Holmes May Get a New Trial on Basis of Witness Tampering

It appears as if Elizabeth Holmes still has some cards to play. Oct. 17 was supposed to be the date that sentencing came down on the former Theranos founder and chief executive officer after being convicted on four of 11 counts of fraud for her role in the infamous blood-testing scam that captured the nation’s attention. But now Holmes and her attorneys are seeking a new trial—and they may just get it. After an online hearing, Northern District of California federal judge Edward Davila postponed sentencing for at least one month to consider new evidence of possible government misconduct in its handling of the testimony of a key witness.

A Case of Witness Remorse

At the center of this bizarre new twist is former Theranos lab director Adam Rosendorff. During the trial, Rosendorff testified that he quit Theranos after realizing that the firm’s touted finger prick technology didn’t work. “There was tremendous pressure at the company to show that this technology was successful,” he told the jury, according to a CNBC report. “I felt that it was a question on my integrity as a physician not to remain there and to continue to bolster results I essentially didn’t have faith in.”

But Rosendorff apparently had mixed feelings about the Jan. 3, 2022, guilty verdicts. According to court documents, on Aug. 8, he called Holmes’ lawyer and left a voicemail asking to meet with Holmes at her house. Just over an hour later, he decided to show up at the house. He didn’t get to talk to Holmes but he did speak with her partner, William “Billy” Evans. Rosendorff appeared at the front door looking disheveled and anxious, his shirt untucked and his voice shaking, according to Evans’ statement.

Evans says he told Rosendorff to leave but that the former prosecution witness kept on talking, expressing the guilt he felt for the way things went during the trial. It’s not that unusual for witnesses to feel remorse and a sense of guilt for the “wrongs” their testimony inflicts on parties to a trial. But actually showing up at a defendant’s home to apologize after a trial is “unusual,” according to Judge Davila. “I will say I haven’t seen a case where this happened before,” he told CNN.

But what really caught the judge’s attention is what Rosendorff allegedly said. According to the briefing filed by Holmes’ lawyers, Rosendorff told Evans that “he tried to answer the questions honestly but that the prosecutors tried to make everyone look bad” and portray the things that happened at Theranos to appear worse than they actually were. The suggestion that the prosecution manipulated Rosendorff’s testimony was serious enough to warrant a new evidentiary hearing.

What is Next for Elizabeth Holmes?

The fact that Rosendorff was the witness who wigged out is not without significance. During the trial, Holmes’ lawyers expressed concerns about Rosendorff’s potential bias and inclination to help the prosecution, given that activities at three of the positions he held after leaving Theranos were under government investigation at the time.

After Holmes moved for a new trial, Rosendorff filed a sworn declaration with prosecutors stating he stands by his testimony “in every respect,” according to the CNN report. But he also said he felt “compassion” for Holmes and her partner Sunny Balwani, “and even more so for the members of their families who were not responsible for their conduct but will be affected by the punishment they may receive.”

Meanwhile, Holmes remains free on bail. The new evidentiary hearing will take place on Oct. 17, the original sentencing date. If the charges of witness manipulation stick, she may get a new trial. And if Holmes does get a new trial, Balwani has an excellent chance at getting one, too. If Judge Davila concludes that witness tampering didn’t take place, sentencing will occur sometime between November and January, with Holmes facing up to 20 years in prison and a $250,000 fine for each of the four counts, plus restitution for one count.