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Elizabeth Holmes’s Combined Verdict May Handicap an Attraction, Legal professionals Say

Elizabeth Holmes’s Combined Verdict May Handicap an Attraction, Legal professionals Say

Elizabeth Holmes’s

conviction on 4 counts of fraud for deliberately deceiving Theranos Inc. traders is much from the top of the startup founder’s authorized battle.

As a substitute, the Jan. 3 verdict is predicted to kick off a brand new spherical of authorized maneuvering that may give her attorneys a number of probabilities to clear her identify, and to proceed to deploy what authorized observers say is an intransigent protection technique that turned the workforce’s signature through the monthslong trial. One tactic will probably contain requesting that Ms. Holmes stay free on bail for everything of the enchantment course of, which might take years.

Along with the responsible verdicts, the jury acquitted Ms. Holmes of 4 fraud counts associated to Theranos sufferers and deadlocked on three investor counts.

Ms. Holmes’s attorneys at Washington agency Williams & Connolly LLP have already signaled their plans to ask the trial decide to throw out the conviction or grant a brand new trial, two steps which might be routine and that criminal-defense attorneys say are an extended shot. If these fail, Ms. Holmes can enchantment to the next court docket.

The decision coming again combined might harm Ms. Holmes’s probabilities on enchantment, protection attorneys mentioned, as a result of it’s more durable to argue the jury didn’t know what it was doing or that an error within the case unfairly biased jurors.

“The cut up nature exhibits nothing the decide did was prejudicial and would have affected the result of the trial,” mentioned Harry Sandick, a white-collar protection lawyer in New York with Patterson Belknap Webb & Tyler LLP who isn’t concerned within the case.

Christine Wong, a former federal prosecutor and now a companion at Morrison & Foerster LLP in San Francisco, mentioned, “The combined verdict truly speaks to how cautious the decision actually was. They actually matched up the proof towards the particular claims.”

Discovering one or two errors in a case associated to proof typically isn’t sufficient to win an enchantment, Ms. Wong mentioned, as a result of the upper court docket can resolve there was sufficient proof in favor of the conviction that the errors didn’t matter.

Attorneys for Ms. Holmes didn’t reply to requests for remark. A consultant for the U.S. legal professional’s workplace within the Northern District of California declined to touch upon any doable enchantment.

Kevin Downey and John Cline have been attorneys for the protection within the fraud trial of Elizabeth Holmes.



Photograph:

Nick Otto for The Wall Road Journal

Appeals can typically be a seize bag of each doable argument in favor of overturning a verdict, criminal-defense attorneys mentioned. That’s more likely to embrace difficult proof that was let in or excluded over the objections of Ms. Holmes’s attorneys and elevating questions in regards to the directions given to jurors.

New info usually can’t be launched in an enchantment. As a substitute, it is a chance to have the upper court docket assessment the underlying case to search for any procedural errors or different points with the method that might have unfairly affected the result.

Ms. Holmes’s attorneys took steps through the trial to put the groundwork for an enchantment. Exterior of the view of the jurors, her protection routinely filed motions difficult the scope of witness testimony and made repeated makes an attempt to exclude sure proof, together with a scathing 2016 regulatory report. When the federal government accomplished its case with out calling a witness from the regulator, the Facilities for Medicare and Medicaid Providers, Ms. Holmes’s attorneys argued that the report was “harmful with out context from its authors.”

The federal government fought every protection request, and it appeared to develop significantly aggravated on the third failed try by Ms. Holmes’s facet to confess into proof buyer evaluations from

Walgreens

WBA 2.67%

sufferers who took Theranos blood checks.

U.S. District Choose

Edward Davila’s

dealing with of the case earlier than and through the trial additionally provides fewer grounds for an enchantment, attorneys observing the trial mentioned. He typically cut up the distinction in his rulings, giving prosecutors sufficient leeway to make their case whereas additionally at instances showing deferential to Ms. Holmes and her authorized workforce, observers mentioned.

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The jury of retirees, authorities workers, and retail and technology-industry employees adopted the decide’s directions rigorously and examined proof underpinning every of the counts for greater than 50 hours earlier than reaching a call, in keeping with jurors reached after the decision.

