As her federal criminal trial begins in earnest this week, Elizabeth Holmes faces her greatest challenge: convincing a jury that she is not to blame for a massive fraud
Elizabeth Holmes, founder of Theranos Inc., arrives at federal court in San Jose, California on Tuesday, August 31. Photo: David Paul Morris/Bloomberg via Getty Images This article was featured in One Great Story, New York’s reading recommendation newsletter. Sign up here to get it nightly.
The peculiar alchemy that creates a trial of transcendent public interest is unpredictable — after all, recent criminal prosecutions of health-care executives whose conduct was at least as bad, if not significantly worse, have drawn little attention. When it happens though, it tends to be when the underlying events provide a dramatic stand-in for a broader public debate. This is definitely not the O.J. Simpson prosecution in the scale of its public reach and engagement .
In 2015, Barack Obama selected Holmes as an Ambassador of Global Entrepreneurship, and she attended a state dinner at the White House with the prime minister of Japan. During a visit of one of Theranos’s facilities, then-Vice-President Joe Biden called it a “laboratory of the future.” Later that year, Holmes spoke onstage with former president Bill Clinton at the annual meeting of the Clinton Global Initiative.
Holmes on stage at TechCrunch Disrupt in San Francisco back in 2014. Photo: Steve Jennings/Getty Images Holmes’s case wound up in the hands of prosecutors in the U.S. Attorney’s Office for the Northern District of California — home to Silicon Valley and Theranos before its demise. The judge has set aside four months for the trial, with three trial days a week. The parties have identified upward of 250 witnesses.
The various counts in the indictment also allow prosecutors to tell different parts of the Theranos story. Three of the government’s wire fraud counts, for instance, relate to results received by three different patients, each of whom will take the stand. This is testimony that a jury is likely to find highly sympathetic, and that Holmes fought vigorously — and unsuccessfully — to prevent.
If anything, the question that jurors are likely to have — one, at least, that I had — is why federal regulators did not catch on to Theranos’s problems earlier, given the brazenness of the alleged scheme, the heavily regulated nature of the medical industry, and the considerable stakes of erroneous blood testing.
Sometimes this works. Several years ago, a former Barclays foreign-exchange trader persuaded a judge to throw out his case in the middle of the trial on the theory that his alleged misrepresentations could not have been “material” — a necessary element of a wire fraud charge — since everyone in the market was effectively “BS-ing” each other.
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