As the date for Elizabeth Holmes to begin serving her sentence approaches, prosecutors and defense lawyers are fighting over whether she should be allowed to stay free while her appeal is resolved.
After a four-month trial, a jury convicted Holmes of four counts of wire fraud and conspiracy based on her false statements about the accuracy and reliability of Theranos' much-touted fingerstick blood-testing technology. The company was based in Palo Alto until it shutdown in 2018.
In November of 2022, Judge Edward Davila of the Northern District of California sentenced Holmes to 135 months in federal prison. Under the judge's order, Holmes must surrender to federal custody on April 27.
In a motion filed after the sentencing, Holmes' lawyers argued that she should be allowed to keep her freedom until a higher court reviews the result. The motion for bail pending appeal argues that there are "substantial questions" about rulings made during trial, such as whether the court improperly admitted evidence that the Centers for Medicare & Medicaid Services issued sanctions after it investigated the Theranos lab, and that a new lab director ordered that all tests run on patients on Theranos machines be voided.
Prosecutors responded to Holmes' bail motion by arguing that she has already received better treatment than most criminal defendants, through the court's decision to give her a "generous self-surrender date ... at least in part because Defendant informed the Court that she became pregnant with her second child between the jury returning a guilty verdict against her and her sentencing date."
Nor has Holmes, prosecutors argued, met the high standard for release pending appeal: "every defendant seeking bail pending appeal after her conviction and sentencing is presumed to be a danger and a flight risk — and it is the defendant's burden to overcome that presumption."
The prosecutors' brief recites an incident from January of 2022, following the verdict, when they learned that Holmes had booked a one-way trip to Mexico with her partner, William Evans.
Prosecutors say they promptly notified Holmes' lawyers that such a trip would violate her bail conditions.
In the prosecution's telling, "(o)nly after the government raised this unauthorized trip with defense counsel was the trip canceled."
The prosecutors' reliance on the canceled Mexico trip as another reason for Holmes to surrender in April has defense lawyers crying "foul."
In a motion to strike filed Monday morning, defense lawyers say that the government's characterization of last year's brouhaha as evidence of Holmes' intent to flee is "provably inaccurate."
Holmes lawyers say that they explained to prosecutors at the time that the Mexico trip was only to occur if the jury acquitted Holmes of all counts, and that Holmes could not possibly have left the country absent an acquittal because the government had her passport.
That passport, defense lawyers added, had expired.
Holmes' lawyers attached an email from lead prosecutor Jeffrey Schenk back in January 2022, in which he seemed to agree that Holmes was not attempting to violate her bail conditions after her conviction.
"I suspected there was an explanation," Schenk wrote, after being told that Holmes had not yet canceled the ticket but did not intend to use it.
The motion to strike, as well as the request for bail pending appeal, will be heard by Judge Davila on March 17.