Theranos founder Elizabeth Holmes asks court to overturn fraud conviction | Elizabeth Holmes

Lawyers for Elizabeth Holmes, founder of failed blood testing company Theranos, urged judges in a federal appeals court on Tuesday to overturn the fraud conviction that earned her an 11-year prison sentence.

In an appeal hearing for both Holmes and company president Ramesh “Sunny” Balwani, lawyers argued improper procedures and evidence in both cases warrant new trials.

Holmes, who started Theranos as a college student and became its public face, was indicted alongside Balwani, her former romantic partner, in 2018. The two were tried separately in 2022 and sentenced later that year to 11 years and three months, and 12 years and 11 months, respectively.

Her legal team filed an appeal of her conviction in April 2023, but Tuesday marked the first court hearing on the matter.

Amy Saharia, Holmes’ lawyer, told a three-judge panel of the ninth US circuit court of appeals in San Francisco that the Theranos founder believed she was telling the truth when she told investors that Theranos’s miniature blood testing device could accurately run a broad array of medical diagnostic tests on a small amount of blood.

“There were in fact many good people working at Theranos, and believing they had good technology,” Saharia said. “Holmes believed that, and that is what she was telling investors.”

Saharia’s argument also focused on issues with two main witnesses for the prosecution: former Theranos employee Kingshuk Das, who testified as a scientific expert about Theranos’s product and former laboratory director Adam Rosendorff.

Holmes’ team argued Das should have faced cross-examination about his qualifications and the judge should have allowed Holmes to introduce more evidence attacking Rosendorff, including details of a government investigation of his work after leaving Theranos.

Those mistakes could have made the difference in the “close” case, in which jurors were not able to reach a verdict on most counts against Holmes after seven days of deliberations.

The assistant US attorney Kelly Volkar, arguing for the government, disputed that Das had improperly testified as an expert, saying he was called to talk about his personal experience at Theranos. She also said that “it was not really contested that the device did not work”.

The judges had skeptical questions for both sides and did not clearly indicate how they would rule. Circuit judge Ryan Nelson said that, even without the disputed testimony, “there was, it seemed to me, pretty overwhelming evidence”.

Circuit judges Jacqueline Nguyen and Mary Schroeder said that much of Das’s testimony concerned what he observed at the company, not his scientific opinions, as Saharia argued.

Nguyen and Nelson, however, also both told Volkar that they had concerns about what opinions Das was allowed to give during the trial. “I have some problems with how this happened,” Nelson said.

Jeffrey Coopersmith, Balwani’s lawyer, argued that prosecutors had gone beyond what was in the indictment against his client by introducing evidence that the commercial testing technology Theranos secretly used was not reliable.

The judges appeared more skeptical of that argument, though again did not clearly signal how they would rule. Appeals can take weeks or months to be decided. Representatives from Holmes’s legal team did not respond to request for comment.

Reuters contributed to this report

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