On Monday, after seven days of deliberations, the jury in the Elizabeth Holmes case returned a verdict of guilty on four counts of defrauding investors in her Silicon Valley healthcare startup Theranos, not guilty on four counts of defrauding patients who received erroneous lab results from the company’s supposedly revolutionary but defective blood-testing process, and no verdict on three remaining counts of fraud due to the jury’s lack of unanimous agreement on those charges.
There are several important takeaways from the Elizabeth Holmes prosecution, but one stands out above all others: Her trial showed our criminal justice system at its best. And at its best, the system is pretty darn good—which makes it all the more tragic that we so rarely see the system work the way it has so far in the Holmes case.
Here are more thoughts about that and a few other key takeaways and predictions:
1. This was a hard case that showed the system at its best. Contrary to what some may think, the case against Elizabeth Holmes was never open and shut. Fraud is a difficult crime to prove because the government has to show not only what the defendant did, but also what she intended. Thus, for example, when Holmes added Pfizer’s logo to a lab report sent to prospective investors, was she trying to fool them into believing that Pfizer itself had validated those reports, which it had not, or was she simply trying to convey that some of the underlying work was done “in partnership” with Pfizer, as she later testified at trial? Similarly, when she represented to investors that Theranos was working closely with DOD to get the company’s blood analyzers on medevac helicopters, was she deliberately exaggerating the extent of those contacts in order to create the impression that the project was a done deal with a revenue stream that was essentially “in the bank,” when in reality discussions with DOD were still in early stages with a number of potentially insurmountable challenges already in play? And of course those questions must be answered within a particular context—in this case, Silicon Valley’s infamous culture of “fake it til you make it,” which has long tolerated, even encouraged, entrepreneurs overstating their progress towards bringing potentially revolutionary technologies to market when they truly believe that success is all but assured—with a sufficient infusion of capital, of course.
Without getting mired in the details of the investigation and trial, we can summarize the Holmes prosecution as one in which multiple actors—including particularly the prosecutors, defense counsel, the judge, the jury, and the media—took their respective roles in the process quite seriously and performed their assigned functions in a complex, high-stakes endeavor with great care and even virtuosity. Thus, the prosecution did a meticulous job of assembling voluminous evidence that included millions of pages of documents, emails, and text messages, along with dozens of witnesses; Holmes’s legal team put on an aggressive but honorable defense, challenging prosecution witnesses with tough but fair cross-examinations; Judge Edward Davila (a former public defender) ensured a neutral forum in the runup and provided a firm but fair hand to keep the trial on track; the jurors (one of whom was interviewed for the latest fascinating episode of The Dropout podcast) listened carefully and with open minds to the testimony of witnesses, reviewed that and other evidence meticulously, and deliberated carefully before rendering their mixed verdict; and the media—including particularly The Dropout and Bad Blood podcasts—provided thoughtful, informative coverage of the trial that was enthralling but never sensationalistic.
In short, it appears that all of the major actors in the process played their roles to a tee, and as with the spate of other high-profile trials in the past few months, produced a result that reasonable people may disagree with, but that would be hard to fault as a matter of due process.
2. The government played it straight. I yield to no one in my willingness to criticize the criminal justice system for its many pathologies, including particularly the use of coercion by prosecutors to induce people to waive their constitutional right to a trial and condemn themselves instead, as nearly all defendants do today. But I certainly have an obligation to give credit where credit is due, and by all appearances the prosecution team played this case absolutely straight. Granted, I have no insights into any private plea discussions that may have occurred, but I’ve not heard any suggestion that prosecutors in the Holmes case sought to apply the kind if intolerable leverage that they routinely do in other cases, such as offering defendants in the Varsity Blues college admissions investigation weeks or months in prison if they agreed to plead guilty and threatening them with decades if they refused.
Nor does it appear that the DOJ team in the Holmes case committed any of the common forms of prosecutorial misconduct such as hiding evidence, making improper statements during closing argument, or discouraging potential defense witnesses from testifying. That may seem like a low bar, but in light of the jaw-droppingly brazen misconduct we’ve seen in other trials—including Senator Ted Stevens, Nevada rancher Cliven Bundy, and Iranian businessman Ali Sadr Nejad—and the fact that prosecutors are rarely disciplined for their misconduct, the apparent lack of prosecutorial hijinks in the Holmes case is both notable and laudable.
