Elizabeth Holmes trial: Closing arguments begin

By Sara Ashley O’Brien, CNN Business

The government began its closing arguments in the criminal fraud trial of Elizabeth Holmes on Thursday by stressing that the former CEO and founder of Theranos made a choice to lie to investors as her blood-testing startup was running out of money.

“She chose fraud over business failure. She chose to be dishonest with investors and with patients,” prosecutor Jeffrey Schenk said in his closing remarks. He noted that the decision was not only “callous” but criminal.

The closing arguments cap off a high-profile trial that has gone on for more than three months. During its case, the prosecution called 29 witnesses including former Theranos employees, scientists, investors and even a former Secretary of Defense as it sought to illustrate how Theranos’ technology fell far short of its claims as well as how it overstated its financials, misled investors about partnerships and leveraged the media to perpetuate its claims, all while pinning Holmes at the center of it all.

In his closing argument, Schenk launched into a presentation with each of the government’s witnesses in the order they testified, featuring photos and excerpts of their testimonies. He explained to jurors that while some of the third parties that jurors have heard about through the trial, such as Walgreens, Safeway and Department of Defense, are not victims tied to the charges, the “false statements” made to each are relevant because “you begin to see the scheme going on … it is all the same scheme.”

The defense, on the other hand, painted a vastly different picture for jurors, resting its case almost entirely on Holmes — one of only three witnesses it called — who spent seven days on the stand. She represented herself as a genuine believer, pointing the finger at others and at times expressing contrition all while maintaining that she never intended to deceive.

“The defense will concede that mistakes were made at Theranos, and that Holmes has already paid a high price for them, but that these mistakes were not crimes and they do not justify putting a young mother in prison,” said George Demos, a former Securities and Exchange Commission prosecutor and adjunct law professor at the UC Davis School of Law.

The jury of eight men and four women will ultimately have to decide whether they believe Holmes lied and cheated for financial gain or whether she was a young innovator who simply made mistakes and trusted the wrong people.

Holmes, 37, faces nine counts of federal wire fraud and two counts of conspiracy to commit wire fraud over allegations she lied to investors, doctors and patients about her company’s ability to accurately and reliable conduct blood tests using just a few drops of blood between 2010 and 2016.

She struck up partnerships with two major retailers — Walgreens and Safeway — and raised $945 million from investors, ultimately valuing the startup at $9 billion and making herself, for a time, a billionaire. She was lauded on the cover of magazines and hailed as the next Steve Jobs. But after a 2015 Wall Street Journal investigation poked holes in the company, its business started to unravel.

Holmes, a Stanford dropout who started Theranos at age 19, faces up to 20 years in prison as well as a fine of $250,000 plus restitution for each count of wire fraud and each conspiracy count. She has pleaded not guilty.

The public interest in Holmes hasn’t faded since her downfall. There are documentaries, a forthcoming limited series and a planned feature film. That interest was evident outside the courthouse Thursday where 34 members of the public and press had lined up before 4 a.m. local time to get a seat in the main courtroom. There are just 34 seats available, plus another roughly 45 spots in an overflow room. The trial is not being televised.

In order to convict Holmes, prosecutors need to convince jurors of Holmes’ intent. The prosecution and defense have been arguing over definitions for words like “knowingly” and “willfully” in finalizing jury instructions. The instructions will be read aloud to jurors before deliberations.

“Cases can be won or lost depending on how the judge words the instructions,” said Miriam Baer, a law professor at Brooklyn Law School, telling CNN Business that jury instructions are “a legal road map for the jury.”

Holmes was first indicted more than three years ago. Her trial was delayed several times due to the pandemic and then the birth of her first child in July.

On the stand, Holmes also offered up a new dimension to her story, claiming that while at the helm of Theranos, she was the victim of a decade-long abusive relationship with Ramesh “Sunny” Balwani, the company’s chief operating officer and president. (Balwani has denied the abuse allegations in court filings. He faces the same charges as Holmes and is set to be tried early next year. He has pleaded not guilty.)

As Laurie Levenson, a professor at Loyola Law School and former federal prosecutor, previously told CNN Business, the case may come down to Holmes’ credibility as a witness and defendant: “This case is very much about who is Elizabeth Holmes and how opportunistic is she that she’ll say whatever the moment requires her to say.”

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