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.
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?