Former Theranos CEO Elizabeth Holmes' possible defense strategy claiming that her ex-boyfriend and former business partner abused her could benefit her in a high-stakes criminal fraud case, two legal experts told Yahoo Finance. Opening arguments begin Wednesday in a trial that could land her in prison for up to 20 years if she's convicted of using her blood-testing startup to defraud investors and patients.
“I think that [abuse claims] are a possible benefit to her in that if a jury is inclined to acquit her for any reason, it gives them a reason to do so,” Cardozo School of Law professor Jessica Roth told Yahoo Finance this week. “And she’s not taking on any legal burden by raising this defense...if even one juror finds this argument compelling, that could be enough to hang the jury.”
Last week, newly unsealed court documents revealed that Holmes has accused her former boyfriend and ex-Theranos CEO and president Ramesh "Sunny" Balwani of psychologically, physically, and sexually abusing her during their 10-year relationship. Balwani, who denied the abuse claims in a court filing, has also been charged with fraud and is scheduled to be tried separately next year.
“[T]here is a high likelihood that evidence regarding the nature of Ms. Holmes’ relationship with Mr. Balwani will be relevant at trial,” Holmes' attorneys argued in a court document unsealed on Aug. 28.
Holmes suffered “a decade-long campaign of psychological abuse” by Balwani, the documents claim. He allegedly controlled what she ate, how she dressed, and how long she slept. Balwani monitored her phone calls, texts, and emails and threw hard, sharp objects at her, the documents allege.
Did Elizabeth Holmes have the intent to deceive?
Holmes, 37, and Balwani, 56, stand accused of defrauding investors who backed Theranos, and patients who purchased its diagnostic tests, by falsely claiming the company could perform dozens of tests using as little as a few drops of blood taken from a finger stick sample. They are each charged with multiple counts of wire fraud and conspiracy.
Former Theranos CEO Elizabeth Holmes arrives for a hearing at a federal court in San Jose, California, U.S., July 17, 2019. REUTERS/Stephen Lam ·(Stephen Lam / reuters)
“The question for the jury is going to be: Did Elizabeth Holmes have the intent to deceive when she said statements that are untrue?” University of Toledo College of Law professor and former white collar defense attorney, Gregory M. Gilchrist, told Yahoo Finance. (Gilchrist previously handled litigation for the law firm Williams & Connolly, which is representing Holmes.)
Jurors are “going to want to point blame somewhere,” Gilchrist said. "If you’ve got a guy who’s not in the room, and there’s testimony that he was an abuser, and he’s older, and he’s been in business longer, and has more connection with the sophisticated finance of Silicon Valley, then my goodness, what a wonderful place to hang the blame.”
'The jury is likely to want to hear from her'
Holmes' lawyers also made the unusual move of disclosing in closed pretrial hearings that Holmes is likely to take the stand to testify about her relationship with Balwani, who she first met when she was 18. However, defendants often decide to exercise their Fifth Amendment right to decline to testify in their own defense. And Holmes' lawyers, who will put on their case only after the prosecution presents the government's case, may decide it's best for her not to take the stand, according to Gilchrist.
“I can’t imagine going into a trial like this being confident, either way, whether the defendant will testify,” Gilchrist said. “They’re going to see what the government does and then make their decision...I wouldn’t be surprised if no one in the world knows right now.”
However, Roth argued that even though Holmes has every right not to testify, the abuse argument all but commits Holmes to taking the stand. “I think, as a matter of human nature, the jury is likely to want to hear from her, in own words, about the [alleged] abuse,” Roth said.
Holmes' lawyers have reserved the right to call a psychologist who examined Holmes as an expert witness to testify about her relationship with Balwani and about the alleged abuse.
Roth and Gilchrist agreed that taking the stand comes with significant risk.
"She will be subject to cross examination, and the government is often given considerable leeway on cross examination to impeach a witness, including a defendant, by asking about specific acts that they might not otherwise have been able to put before the jury," Roth said.
"The downside of this defense is if the jurors believe that this is a ploy, if they see this cynically, it'll explode. I mean, it's a terrible position to be in, in a trial about your honesty and your integrity, for any juror to start to wonder: Is this right, or was this a convenient story they could tell? That would be a real big risk," Gilchrist said.
SAN JOSE, CALIFORNIA - JUNE 28: Former Theranos COO Ramesh "Sunny' Balwani leaves the Robert F. Peckham U.S. Federal Court on June 28, 2019 in San Jose, California (Photo by Justin Sullivan/Getty Images) ·(Justin Sullivan via Getty Images)
Holmes, once proclaimed the world's youngest female self-made billionaire, has suggested in court documents that she was being controlled by Balwani. It was Balwani, her lawyers allege, who created and prepared certain company financial models presented to investors and to the company’s former business partner, Walgreens. Statements she made about the records, they said, therefore must be weighed in the context of the abusive relationship.
Holmes' lawyers also pointed out that the government's witnesses have raised the possibility that Holmes' relationship with Balwani was questionable.
“Witnesses interviewed by the government have indicated that Mr. Balwani was controlling with Ms. Holmes, that Ms. Holmes was isolated by Mr. Balwani, and that Mr. Balwani was combative with Ms. Holmes,” her attorneys wrote.
"That's certainly something that the government would need to contend with," Roth said, adding that, in order to do so, the government does not necessarily have to disprove the witnesses' claims. "Both things could be true at the same time: She could have been in an abusive relationship with him, and she could have also been acting with full understanding of what she was doing, and the fraudulent intent."
University of Washington History professor Margaret O'Mara said in an interview for Yahoo Finance's documentary film "Valley of Hype" that she wouldn't be surprised if Holmes looked to point the finger at Balwani. "I think he's really critical," O'Mara said. "He's in some ways the bad cop to her good cop."
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.
