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.

How?

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”.

Ouch.

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: 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.

Why?

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.