Elizabeth Holmes Trial: Any Reasonable Doubt?


Today begins closing arguments in the USA v. Elizabeth Holmes felony wire fraud and conspiracy trial in San Jose California after 14 weeks of testimony and 32 witnesses! We will see how each side argues their case, the law and the evidence. The government makes their closing argument first as it has the burden of proof, followed by the defense and a rebuttal argument, if any, by the government.

Then, jury deliberations begin and it’s up to the jury to decide…

Is it a failed startup, as asserted by the defense? Or, lies, cheating and fraud by Elizabeth Holmes, as asserted by the government?

This is a criminal case so all 12 jurors have to find Holmes guilty to convict of one or more of the 11 wire fraud counts, otherwise, it’s a hung jury or an acquittal. It only takes one juror for Holmes to avoid conviction.

How does the defense or any defendant avoid conviction?

Reasonable Doubt.

Another words, if a juror or jurors are not “firmly convinced” of Holmes guilt, as stated in the jury instructions, they are (and will be) instructed to find Holmes not guilty. It is not beyond all possible doubt.

For example, there may be reasonable doubt as to the investor wire fraud counts. Why? Well, five of the six investors testified that their decision to invest in Theranos was not solely based on the alleged misrepresentations made by Holmes. Some investors testified that they also relied upon advice from personal advisors, other investors and the Fortune magazine article by Roger Parloff. Or, the HIV false positive test supporting one of the patient wire fraud counts, may be argued, it wasn’t really positive, so no foul and no fraud.

Potential reasonable doubt?

Simply my opinion, what say you?

Kyle Rittenhouse Trial: Requesting Drone Video Suggests Possible Hung Jury?

Generally, the more questions a jury asks during deliberation, the more likely a hung jury. The more time a jury deliberates, the more likely a hung jury.

Kyle Rittenhouse’s claim of self-defense may have just been complicated by the juror’s request to see the drone videotape which may indicate self-defense requiring an acquittal or, provocation requiring a guilty verdict. The jury has previously asked for copies of the jury instructions. Typically, video evidence is replayed to the jury in open court, but, the decision is up to the judge.

Either way, it may not be a good sign for the prosecution or the defense, if either expected a quick verdict.

Furthermore, when lesser included offenses are added after evidence has been submitted, it may complicate matters for one or more jurors who may have been viewing the evidence under the charges they were given at the beginning of the case. It’s as if they introduced a new character to a movie in the last 5 minutes. The jury may want to re-visit evidence in light of the lesser included and the jury instructions, both of which will take some time. And, they may want to take their time with the evidence given it is a hotly contested case.

No doubt, there is much discussion on the elements of self-defense and whether provocation occurred to eliminate Rittenhouse’s claim of self-defense. It may be a one-or-the other decision for each juror. Keep in mind, all 12 jurors have to agree to a verdict of not guilty or guilty as to each count, otherwise, it is a hung jury and the case could be re-tried.

Simply my opinion, what say you?

Elizabeth Holmes Trial: Prosecution Witness A Gift to the Defense (Read Eisenman’s email)

Today, in the Elizabeth Holmes fraud trial, the defense may have been given a gift. Turns out, a prosecution witness, Alan Eisenman, whose testimony was necessary to prove count 3 of the indictment when he invested $99K in Theranos in 2013 relying upon the allegedly fraudulent representations of Holmes, may have just been discredited by the defense.


By Eisenman’s own written words…. in an email he sent to the prosecution team in 2018.

Read Eisenman’s entire email

Specifically, the last sentence: “You know I am a faithful part of your team, and will do all I can to help your case”.


Why do his words matter?

It goes to the credibility of a witness.

It shows, arguably, that Eisenman has a bias and/or an interest in the outcome of the trial. Either way, the defense could use Eisenman’s own words to discredit Eisenman’s entire testimony and the jury or a juror could potentially throw out Count 3 of the indictment.

Yes, a juror may always assume a witness has an interest in the outcome, but, to see the following words…”You know I am a faithful part of your team, and will do all I can to help your case” leaves little doubt as to Eisenman’s intention which shows bias and could place doubt on his testimony. Another words, did he testify truthfully or is saying whatever to incriminate Holmes because he wants her convicted for losing his money?

Even with an expected response, “I told the truth in my testimony” from Eisenman on re-direct, his email certainly colors his testimony and veracity.

