Veteran Prosecutors Doubt Elizabeth Holmes’ Defense Strategy

By David Howard King

Veteran Prosecutors Doubt Elizabeth Holmes’ Defense Strategy

11.2.2021

By David Howard King

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Any questions about whether gender played a role in the Elizabeth Holmes trial were laid succinctly to rest.

“I don’t think gender played any role,” said Carrie H. Cohen of Morrison & Foerster, when asked if she felt gender influenced the federal fraud case being brought against former Theranos CEO Elizabeth Holmes. “The wrongdoing is so public and out there that any prosecutor in the country would work to make these charges stick if they thought they had it.”

Cohen drew on her experience as Assistant United States Attorney (AUSA) for the Southern District of New York and former Assistant Attorney General-in-Charge of the Office of the New York State Attorney General during the recent fireside chat, “Bad Blood: The Role of Gender in The Elizabeth Holmes Trial.” The event was sponsored by the Women in Law Section, the Commercial & Federal Litigation Section, and the Trial Lawyers Section.

Holmes’ rise as a CEO in the notoriously male-dominated world of Silicon Valley was covered extensively in the pages of magazines, popular podcasts, and documentaries. Her fall came quickly when a whistleblower working with The Wall Street Journal exposed that Holmes vaunted all-in-one portable blood testing lab not only didn’t work, but that Holmes knowingly made false claims to lure prominent investors and created a fake laboratory to snow regulators.

Kate Driscoll, also of Morrison & Foerster and a former AUSA for the Eastern District of Pennsylvania led the hour-long discussion prompting Cohen with questions about the role gender plays in the case, how it is perceived by the media and various societal critiques pushed in the wake of Holmes’ downfall.

While Cohen didn’t think gender played a role in the charges, she saw the question of whether a man would have been charged in the same situation as a different question.

“Why is it that big Silicon Valley male CEOs who we’ve seen investigative reports about potential fraud, why have they not been charged?” asked Cohen. “From where I sit the answer is pretty clear. I don’t know this to be true, but I’d bet there are numerous prosecutors across the country that have tried or are trying to make charges against those CEOs. But they need proof beyond a reasonable doubt and the truth is their conduct may not be a violation of our criminal laws.”

As far as the Holmes trial goes, the elephant in the room is the defense teams’ strategy to attribute Holmes’ behavior as the result of abuse by her former boyfriend and former Theranos Chief Operating Officer Ramesh “Sunny” Balwani. Balwani will face a separate trial expected to start in January of next year. It’s also expected that he will blame Holmes for Theranos’ many deceptions.

A September 8 defense filing shows that Holmes’ team plans to claim “intimate partner abuse” by Balwani described as controlling and threatening behavior. Prosecutors countered by releasing reams of text messages between the two showing affectionate exchanges.

However, according to defense attorneys, Holmes met Balwani in 2002 during a language immersion trip to China. She was 18 at the time and he was 37. This brings up complicated questions of impropriety and power dynamics.

“This does raise questions,” said Cohen. “How does a man of that age end up with essentially a teenager? We know she dropped out of Stanford, and he joined her at Theranos. That’s a very legitimate concern. I think though the facts as they have played out in court have not supported that he controlled her or anything she did was because she was suffering under his control.”

Cohen pointed to testimony from a Theranos employee that he saw her arguing with and overturning Balwani on numerous occasions.

While Holmes has an expert who could testify to the “intimate partner abuse” defense, Cohen doubts the defense will actually call her. She also doubts Holmes will take the stand.

Cohen and Driscoll agreed that they expect most of the defense to play out in the cross of prosecution witnesses. “The cross is their case,” said Cohen. “It’s interesting from a trial standpoint because the crosses are longer than the directs. It is very powerful for the defense to say, ‘We don’t need to call anyone, there’s reasonable doubt all over the place.’”

Cohen stressed that while she thinks there are cases where “intimate partner abuse” could be a legitimate defense, she doubts Holmes specifically given the evidence.

However, Cohen isn’t exactly convinced a jury will find in Holmes’ favor.

Driscoll asked about articles that have noted that “there are so many mail leaders in Silicon Valley that when one fails, that’s just an outlier. But now when another woman comes up in Silicon Valley people will say ‘we can’t trust her. We had one woman rise to the top and look at what happened.”

Cohen said that idea saddens her, however she has a more hopeful take. “The facts about what she did and how she did it are not necessarily commonplace. She’s an outlier in the level of her fraud. She was selling a product she knew never worked, every piece was a fraud every step of the way and that’s not necessarily typical. Hopefully there is no lasting impact on other women in the ranks of other tech companies.”

The Holmes trial is expected to last at least another month. Driscoll and Cohen agreed they might just have to get together at its end to see if their predictions had played out.

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