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Convicted Theranos founder and CEO Elizabeth Holmes has made a last-ditch effort to avoid surrendering to federal prison authorities on Thursday, April 27.
A motion for release pending appeal, filed by Holmes’ lawyers in the U.S. Court of Appeals for the 9th Circuit on Tuesday night, April 25, challenges the ruling by U.S. District Judge Edward Davila denying Holmes’ request to remain free on bail until the higher court resolves her appeal.
Under 9th Circuit rules, the filing of the motion automatically suspends Holmes’ current prison reporting date until the court rules on her bail request.
Last week, Holmes’ lawyers filed a brief laying out the arguments for reversal of her conviction, arguing that the result was “unjust.”
Central to the brief’s arguments is the theme that Holmes, who was found guilty of four counts of defrauding investors, never “knowingly misrepresented the capabilities” of the flawed fingerstick blood-testing technology developed by her Palo Alto-based company.
Instead, Holmes contends, she relied on the scientists in her lab and believed that the technology worked.
The jury’s decision to the contrary, Holmes says, was due to incorrect evidentiary rulings by Davila, including the admission of testimony by the last Theranos lab director about his decision to void all of the blood tests administered by the company.
The lab director, Dr. Kingshuk Das, testified that he did a “comprehensive retrospective analysis” of the Theranos machines, known as Edisons, and found “possible patient impact for every test reported.”
Holmes argues that this after-the-fact analysis amounted to an expert opinion, which under the rules of evidence had to be disclosed in advance.
The brief also challenges a ruling by Davila excluding evidence that Holmes’ business partner, former lover and fellow convict Ramesh “Sunny” Balwani, took “sole responsibility” for the financial operations of the company.
Even if the conviction is upheld, Holmes alleges that her sentence of 11 years and three months was based on an improper calculation of the number of victims of the fraud and amount that investors lost.
Holmes’ appeal is supported by the National Association of Criminal Defense Lawyers, which filed a friend-of-the court brief earlier this week arguing that the admission of Das’ testimony was erroneous and that Holmes’ conviction should be reversed.
The appeal is expected to take months, if not years, to complete.
