced after the trial. The whole point of the trial is to establish facts and the fact is that those statements were made under oath and then accepted as fact during the trial. Trying to argue that the emphasis of the accepted factual statement was wrong isn't new evidence and isn't grounds for a retrial.

  • Perhaps she should battle it out with one of Kardashians.

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