Convicted Silicon Valley entrepreneur Elizabeth Holmes is set to be part of a last-ditch push for a new trial Monday during a hearing in San Jose federal district court where a jury convicted her in January of fraud criminal.
Criminal defense attorneys who spoke with Yahoo Finance say Holmes’ chances of getting a redesign are slim, particularly following a court document filed Wednesday by Dr. Adam Rosendorff, the former lab director of his defunct blood testing startup Theranos. His post-trial statements are central to Holmes’ claim.
“If Rosendroff testifies in the way he intended in his motion…and the judge credits him, that’s it,” he added. Andrei Spektora partner at law firm Bryan Cave Leighton Paisner, said.
During Holmes’ trial, Rosendorff testified against his former boss, saying he felt compelled to quickly expand Theranos’ blood-testing system, despite problems with its technology.
“I have answered all questions put to me fully, accurately and truthfully to the best of my ability,” Rosendorff’s court filing reads. “Nothing I have learned since my testimony has changed my recollection of the events I witnessed during my time at Theranos.”
However, in asking the court for a new trial, Holmes argues that Rosendorff told a contradictory story to his partner Billy Evans.
According to Evans, Rosendorff sought Holmes at the couple’s home in Woodside, California on August 8, seven months after Holmes’ trial. In a conversation with Evans, Rosendorff reportedly said that government prosecutors made his testimony about conditions at Theranos look worse than they actually were. Holmes argues that a misinterpretation of Rosendorff’s testimony might warrant trying the case again.
But in Rosendorff’s court file, the former head of the Theranos laboratory clarified that he stands by his earlier testimony and went to the residence to pardon 38-year-old Holmes, not to recant his affidavits.
District Court Judge Edward Davila granted Monday’s evidentiary hearing to question Rosendorff, ahead of Rosendorff’s filing on Wednesday. However, at a hearing on Friday in which Davila denied Holmes’ request to subpoena Rosendorff’s emails and other communications, the judge stressed he had specific questions for the former lab chief. .
“Dr. Rosendorff – his conduct while visiting [Evans] — of course, that’s the genesis of it all. And I found that, and I still believe, that it deserves careful consideration. And that’s why I fixed the hearing,” Davila said. “The ability to follow up, I think I can get clarification for myself.”
Davila further stressed that Monday’s hearing would be limited and that Rosendorff’s questioning would not be allowed to turn into a “long discussion or examination.”
Additionally, Holmes’ lawyers and prosecutors will be allowed to question Rosendorff about his spontaneous encounter. Spektor expects the parties to ask Rosendorff why he made his visit, what he said and what he meant by his statements to Evans. He said the judge will want to weed out the truth of the parties’ conflicting stories, both of which have significant consequences, if true. “Holmes’ partner probably wants to help Holmes, and Rosendroff doesn’t want it to be found out that he perjured himself,” Spektor said.
Even Evans’ story is accurate, it wouldn’t necessarily lead to a new trial for Holmes, criminal defense attorney Michael Weinstein told Yahoo Finance. In addition to his motion and trial testimony, Weinstein said, Rosendorff also signed a certification confirming the truth of his statements made on the stand.
“Based on what he’s already filed, I don’t see this turning into a new lawsuit,” Weinstein said. “Unless he comes out and says I lied, or testified falsely, which of course would put him in grave danger…”
In order to grant a new trial, the lawyers said the judge would have to find the government was wrongful in the prosecution. Specifically, they shaped Rosendorff’s testimony in a way they knew would be wrong to secure a conviction.
In January, Holmes was convicted of three counts of criminal wire fraud and one count of conspiracy to commit wire fraud. Her jury unanimously found her guilty of illegally stealing millions of dollars from investors through her Silicon Valley blood testing startup.
At Monday’s hearing, Judge Davila could either rule from the bench or take the case into consideration to make a decision at a later date.
Holmes’ sentencing, which has been repeatedly postponed, is now scheduled for November 18.
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.
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