Theranos’ Elizabeth Holmes must report to prison this month despite pending appeal, judge rules

Theranos’ Elizabeth Holmes must report to prison this month despite pending appeal, judge rules

Elizabeth Holmes must report to prison at the end of this month as previously scheduled, the judge in her case ruled this week, shutting down the disgraced Theranos founder’s bid to delay her sentence while she appeals her conviction.

In an order filed Monday, Judge Edward Davila pushed back on claims from Holmes’ legal team that the ongoing appeal will result in either a reversal of one or all of her four guilty verdicts or a full retrial. Instead, Davila upheld the court’s previously set surrender date, which mandates that Holmes turn herself in by 2 p.m. local time April 27.

Though the location where Holmes will proceed to begin her 11.25-year prison sentence has yet to be publicly confirmed, Davila recommended after handing down the sentence in November that she be sent to the minimum-security, all-women federal prison camp in Bryan, Texas, and that she be granted family visitation rights.

Holmes’ ex-boyfriend and former business partner Ramesh “Sunny” Balwani previously lost a similar bid to delay his own 13-year sentence, though he did successfully push back his surrender date about a month, to April 20, after filing a last-minute appeal of that denial—a move that Holmes could potentially use to put off her own sentencing start for a few more weeks.

A judge can choose to allow a convicted defendant to remain out of jail pending appeal if they’ve been able to prove that they don’t pose a danger to their community, aren’t likely to flee and have filed the appeal not only for legitimate reasons, but also with a high likelihood of winning a reversal or retrial.

On the first two counts, Davila agreed with Holmes’ team. Holmes no longer has access to the “influence and position at Theranos” that enabled her to defraud investors in the blood-testing startup, leading to her convictions, Davila wrote, and therefore poses no serious risk of repeating those crimes in her current community.

Meanwhile, government prosecutors had tried to paint Holmes as a “flight risk” after discovering that her partner, Billy Evans, had purchased one-way flights to Mexico for both of them shortly before her trial had been decided early last year—though only Evans ended up taking the trip. Though Davila agreed that booking the flights before the verdict was a “bold move” and that failing to immediately cancel them after Holmes had been found guilty was “a perilously careless oversight,” he refuted the prosecutors’ categorizations of the travel plans as an attempt to flee and of Holmes as a flight risk.

In the latter conclusion, he cited her two young children, her lack of ties abroad and the high likelihood that she would be immediately recognized while trying to flee as well as the facts that Holmes has surrendered her passport to authorities and that her parents’ home is being held as collateral against her bail bond.

As for the question of the appeal itself, though Davila concluded that it hasn’t been brought merely to delay Holmes’ sentence, he didn’t agree with her attorneys’ view that it’s likely to end in her favor,

Holmes’ team has raised issues with a number of points that came up during her trial. They include, in part, the court’s decision to exclude from the trial a deposition testimony in which Balwani had admitted to taking the lead in handling some of the company’s financial models and projections; its inclusion of evidence of “misrepresentations that Theranos provided to the military”; and evidentiary rulings related to the inaccuracies of Theranos’ blood-testing technology—though even her attorneys have noted that this evidence doesn’t directly pertain to the act of defrauding investors on which she was convicted.

Holmes’ team also argued that “the court had erred in denying all three of her motions for new trial based on newly discovered evidence”—to which Davila responded that the defense team has failed to provide enough proof that the evidence would substantially Holmes’ guilty verdicts into question.

Indeed, after examining all of those points of contention, Davila concluded that he had been “unable to find that [Holmes] has raised a ‘substantial question of law or fact’” that would result in a reversal or retrial.

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