“We actually have been methodically, painstakingly going via every witness, wanting via our notes, refreshing our reminiscences, pulling out the details they made,” mentioned Susanna Stefanek, a 51-year-old editorial supervisor at Apple Inc. who was a juror.

Prosecutors efficiently argued over 15 weeks of trial that Ms. Holmes misled traders about Theranos’s expertise, together with by mendacity in regards to the capabilities of its proprietary finger-prick blood-testing units and falsely claiming Theranos had deep relationships with pharmaceutical corporations. Jurors mentioned they weren’t persuaded by proof making an attempt to indicate Ms. Holmes defrauded sufferers, and the 4 acquitted affected person counts received’t determine into an enchantment.

Sophisticated fraud and corruption convictions do typically get overturned. The U.S. Supreme Court docket in 2020 threw out a pair of public-corruption convictions within the New Jersey scandal often known as Bridgegate, discovering the retribution scheme to cripple Fort Lee, N.J., with site visitors jams didn’t represent federal fraud.

A federal jury convicted Theranos founder Elizabeth Holmes on 4 of 11 criminal-fraud fees. Every rely carries a most jail sentence of 20 years. WSJ’s Sara Randazzo shares highlights from Holmes’s testimony. Photograph: Josh Edelson for The Wall Road Journal

In different situations, success on enchantment nonetheless wasn’t the top. Former New York state Meeting Speaker

Sheldon Silver

had a federal-court public-corruption conviction thrown out on enchantment, however he was convicted once more at a retrial on the identical crimes and sentenced in 2018 to seven years in jail.

Kevin Downey, certainly one of Ms. Holmes’s lead attorneys, mentioned in court docket after the decision Jan. 3 that he needed to see what the federal government determined to do in regards to the three counts that led to a mistrial earlier than committing to a timeline for submitting the protection’s post-trial motions. Choose Davila mentioned a listening to could possibly be scheduled within the coming days to debate the hung counts, however no date has been set.

When the federal government rested its case on Nov. 19 after 29 witnesses, a lawyer for Ms. Holmes instantly stood up and expressed her intention to file what is called a Rule 29 movement, which asks the decide to seek out in favor of an acquittal. On the time, the lawyer,

Amy Saharia,

a companion at Williams & Connolly, mentioned solely that “the proof offered by the federal government is inadequate on each aspect of each rely.”

Mr. Downey mentioned after the decision that protection attorneys additionally plan to file a Rule 33 movement, which asks for a brand new trial primarily based on errors that deprive the defendant of the appropriate to a good trial. He didn’t specify the explanations.

If Choose Davila rejects these two motions and decides to maintain the jury’s 4 responsible counts in place, Ms. Holmes’s protection workforce can file an enchantment with the Ninth U.S. Circuit Court docket of Appeals. That may’t occur, nevertheless, till a ultimate judgment is entered, a step that takes place as soon as Ms. Holmes is sentenced, probably a number of months from now.

After sentencing, Ms. Holmes will be capable to ask Choose Davila to maintain her out on bail pending an enchantment, a request that protection attorneys say has a good probability of being granted in a fraud case like this one, until she is sentenced to a prolonged jail time period. Such requests hinge on arguing the enchantment raises a considerable query of legislation or truth more likely to lead to a brand new trial or the decision being overturned.

No sentencing date has been set but, although Choose Davila indicated he was leaning towards ready till after the approaching trial of Ms. Holmes’s former deputy, Ramesh “Sunny” Balwani. Mr. Balwani has pleaded not responsible.

That trial is at present scheduled for February, although the Northern District of California not too long ago suspended all trials for a number of weeks due to Covid-19 considerations. At a Friday listening to held over teleconference, Choose Davila mentioned the brand new restrictions will probably push again Mr. Balwani’s trial till March.

Theranos and the Elizabeth Holmes Trial

Write to Sara Randazzo at sara.randazzo@wsj.com

Copyright ©2022 Dow Jones & Firm, Inc. All Rights Reserved. 87990cbe856818d5eddac44c7b1cdeb8

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