Furthermore, unlike the other investors, Mr. Eisenman is the only investor so far, who has relied solely on the representations of Holmes and the claims she made (or omitted) during their quarterly phone calls. He never visited the Theranos lab, never got a blood test demo, and never saw any financials. His testimony was a clear path to Holmes culpability. While 4 of the 5 other investor counts do not appear to have a clear path to Holmes. For instance, witnesses have testified that investment decisions, including the De Voss family investment of $99,999,984 and the $5,9999.997 investment made by Daniel Mosley, were not made solely upon the representations of Holmes, but rather, also, upon the advise of their personal advisers, other investors and or the Fortune article written by Roger Parloff. If so, it could raise possible reasonable doubt to defeat those investor fraud counts.

Let’s see what happens on re-direct of Eisenman tomorrow.

Simply my opinion, what say you?

Here’s my legal analysis on the Holmes trial today on KPIX 5 CBS San Francisco.

Elizabeth Holmes Trial: Disregard For Patients Most Damaging Evidence

The most damaging evidence against Elizabeth Holmes is the testimony from the patients who received false test results. The jury has already heard from one patient about the devastating impact of receiving a false test result indicating, incorrectly, that she had a miscarriage. Two more patients will likely testify this week about the impact of receiving false tests from Holmes’ company Theranos. One patient received a false prostate cancer test result and the other a false HIV positive test result, both of which, are devastating news to anyone and their loved ones.

Yet, the resulting impact on patients lives from faulty or potentially faulty tests results from her technology does not seem to have been a concern of Elizabeth Holmes, at least from the testimony the jury has heard so far. Maybe, the defense will illustrate her concern in their case. Otherwise, I doubt the “failed startup” defense will work for the jury. When you jeopardize or gamble with people’s lives, jurors take notice, no matter how revolutionary the technology or the vision.

BTW, four of the twelve counts in the Holmes indictment relate to defrauding patients. One patient count will likely be dismissed due to exclusion of witness testimony for late discovery reasons . However, each count, if convicted, carries a maximum of 20 years in prison.

Simply my opinion, what say you?

Elizabeth Holmes Trial: Roger Parloff Fortune Story May Sink Some Investor Counts

In June 2014, Roger Parloff, a journalist, wrote a glowing cover story in Fortune praising Elizabeth Holmes and her blood-testing company Theranos. The Fortune cover story and potentially Parloff’s testimony may be a problem for the prosecution in the US v. Elizabeth Holmes felony wire fraud trial currently underway in San Jose California.


Well, if the jury finds that an investor relied upon representations made by others regarding Theranos, namely, the statements and representations made by Roger Parloff in the Fortune cover story, prior to the investor’s investment in Theranos, then, the jury may find reasonable doubt as to some of the investor fraud counts.

Another words, it could be argued that the investors relied upon and decided to invest in Theranos because of the now allegedly “materially false and fraudulent representations” made by Parloff‘s story not by Holmes. Or, in the alternative, it was the “representations” of both Holmes and Parloff’s story that induced or caused the investors to invest in Theranos. Given the testimony of investors David Mosley and Lisa Peterson who both testified that they relied upon the Fortune cover story, in addition to the claims made by Holmes, prior to investing in Theranos, counts 1, 7 and 8 of the Holmes indictment may be in jeopardy, specifically, the conspiracy to defraud investors, the $99,999,984 investment from the De Voss family per Lisa Peterson, and the $5,999,997 investment from Mosley into Theranos in October 2014, respectively.

Interestingly, it does not appear that either Mosley or Peterson sued Fortune, Parloff or Holmes for the alleged fraudulent representations. However, Parloff and Fortune, did publish a retraction to the Holmes cover story, “How Theranos Misled Me” in 2015. Prior to Parloff’s journalist career, he was a criminal litigator in Manhattan.

BTW, Parloff’s upcoming testimony in the Holmes trial may be limited subject to this Monday’s motion in limine hearing at 10 am. For example, the Fortune story, parts thereof, or Parloff’s opinion/findings may be excluded from his testimony. The Court may also revisit Magistrate Cousins ruling denying the defense’s request to release of Parloff’s notes for his cover story, presumably sought, to uncover, the exact words or statements made or not made by Holmes.

Simply my opinion, what say you?

BTW, I am providing legal analysis on the Holmes trial. Here are my interviews on CBS 5 KPIX San Francisco and CBS 5.