Elizabeth Holmes’s Mixed Verdict Could Handicap an Appeal, Lawyers Say

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The judge’s attempt to split the difference on the decisions and careful deliberation of the jurors makes it difficult to argue over errors or bias affected results.

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In addition to guilty verdicts, the jury acquitted Ms. Holmes of four fraud counts related to Theranos patients and stalemate on three investor cases.

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Ms. Holmes’ attorneys at the Washington firm Williams & Connolly LLP have already indicated their plans to ask the trial judge to dismiss the conviction or grant a new trial, two steps that are routine and criminal-defense lawyers say. That’s a long shot. If they fail, Ms. Holmes can appeal to the High Court.

Defense lawyers said the mixed return could hurt the prospect of Holmes’ appeal, as it is hard to argue that the jury did not know what she was doing or that the jury was unfairly biased. In case there was an error.

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“The split nature shows nothing that the judge was biased and would affect the outcome of the trial,” said Harry Sandik, a white-collar defense attorney in New York with Patterson Belknap Webb & Tyler LLP. ,

Christine Wong, a former federal prosecutor and now a partner at Morrison & Foster LLP in San Francisco, said, “The mixed verdict really speaks to how careful the verdict really was. They really matched the evidence against specific claims.” “

In a case involving evidence, one or two errors are often not enough to win an appeal, Ms Wong said, because the high court may decide that there was sufficient evidence in favor of a conviction that the errors did not matter.

Ms Holmes’ lawyers did not respond to requests for comment. A representative for the U.S. Attorney’s office in the Northern District of California declined to comment on any potential appeals.

Criminal-defense lawyers said appeals can often be a grab-bag of every possible argument in favor of overturning the verdict. This is likely to include challenging evidence that was omitted or omitted when Ms. Holmes’ lawyers raised questions about the objections and directions given to jurors.

New facts generally cannot be introduced in appeal. Instead, it is an opportunity for the High Court to review the underlying case to look for any procedural mistakes or other issues with the process that may have unfairly affected the outcome.

Ms. Holmes’ attorneys took steps to lay the groundwork for the appeal during the trial. Out of view of jurors, her defense regularly filed motions to challenge the scope of witnesses’ testimony and made repeated attempts to exclude certain evidence, including a sinister 2016 regulatory report. When the government completed its case without calling witnesses from the regulator, lawyers for the Centers for Medicare and Medicaid Services, Ms. Holmes argued that the report was “dangerous without the context of its authors.”

The government countered each defense request, and it was particularly angered over a third failed attempt on Ms. Holmes’s part to accept in evidence customer reviews from Walgreens patients taking Theranos blood tests.

Lawyers overseeing the trial said US District Judge Edward Davila’s handling of the case before and during the trial provided few grounds for appeal. He often split the odds in his decisions, giving prosecutors enough leeway to make their case, while sometimes appearing respectful of Holmes and her legal team, observers said.

According to jurors who arrived after the verdict, the jury, consisting of retirees, government employees and retail and technology-industry employees, carefully followed the judge’s instructions and spent more than 50 hours outlining each count before reaching a decision. Examine the evidence.

Susanna Stefanek, 51, editorial manager at Apple Inc., said, “We were really systematically, looking through each witness, looking at our notes, refreshing our memories, the key points they made. were pulling.” ,

Prosecutors successfully argued in the 15-week trial that Ms Holmes misled investors about Theranos’ technology, including lying about the capabilities of its proprietary finger-prick blood-testing devices, and that Theranos’ drug companies had been involved in the investigation. falsely claiming to have a deep relationship with. The jurors said that Ms. Holmes did not persuade the patients with evidence trying to deceive them, and that the four acquitted patients would not count in appeal.

Sometimes convictions of complex fraud and corruption are proven. In 2020 the US Supreme Court tossed out a pair of public-corruption sentences in the New Jersey scandal known as Bridgegate, unearthing a retaliation plan to cripple Fort Lee, NJ, federal fraud with traffic jams not constituted.

In other instances, success on appeal was still not the end. Former Speaker of the New York State Assembly, Sheldon Silver, was given a federal-court public-corruption sentence on appeal, but he was again convicted on the same crimes and sentenced to seven years in prison in 2018.

Kevin Downey, one of Ms. Holmes’ lead attorneys, said in court after the January 3 ruling that she wanted to see how the three cases were resolved before the government set a deadline for filing the defense’s post. Those who have decided to do have ended up in a wrongful trial. Trial Motion. Judge Davila said a hearing could be scheduled to discuss the hung count in the coming days, but no date has been set.

When the government rested its case after 29 witnesses on 19 November, a lawyer for Ms Holmes immediately stood up and expressed her intention to file what was known as a Rule 29 motion, which would acquit the judge. Asks to find in favor of doing. At the time, attorney Amy Saharia, a partner at Williams & Connolly, said only that “the evidence presented by the government is insufficient on every element of every count.”

Mr Downey said after the verdict that defense attorneys also plan to file a Rule 33 motion calling for a new trial based on errors that denies the defendant the right to a fair trial. He didn’t give reasons.

If Judge Davila dismisses those two motions and decides to uphold the jury’s four convictions count, Ms. Holmes’ defense team could file an appeal in the Ninth US Circuit Court of Appeals. However, that may not happen until the final judgment is recorded, a move that follows Ms Holmes’ sentencing, possibly several months from now.

After sentencing, Ms. Holmes may ask Judge Davila to stay out on bail pending an appeal, a request that defense lawyers say has a good chance of being granted in such a fraud case. until he is punished. long jail term. Such requests depend on the appeal being debated, raising a substantial question of law or fact that could result in a new trial or a decision being reversed.

No sentencing date has yet been set, though Judge Davila indicated he was leaning toward waiting until after the impending trial of Ms. Holmes’ former deputy, Ramesh “Sunny” Balwani. Mr Balwani has pleaded not guilty.

The trial is currently scheduled for February, although the Northern District of California recently suspended all testing for several weeks due to COVID-19 concerns. In Friday’s hearing held over teleconference, Judge Davila said the new restrictions would likely push Mr Balwani’s trial back until March.

Write Sarah Randazzo [email protected] . Feather

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