Elizabeth Holmes lays out appeal, attacks ‘unjust conviction,’ ‘severe’ sentence

Theranos founder Elizabeth Holmes’ fight to get her jury’s verdict overturned or her prison sentence reduced for defrauding investors has officially entered its final chapter. The convicted felon late Monday filed an appeal document claiming her conviction was “unjust” and should be thrown out, or that she should be re-sentenced.

Holmes’ legal filing also revealed the massive scale of her appeal of her conviction on four counts of fraud, and her sentence of more than 11 years in prison. Her last-ditch bid for freedom or reduced prison time will be based on nearly 10,000 pages of transcripts from her four-month trial and more than 16,000 pages from other court records, according to the filing in the U.S. Court of Appeals for the Ninth Circuit.

In the filing, Holmes, 39, claimed that although federal prosecutors in her trial focused on the allegation that she intentionally misrepresented to investors the capabilities of Theranos’ technology, “the reality differed significantly” from that argument.

“Highly credentialed Theranos scientists told Holmes in real time the technology worked,” the filing said. “Outsiders who reviewed the technology said it worked.”

Prosecutors made the case that while Holmes and her now-defunct Palo Alto blood-testing startup touted the ability to conduct a full range of blood tests using just a few drops of blood from a finger-stick, the firm’s machines could in reality only perform a handful of tests. Jurors heard testimony that the company’s machines suffered from significant inaccuracy problems.

Holmes, when she took the witness stand in November 2021 during her trial in U.S. District Court in San Jose, told the jury she believed her company had developed technology capable of performing any blood test.

However, jurors also heard about a litany of misrepresentations and deceptions by Holmes, who admitted on the stand that she had pilfered pharmaceutical company logos and put them on glowing internal Theranos reports sent to investors.

In her filing Monday, Holmes argued that Judge Edward Davila during her trial had “flouted the Federal Rules of Evidence” by allowing the jury to hear testimony from an expert witness presented as a layman; to hear about an “unfairly prejudicial” federal regulator’s report into Theranos; and to learn that the company had voided all the test results from its own machines so that “the jury likely was confused into thinking it was an admission that Theranos’ technology did not work.” Davila also “abused” his judicial discretion by excluding testimony by Theranos president Sunny Balwani during his separate fraud trial that he was responsible for the model that produced exaggerated financial projections given to some investors, the filing alleged.

Legal experts have said Holmes’ appeal is a long shot, given how comprehensively Davila has addressed — during the trial and in her multiple subsequent bids to get her conviction thrown out — her claims about improperly introduced evidence and other matters. According to the federal courts system, the vast majority of appeals fail.