In Elizabeth Holmes Trial, U.S. Gave Sufferers a Small Stage

However the sufferers themselves barely featured within the practically four-month trial. Simply three sufferers testified out of 29 witnesses introduced by the U.S., spending a mixed 65 minutes on the stand, far lower than 1% of the entire time spent on witness testimony.

The federal government was compelled to drop one affected person rely after making a clerical error in a doc. Prosecutors didn’t tie Ms. Holmes on to Theranos’s advertising and marketing efforts to draw sufferers, a central part of the fraud expenses. And the U.S. failed to realize entry to a database of Theranos affected person information that would have helped its case.

Of their questioning, prosecutors did little to tie the sufferers’ allegedly inaccurate take a look at outcomes to Ms. Holmes’s claims concerning the firm. Sufferers weren’t requested about particular Theranos ads or public claims by Ms. Holmes. One alleged sufferer, retired dentist Mehrl Ellsworth, testified for simply 9 minutes. On Tuesday, he mentioned he’d anticipated Ms. Holmes can be discovered responsible of the affected person fraud counts, however felt no private animosity towards her.

“I’m dissatisfied however not shocked in any respect,” Sheri Ackert, one in every of not less than eight sufferers the federal government recognized as a possible witness earlier than the trial, however by no means known as, mentioned Tuesday. “It seems all of it boiled right down to cash,” mentioned Ms. Ackert, who acquired an inaccurate hormone take a look at one in every of her medical doctors apprehensive may very well be an indication of most cancers.

Attorneys for Ms. Holmes and a spokesman for the U.S. lawyer’s workplace for the Northern District of California didn’t reply to requests for remark Tuesday.

Ms. Holmes was charged with 11 counts of conspiracy and fraud—seven associated to the buyers and 4 associated to sufferers. She was convicted Monday of 4 investor expenses, and acquitted of all patient-related counts. A jury deadlocked on the remaining three expenses.

Proving that Ms. Holmes defrauded sufferers is “more difficult as a result of you possibly can’t present she immediately communicated with them and meant to defraud them,” mentioned Barbara McQuade, a legislation professor on the College of Michigan and former federal prosecutor.

But the sufferers’ testimony “confirmed the numerous hurt and threat” Ms. Holmes “was keen to undertake to be able to defraud buyers,” Ms. McQuade mentioned.

“The investor fraud counts would carry the biggest part of any sentence,” she added. “Together with the sufferers within the case was most likely vital strategically, however not that vital by way of the implications.”

One affected person Ms. Holmes was charged with defrauding, Phoenix resident Brent Bingham, traveled to San Jose, Calif., to testify, however by no means entered the courtroom. Authorities legal professionals made a clerical error mixing up one blood-test acronym in a authorized doc that spelled out which exams had been a part of the federal government’s case, main the decide to dam his testimony on the final minute.

“I believed I’d be an actual good witness,” mentioned Mr. Bingham. “I can ship some details. Not rumour.”

On Tuesday, Mr. Bingham mentioned he believed the decision “missed the elemental level of the entire thing”—that Theranos erroneously claimed its revolutionary know-how would assist sufferers.

Why the jury of eight males and 4 ladies selected to clear Ms. Holmes of the patient-fraud expenses is unknown. The jurors declined to remark as they left the courthouse Monday night and didn’t reply to cellphone messages or couldn’t be reached later.

From the start, cracks surfaced within the prosecution’s case for fraud expenses stemming from the sufferers’ inaccurate take a look at outcomes.

A few weeks earlier than Ms. Holmes and her former romantic and enterprise associate, Ramesh “Sunny” Balwani, had been indicted in June 2018, the federal government subpoenaed a replica of Theranos’s proprietary lab-result database, known as the “Laboratory Info System.”

Mr. Balwani has denied the fees and faces a separate trial scheduled for subsequent month. His lawyer declined to remark.

The database was purported to be the important thing to prosecutors’ skill to unearth detailed issues with the corporate’s testing platform—and the sufferers its errors affected. However in August 2018, simply days after the federal government acquired a replica on an exterior arduous drive, Theranos officers destroyed your entire database and a few weeks later, dissolved the corporate.

The federal government later realized {that a} passcode wanted to utilize their arduous drives was lacking. A forensic skilled decided the federal government couldn’t get well the information with out it.

A separate grand jury investigation analyzing whether or not the database’s deletion amounted to felony obstruction of justice by Theranos officers—who had swapped emails concerning the lacking password within the weeks earlier than its destruction—hasn’t resulted in expenses, in accordance with court docket filings and other people aware of the matter. The standing of that investigation couldn’t be decided. Theranos ceased to exist when the investigation was launched, and former Theranos officers haven’t commented on it.

Ms. Holmes’s protection staff, led by companions on the Washington legislation agency Williams & Connolly LLP, additionally chipped away on the authorities’s indictment, profitable in early 2020 an order from U.S. District Choose

Edward Davila

that considerably pared the patient-related expenses.

Choose Davila discovered gaps within the authorities’s logic, noting that its indictment alleged fraud towards medical doctors who didn’t seem to have misplaced any cash, and towards insured sufferers who acquired inaccurate outcomes—however not the insurers who really paid the payments. He threw out expenses associated to any affected person whose insurance coverage coated their exams.

Earlier this yr, Choose Davila handed one other partial victory to Ms. Holmes’s legal professionals on the affected person entrance.

The protection staff argued forward of trial that testimony concerning the impression of inaccurate take a look at outcomes may very well be excessively inflammatory, and that anecdotal examples had been irrelevant to the case. Ms. Holmes’s legal professionals argued that the U.S.’s failure to protect the database Theranos itself had destroyed meant Ms. Holmes couldn’t entry information which may have been exculpatory.

Choose Davila dominated that sufferers may testify about their outcomes, however barred the prosecution from dredging up proof “referring to the impression or potential impression on clients of inaccurate take a look at outcomes.”

That was a serious win for Ms. Holmes’s staff, mentioned Neama Rahmani, a Los Angeles lawyer and former federal prosecutor. “When you’re a juror you wish to see and really feel and listen to a sufferer—and if you don’t have that, that’s a problem,” Ms. Rahmani mentioned.

What the jury heard as a substitute was largely dry testimony concerning the particulars of Theranos outcomes. When affected person Erin Tompkins described a consequence suggesting she may very well be HIV-positive from the witness stand, the closest she got here to addressing its toll was to say she “was fairly emotional on the time.”

Mr. Bingham, the affected person who traveled to San Jose however by no means testified, was the form of affected person Theranos focused in its ads promising quick, simply accessible, reasonably priced outcomes.

The veteran rock climber and high-desert outdoorsman mentioned he takes blood exams as usually as weekly to observe the rely of platelets in his blood to attempt to management a situation that would result in a stroke or coronary heart assault if left unchecked.

He mentioned he had 4 blood exams from Theranos in 2015, and instantly suspected the excessive outcomes had been inaccurate. He mentioned he had the identical take a look at accomplished at one other lab, which produced regular outcomes.

4 days after one in every of his exams, Mr. Bingham acquired an electronic mail from Theranos saying “he could also be having a medical emergency,” in accordance with a abstract of his interview with the federal government.

Mr. Bingham mentioned he ignored the letter.

Whether or not Mr. Bingham’s testimony would have strengthened the federal government’s case towards Ms. Holmes or swayed the jury is unattainable to know. He mentioned he wasn’t harmed by the incorrect outcomes and isn’t indignant about them.

He mentioned he known as Theranos, however “I by no means received a proof.”

Write to Christopher Weaver at christopher.weaver@wsj.com and Heather Somerville at Heather.Somerville@wsj.com