Elizabeth Holmes trial: Closing arguments begin

By Sara Ashley O’Brien, CNN Business

The government made its final case on Thursday that Elizabeth Holmes knowingly misled investors, doctors and patients about her startup’s blood testing capabilities in order to take their money.

In its closing arguments, the prosecution attempted to undercut parts of Holmes’ defense by painting the Theranos founder as an experienced executive who had been running her startup for nearly a decade by the time the alleged fraud took place, and who made a choice to lie to investors as her blood-testing startup was running out of money.

“She chose fraud over business failure. She chose to be dishonest with investors and with patients,” prosecutor Jeffrey Schenk said in his closing remarks at the San Jose federal court where the trial has been underway for more than three months. “That choice was not only callous, it was criminal,” he added.

Schenk also addressed arguments the defense had made during the trial that “business failure is not a fraud.” He conceded this point, but said it does not apply to Holmes. When faced with possible business failure, he said, Holmes had a choice — and chose to mislead.

“An honest pitch filled with honest representations to her investors and to patients would not have resulted in any revenue for Theranos, no money for Theranos with honest statements,” he said.

Holmes’ attorney Kevin Downey began his closing arguments after the prosecution concluded and portrayed Holmes as “building a business and not a criminal enterprise.” He argued that Holmes believed, based on the work of scientists at Theranos, the company would be capable of performing any blood test with the version of its technology it was developing.

Taken in aggregate, Downey argued, the evidence shows Holmes believed she had invented “a very valid form of technology that she was submitting to the [FDA] for approval.”

The closing arguments cap off a high-profile trial for the onetime tech industry icon. During its case, the prosecution called 29 witnesses including former Theranos employees, scientists, investors and even a former Secretary of Defense as it sought to illustrate how Theranos’ technology fell far short of its claims as well as how it overstated its financials, misled investors about partnerships and leveraged the media to perpetuate its claims, all while pinning Holmes at the center of it all.

The defense called only three witnesses, ending with Holmes, who testified for seven days.

The government makes its final case

In his closing argument, Schenk launched into a presentation with each of the government’s witnesses in the order they testified, featuring photos and excerpts of their testimonies. He explained to jurors that while some of the third parties that jurors have heard about through the trial, such as Walgreens, Safeway and Department of Defense, are not victims tied to the charges, the “false statements” made to each are relevant because “you begin to see that there’s a scheme going on here … it is all the same scheme.”

Schenk then delved into each of the 11 counts of fraud that Holmes is charged with, pointing to what he said were false representations she made on various aspects of Theranos’ business.

He reiterated those statements to the jury — sometimes by playing back audio clips from earlier in the trial — on topics including the capabilities of Theranos machines, the company’s partnership with Walgreens, its use of third party devices and its work with the military.

Schenk also took aim at Holmes’ attempt to excuse concealing her company’s use of third-party devices to test blood. During her testimony, Holmes had cited “trade secrets” to justify concealing modifications Theranos made to commercially available machines.

Schenk told jurors they shouldn’t accept the fact that trade secrets gave Holmes permission to make false statements. “The trade secret — I’m going to call it excuse — even if you accept it, is only an excuse for the modified third party devices,” he said, adding that Theranos also used unmodified third party devices was not a trade secret, “that was just a secret.”

The defense’s strategy

By contrast, Downey attempted to cast doubt on what jurors heard earlier in the day and throughout the trial. He argued that the case is more complicated than simply taking the government’s witnesses and evidence at face value, and urged jurors to consider all the evidence, taken together with the defense’s point of view.

“You’ll see that there’s a lot of just innocent events, and only when you put on the government’s lens and look through the government’s eyes will you see some nefarious intent or bad conduct,” he said.

Downey projected a visual of a staircase, illustrating the eight levels he said jurors would have to climb in their minds to convict Holmes. At the bottom: “no evidence.” Further up: “reasonable evidence.” And at the very top: “beyond a reasonable doubt.”

He pointed out various pieces of evidence that he said showed Holmes lacked the intent to commit fraud. He noted Holmes had received validation from internal scientists that informed her belief in the capabilities of the technology the company was developing. He reminded jurors that she disclosed to regulators the company’s use of third-party manufactured devices, and that she made changes to the company following the regulatory inspection that found issues within its clinical lab, including agreeing to void two years of blood tests.

Before breaking for the day, Downey also pointed to Theranos’ “illustrious” board, which included two former Secretaries of State as well as one former and one future Defense Secretary, among other notable individuals, implying these are not the board members a “criminal” would select.

“If Ms. Holmes were a criminal, as the government alleges, what kind of a board of directors would she appoint?” he asked. “Would she appoint cronies or people who might follow her instructions? You would think so.”

The jury of eight men and four women will ultimately have to decide whether they believe Holmes lied and cheated for financial gain or whether she was a young innovator who simply made mistakes and trusted the wrong people.

Holmes, 37, faces nine counts of federal wire fraud and two counts of conspiracy to commit wire fraud over allegations she lied to investors, doctors and patients about her company’s ability to accurately and reliable conduct blood tests using just a few drops of blood between 2010 and 2016.

She struck up partnerships with two major retailers — Walgreens and Safeway — and raised $945 million from investors, ultimately valuing the startup at $9 billion and making herself, for a time, a billionaire. She was lauded on the cover of magazines and hailed as the next Steve Jobs. But after a 2015 Wall Street Journal investigation poked holes in the company, its business started to unravel.

Holmes, a Stanford dropout who started Theranos at age 19, faces up to 20 years in prison as well as a fine of $250,000 plus restitution for each count of wire fraud and each conspiracy count. She has pleaded not guilty.

A high-profile trial

The public interest in Holmes hasn’t faded since her downfall. There are documentaries, a forthcoming limited series and a planned feature film. That interest was evident outside the courthouse Thursday where 34 members of the public and press had lined up before 4 a.m. local time to get a seat in the main courtroom. There are just 34 seats available, plus another roughly 45 spots in an overflow room. The trial is not being televised.

In order to convict Holmes, prosecutors need to convince jurors of Holmes’ intent. The prosecution and defense have been arguing over definitions for words like “knowingly” and “willfully” in finalizing jury instructions. The instructions will be read aloud to jurors before deliberations.

“Cases can be won or lost depending on how the judge words the instructions,” said Miriam Baer, a law professor at Brooklyn Law School, telling CNN Business that jury instructions are “a legal road map for the jury.”

Holmes was first indicted more than three years ago. Her trial was delayed several times due to the pandemic and then the birth of her first child in July.

On the stand, Holmes also offered up a new dimension to her story, claiming that while at the helm of Theranos, she was the victim of a decade-long abusive relationship with Ramesh “Sunny” Balwani, the company’s chief operating officer and president. (Balwani has denied the abuse allegations in court filings. He faces the same charges as Holmes and is set to be tried early next year. He has pleaded not guilty.)

Schenk, in his closing statement, urged the jury to focus on the fraud charges against Holmes rather than her allegations of abuse by Balwani.

“You do not need to decide whether that abuse happened in order to reach a verdict,” he said. “The case is about false statements made to investors and false statements made to patients.”

As Laurie Levenson, a professor at Loyola Law School and former federal prosecutor, previously told CNN Business, the case may come down to Holmes’ credibility as a witness and defendant: “This case is very much about who is Elizabeth Holmes and how opportunistic is she that she’ll say whatever the moment requires her to say.”

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