Elizabeth Holmes spent 7 days defending herself against fraud. Will the jury buy it?
Elizabeth Holmes put on her mask and gazed out at the jury. She stepped down from the plexiglass-paneled witness stand, clasped her hands in front of her and slowly walked back to rejoin her lawyers at their table in the courtroom.
Wednesday concluded seven days of testimony for Holmes, as the defense announced it had rested its case. The fraud trial is now on the cusp of jury deliberations.
The onetime Silicon Valley luminary told jurors that while chief executive of the blood-testing startup Theranos, she was not responsible for fleecing investors of millions of dollars and delivering flawed results to patients, as prosecutors have alleged.
Her testimony was perhaps the best opportunity for the defense to undercut the government's case. It is expected to play a crucial role when the jurors start discussing their opinions of the case, according to legal experts.
"It was a gamble for the defense to rest so much of its case on Holmes' credibility on the stand, but they may not have had many other options," said former federal prosecutor Laurie Levenson, who now teaches at Loyola Law School. "If the jurors think she was trying to manipulate them and make a play for their sympathy, that could really backfire."
Holmes' testimony followed prosecutors calling 29 witnesses, including former Theranos lab scientists, investors and patients, in an attempt to showcase how Holmes amassed millions of dollars of investment and became the youngest self-made female billionaire, all through a web of lies. Government lawyers allege that Holmes' deception was intentional — that her statements about Theranos' supposedly revolutionary blood-testing devices exceeded embellishments and crossed the line into criminal fraud.
Theranos' crown jewel was a device called the Edison, which Holmes said could scan for hundreds of diseases, and one day even more than 1,000 conditions, with just a pinprick of blood from the tip of a patient's finger. But prosecutors called witnesses who testified that the device could test for only about a dozen diseases and that even those results were flawed. Most of the time, according to the government, Theranos secretly relied on commercially available blood analyzers that Theranos modified.
Holmes admitted that the company did depend on commercial blood-testing machines, saying it was kept confidential because she considered it a trade secret.
The trial will resume on Dec. 16, when closing arguments are scheduled. After that, the jury will begin its deliberations.
Prosecution seeks to strike Holmes' testimony of abuse by former partner
To defend herself, Holmes took the witness stand seven separate times, appearing mostly poised, confident and collected as she said others were to blame for the company's failures.
She pointed to rank-and-file employees at Theranos, including lab directors who she said had oversight over the company's technology, and to Ramesh "Sunny" Balwani, the former No. 2 at the company and her ex-boyfriend. She said he had closely controlled the company's financials.
Holmes also accused Balwani, her senior by 20 years, of manipulating her during their relationship. Holmes wept on the stand as she described how Balwani allegedly emotionally and sexually abused her and exerted control of everything, from how she spoke to what she ate.
"He had taught me everything I thought I knew about business, and he was the best businessperson that I knew," Holmes testified between sobs. "I didn't question him in the way that I otherwise would have."
Legal experts say one of the pivotal questions going into jury deliberations is what kind of sway Holmes' abuse allegations will have over the jury.
"I think a jury could find her testimony about the physical and emotional abuse she suffered to be true but not exonerating," said Barbara McQuade, a former top prosecutor who now teaches at the University of Michigan Law School. "She is asking the jury to find that she was unable to form the intent to defraud because of the trauma she suffered. I think a jury is likely to sympathize with her suffering but still hold her accountable for fraud."
But other longtime trial lawyers say it could cut the opposite way. Thomas Mesereau, a defense lawyer who has represented Bill Cosby and Michael Jackson, said putting Holmes on the stand transformed her from "an abstraction" to a "believable, relatable human being." He said airing the alleged abuse could resonate with the jury, composed of eight men and four women.
"We live in the #MeToo era, where jurors tend to be more open and receptive to allegations of abuse in relationships. So from where I sit, I think the defense was smart to present it," Mesereau said.
At one point while cross-examining Holmes, Assistant U.S. Attorney Robert Leach called up lovey-dovey text messages between Holmes and Balwani and asked her to read them aloud. In some, the two called each other "tiger" and "tigress." In others, Holmes called Balwani "My nirvana," and Balwani said, "I worship you." The spectacle of a male prosecutor questioning a woman about her abuse allegations by making her recite intimate text-message exchanges made some in the audience noticeably uncomfortable.
After Holmes' testimony concluded, prosecutors informed the judge that they were planning to have the allegations of abuse stricken from the court record, arguing that they were "irrelevant."
Holmes personal story vs. the government's "lies and forgeries" case
Over the course of a years-long investigation, prosecutors marshaled a mountain of evidence, including reports validating Theranos' technology that Holmes forged to include the logos of pharmaceutical companies, despite never having permission. The documents were then sent to business partners. Holmes said she did this because she thought the pharmaceutical giants had backed Theranos' technology.
Prosecutors played recordings of Holmes bragging to potential investors about partnerships that never materialized. And former Defense Secretary Jim Mattis, who invested in the company, testified that he grew disenchanted with Holmes when she claimed Theranos tests would save life on the battlefield, yet that never happened.
Throughout her testimony, however, Holmes said she never meant to mislead anyone, but that she was merely overly optimistic, believing that Theranos' technology would one day catch up to her bold promises, a nod to the fake-it-till-you-make-it ethos that drives so much innovation in Silicon Valley.
"I wanted to talk about what this company could do a year from now, five years from now, ten years from now," Holmes testified on Wednesday. "They weren't interested in today, or tomorrow or next month. They were interested in what kind of change we could make."
Days before, Leach, one of the lead federal prosecutors, pushed Holmes to admit that being founder and chief executive meant she bore responsibility for what happened at the company.
"Ultimately, all roads lead to the CEO?" Leach asked Holmes. She agreed.
"The buck stops with you?" Leach said.
Holmes responded: "I thought so."
Her testimony is not likely to diminish the weight of the other evidence in the case, said former prosecutor Bill Portanova, who is now a defense lawyer in Sacramento, Calif.
"There are two fundamental categories of evidence that jurors understand well — lies and forgeries — and jurors are justifiably harsh when they feel lied to," Portanova said.
"Eleventh-hour claims of mental or physical abuse are not well received as excuses, especially when the defendant has been living the high life for years."
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