3. It’s Anybody’s Guess What Holmes’s Sentence Will Be. Within minutes of the announcement that Holmes had been convicted on four of the eleven fraud counts against her, Twitter lit up with speculation about what sort of sentence she would receive, with guesses ranging anywhere from no prison time to twenty years or more. Federal sentencing law is notoriously complex, and judges have more discretion than they used to in choosing a sentence. There are also a number of variables still in play, such as whether Holmes is in a position to offer the government “substantial assistance” in its prosecution of her co-defendant, former Theranos COO Sunny Balwani, which could earn her a “downward departure” from federal sentencing guidelines. That said, one of the most important considerations in white collar cases like this one is the so-called “loss amount,” which is the amount of money the government can plausibly claim the defendant’s misconduct cost her victims. In this case, the figure appears to be north of $100 million, which is well into decades-not-years territory. Moreover, in an all-too-characteristic affront to due process, defendants in the federal system can have their sentences enhanced on the basis of uncharged or even acquitted conduct, which means that Judge Davila may, if he chooses, increase Holmes’s sentence on the premise that she did in fact defraud patients as well as investors, notwithstanding the fact that the jury acquitted her of the patient-related charges. On still the other hand, Judge Davila has a reputation as a compassionate—though certainly not bleeding-heart—jurist, and it is difficult to see what societal purpose would be served in keeping Holmes, a 37-year-old mother who gave birth to her first child just months before the trial commenced, in prison until she’s eligible for Social Security. Simply put, reasonable people can disagree about what punishment would be appropriate in this case, and it is anybody’s guess what sentence the judge will ultimately impose.
4. Prediction: The Government Will Not Retry Holmes on the Remaining Three Counts. Although it is impossible to predict with any confidence what sentence Judge Davila will impose, I feel fairly confident in saying it is highly unlikely the government will seek a retrial on the three investor-fraud charges on which the jury could not reach a verdict. There are many reasons for this, but it boils down to the fact that the government would have little to gain from obtaining convictions on those charges—as noted above, the alleged misconduct can still be considered for sentencing purposes even though there was no conviction—and much to lose, including the considerable expenditure of effort that complex trials against well-resourced defendants inevitably entail and the possibility that Holmes could be acquitted on the remaining charges in a way that makes her look relatively more sympathetic than she does now.
5. Prediction: Sunny Balwani Will Plead Guilty. Holmes’s former paramour and current co-defendant, Sunny Balwani, is also facing fraud charges relating to his conduct as Theranos’s Chief Operating Officer. Through counsel, he has put on a game face thus far, asserting his innocence and pledging to prove it at trial. But this week’s conviction of Elizabeth Holmes changes the calculus, and it now seems more likely than not that Balwani will end up pleading guilty. Why? First, because that’s what most defendants do, especially in the federal system where 98 percent of convictions come from plea bargains. Second, the case against Balwani is sufficiently similar to the one against Holmes that the lessons learned by prosecutors in the Holmes trial can be applied to potentially devastating effect against Balwani as well. In short, the prosecutors have had the opportunity to run this play once, and there is every reason to believe they will be even more effective if they get to run it again. Finally, having bagged the trophy buck (or doe, as it were), prosecutors can afford to make Balwani a better offer than they might have before knowing how the case against Holmes would turn out. Simply put, they can afford to be generous if Balwani wishes to surrender and ruthless if he refuses, threatening him with a massive trial penalty in the event he exercises his right to trial and loses. Balwani seems like a shrewd—if evidently unscrupulous—businessman, and he will likely have no trouble running the numbers and correctly assessing his best play.
6. Was Elizabeth Holmes Treated Differently Because She’s a Woman? I will end with a question that hangs over this entire episode, from the earliest days of Theranos as a Silicon Valley startup to the criminal conviction of its Icarus-like founder and CEO, and that is whether Elizabeth Holmes was treated differently because she’s a woman. I will not delve deeply into that question here, but I think it matters because if the answer is yes, then she deserved better. For example, if Holmes was cossetted and treated with kid gloves by her alpha-male board of directors, as it seems she may have been, then she deserved better—she deserved to get the kind of hard questions, probing responses, and show-me-don’t-tell me oversight from board members that people who are not strikingly blonde, blue-eyed nineteen-year-old women get when they propose to revolutionize an entire industry overnight. And if she was uncritically revered, adulated, and elevated by a fawning media and intellectual class in part because she wasn’t just any young Silicon Valley entrepreneur, but specifically because she was a young female entrepreneur, then she deserved better. Simply put, if her mentors, admirers, and colleagues projected onto Elizabeth Holmes their desire to see a female protagonist rise to glory in the traditionally male-dominated world of big tech—and if they helped create shortcuts and blind spots that encouraged Holmes to scale those heights by any means, fair or foul—then they too share some measure of blame in this distinctly American tragedy.