Elizabeth Holmes’ deluge of retrial offers as sentencing nears: What is she looking for and will it work?

Theranos fraudster Elizabeth Holmes’ flurry of attempts this week to get a new trial has several purposes, and one of those court requests has a good chance of delaying the start of her scheduled prison sentence, legal experts say.

“Time is running out for Ms. Holmes on her freedom,” said legal analyst and former Santa Clara County prosecutor Steven Clark.

With his sentencing next month expected to result in a multi-year jail term, Holmes this week filed three motions in U.S. District Court in San Jose asking Judge Edward Davila to dismiss the guilty verdict on four counts. of the jury in his criminal fraud case and to order a new trial. Those filings, one Tuesday and two Wednesdays, came after Davila last week backed down from his previous attempt to outright throw out the verdict without a new trial.

“The goal is to keep her out of jail forever,” said criminal defense attorney Carrie Cohen, who is following Holmes’ case from New York. “The secondary objective is to delay it as long as possible.”

Even if none of the three motions gets Holmes a new trial, all could bolster his inevitable appeal, and one could delay his Oct. 17 sentencing, legal observers said. No hearing date on the motions has been set. Both sides have agreed to file arguments later this month.

In January, a jury found Holmes guilty on four counts of defrauding investors in the now-defunct Palo Alto blood-testing startup, which she founded in 2003 when she was 19. The company, Theranos, went bankrupt in 2018 after the charismatic Holmes and his former lover, the company’s chief operating officer, Sunny Balwani, were accused of fraud. The case captured worldwide attention and spawned three documentaries, a TV series, a bestselling book and an upcoming film starring Jennifer Lawrence as Holmes. Balwani was found guilty in July of a dozen counts of fraud.

Holmes’ first motion on Wednesday, claiming federal prosecutors used arguments in Balwani’s trial that would have led jurors in his trial to acquit him, could be counterproductive, Stanford law professor Robert Roberts said. Weisberg. “There is no formal legal error in presenting evidence or inconsistent characterizations of defendants in separate sequential trials,” Weisberg said. “As a rule, each conviction is independent. I could… imagine Davila being annoyed by that.

However, Davila, who presided over Holmes’ four-month trial, is likely to take seriously the second motion Holmes’ legal team filed on Wednesday, legal experts said. His lawyers say the prosecution violated the “Brady rule” legally requiring prosecutors to pass useful information to the accused.

Prosecutors for Holmes hid emails showing they failed to keep a database of patient test results, his team alleged. The database issue, after hours of pre-trial wrangling over who was responsible for the missing data and whether it showed or disproved fraud, did not come to prominence in Holmes’ trial. And while the motion may not sway Davila, the allegation that the prosecution withheld material information might play better on appeal, Clark said.

“Brady’s violations are something appeals courts don’t like,” Clark said.

Still, it’s Holmes’ motion filed on Tuesday claiming a key prosecution witness showed up at his home that may offer him more immediate hope, legal experts said.

Former Theranos lab director Dr. Adam Rosendorff, who told the Holmes jury that the company “valued public relations and fundraising over patient care” and that he had felt morally obligated to go public with the inaccurate test results, rang Holmes’ doorbell last month, sounding desperate and disheveled, begging to speak with Holmes, according to a statement from Holmes’ partner Billy Evans.

“He said he wanted to help her,” Evans, the father of Holmes’ one-year-old son, said in the statement. “He said he felt guilty. He said he felt like he had done something wrong. Rosendorff, according to the statement, told Evans that on the witness stand, “he tried to answer questions honestly but that prosecutors tried to make everyone (at the company) look bad” and that prosecutors “made things worse than they were. .”

Former prosecutor Clark called the motion a “very bizarre development”, adding: “I don’t know if I’ve ever seen anything like this in my 35-year career.”

Legal experts agreed that Rosendorff’s alleged statements would likely force Davila to hear from the lab’s former director, but the outcome is far from certain. It’s not uncommon for witnesses to feel bad for testifying against someone they know, defense attorney Cohen said.

“It’s not clear to me that he’s saying he gave false testimony or that the government pressured him in such a way that he gave false testimony,” Cohen said.