Mintz & Gold partner Ira Lee Sorkin discusses the Elizabeth Holmes fraud case as the former Theranos founder reports to prison on The Claman Countdown.
Attorneys for Elizabeth Holmes appeared before a federal appeals court in San Francisco this week, asking a panel of judges to overturn the Theranos founder’s conviction on charges that she defrauded investors of the failed blood-testing start-up.
While some legal experts say the fallen Silicon Valley darling does have a chance at a successful appeal, others are not so sure.
Former Theranos CEO Elizabeth Holmes arrives at federal court on Oct. 17, 2022, in San Jose, California. Holmes appeared in federal court related to an attempt to overturn her fraud conviction. (Justin Sullivan/Getty Images)
Holmes, who is currently serving an 11-year prison sentence after a jury found her guilty on three charges of wire fraud and one conspiracy charge, was acquitted on four charges related to defrauding the public and the jury was unable to reach a verdict on the remaining three counts.
According to David Gelman, a former prosecutor and founder of Gelman Law, “Any trial as complex as this one could have several potential errors or issues that could support a successful appeal.”
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Gelman told that one intriguing issue could pertain to the split verdict itself.
Courtroom drawing of Elizabeth Holmes during her sentencing hearing on Nov. 18, 2022. (Vicki Behringer/Getty Images)
“The wire fraud charges were associated with specific investors in Theranos,” Gelman said. “To the extent that the facts and legal theories underlying these charges are intertwined with the other charges of which she was acquitted, it could represent an unacceptable inconsistency in the verdict, thus suggesting a problem with the jury charge. This would be a major issue.”
Katie Charleston, another former prosecutor and founding attorney of Katie Charleston Law, PC, says Holmes’ appeal presents “a daunting legal challenge, given the egregious nature of the crimes involved.”
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Charleston said that given Holmes was convicted of defrauding investors on an unprecedented scale, the former CEO’s defense team faces a “monumental task” in convincing the appellate judges to overturn her conviction.
Attorneys for Holmes were not the only ones seeking an appeal from the 9th Circuit on Tuesday. A team of lawyers for Ramesh “Sunny” Balwani, the former Theranos president and ex-boyfriend of Holmes, was also in court arguing to overturn his conviction on 12 federal criminal fraud charges.
Sunny Balwani, former president of Theranos, is shown in federal court in San Jose, California, on Dec. 7, 2022. (David Paul Morris/Bloomberg via Getty Images)
Balwani is currently serving a 13-year prison sentence.
“Notwithstanding Holmes ‘reasonable belief’ in the products she was selling or the judge’s ruling on her relationship with Balwani, her legal team must unearth substantial flaws in the trial process or the evidence presented for her conviction to be overturned or for a new trial to be ordered,” Charleston said.
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“However, given the gravity of her offenses, the appellate judges will undoubtedly subject every aspect of the case to intense scrutiny before rendering a decision that could reshape the legal landscape surrounding fraud cases,” she continued. “The odds here are not in her favor.”