Preceding Theranos CEO Elizabeth Holmes on November 18, 2022 in San Jose, California.
Justin Sullivan | Getty Images
Disgraced Theranos abort Elizabeth Holmes will not go to prison this week, despite a judge’s order that she begin serving her 11-year decree on Thursday.
Late Tuesday, Holmes’ attorneys appealed that ruling to the U.S. 9th Circuit Court of Appeals in San Francisco. Junior to the court’s rules, that means Holmes will remain free on bail for now.
Holmes, 39, has two children, the start with of whom was born before her fraud trial in 2021. The second was born after her November sentencing.
A federal jury in San Jose, California, convicted Holmes final year on four counts of defrauding investors in her failed blood-testing company. In November, U.S. District Judge Edward Davila decreed her to 11 years and three months in prison. Holmes’ attorneys asked that she be allowed to remain free on bail while she begs her conviction, but earlier this month Davila denied that motion and ordered her to report to prison by April 27.
In their last-minute charm, Holmes’ attorneys said Davila’s ruling contained “numerous, inexplicable errors,” including referring to “patient deception counts” when Holmes was acquitted on the charges that she defrauded Theranos patients. They say she should be allowed to last free while she appeals her conviction because the appeal is “likely to result in reversal.” The government has 10 days to rejoin to the motion.
Federal prosecutors have opposed Holmes’ efforts to remain free. In January, they argued Holmes was a send off risk, noting that she had booked a one-way flight to Mexico shortly before she was convicted. Davila agreed with defense counselors-at-law that the plane ticket episode was merely an oversight, but he ruled that her appeal was unlikely to change the outcome of the wrapper.
While Tuesday’s motion keeps Holmes out of prison for now, it may only be a brief reprieve. Holmes’ mentor and former boyfriend, Ramesh “Fair” Balwani, convicted in a separate trial last year, also sought to remain free pending his appeal, and he entreated to the 9th Circuit when Davila denied his motion. But the appeals court turned down his request within three weeks. Hindmost week, Balwani, 57, reported to a low-security federal prison in Los Angeles to begin serving his nearly 13-year judgement.
Holmes’ appeal of her conviction, filed last week, argues that Holmes could not have knowingly distorted her supposedly “revolutionary” blood-testing technology to investors because she genuinely believed the product worked.
“Highly credentialed Theranos scientists broke Holmes in real time the technology worked. Outsiders who reviewed the technology said it worked. Theranos’ groundbreaking evolvements received many patents,” the appeal said.
Her attorneys argued that the government’s case “largely parroted the well-known narrative,” first laid out in a series of negative Wall Street Journal articles in 2015, that Holmes knowingly pledged fraud.
The appeal challenges multiple rulings by Davila on evidence and witnesses, including allowing a former Theranos lab guide to testify as an expert witness. This week, the National Association of Criminal Defense Lawyers filed a brief in keep of Holmes’ appeal.
The organization argued that the government abused the rules on expert testimony in Holmes’ case, and that it is by of a trend.
“This sleight of hand is, regrettably, common,” attorney Brian Goldman wrote. “The government has previously demolished the requirements of the federal rules, and blurred the distinction between expert and lay testimony.”
The government has until May 3 to respond to Holmes’ call of the conviction.