Theranos founder Elizabeth Holmes, convicted of fraud in January, on Tuesday demanded a new trial, saying a key prosecution witness showed up at her home appearing distressed and apparently remorseful over his testimony against her.
Former Theranos laboratory director Dr. Adam Rosendorff had testified that Holmes’ now-defunct Palo Alto blood-testing startup “valued PR and fundraising over patient care,” and that he felt “obligated from a moral and ethical perspective to alert the public” about the company’s inaccurate test results. In response, a lawyer for Holmes told jurors during the four-month trial in U.S. District Court in San Jose that Rosendorff’s “incompetence” was behind problems in the startup.
On Tuesday, lawyers for Holmes filed a motion for a new trial, claiming Rosendorff appeared at Holmes’ house Aug. 8 around 6 p.m. in apparent distress, telling Holmes partner Billy Evans, with a “trembling” voice, that he had to talk to Holmes. “Mr. Evans explained that Ms. Holmes could not talk to anyone and that Dr. Rosendorff needed to leave,” the motion said.
Rosendorff drove off in his car but headed the wrong way, and when Evans went out to point him in the right direction, the two talked again through the car’s window, according to the motion.
Rosendorff told Evans it would be “healing for both himself and Elizabeth to talk,” the motion claimed. Rosendorff told Evans that while on the witness stand he had “tried to answer the questions honestly but that the prosecutors tried to make everyone look bad,” the motion alleged. Federal prosecutors “made things sound worse than they were when he was up on the stand during his testimony,” Rosendorff allegedly told Evans.
Rosendorff, the former top lab official at Theranos, noted that his time there came early in his career, and in Holmes’ career, and that “everyone was just doing the best they could” and “working so hard to do something good and meaningful,” the motion claimed. He felt “guilty” and like “he had done something wrong,” the motion alleged, adding that he made those statements “apparently in connection with his testimony in Ms. Holmes’ case.”
Such issues were “weighing on him” and “he was having trouble sleeping,” Rosendorff allegedly told Evans.
Prosecutors in their closing statement in Holmes’ trial mentioned Rosendorff more than 50 times, the motion said.
A man who answered a phone number listed under Rosendorff’s name said Rosendorff was not available, and when asked if he was Rosendorff said he was going to “terminate the call” and hung up. Federal prosecutors did not immediately respond to requests by phone and email to comment on Holmes’ claims in her bid for a new trial.
Holmes, who founded Theranos in 2003 as a Stanford University dropout, was found guilty by a jury of defrauding investors of more than $144 million, and conspiring with her former lover and the company’s chief operating officer Sunny Balwani, as she raised money for her purportedly revolutionary startup. The company attracted a high-profile board, including former U.S. Secretary of State Henry Kissinger and former U.S. secretaries of defense James Mattis and William Perry, and wealthy investors including Walmart’s Walton family and media tycoon Rupert Murdoch. The company went under in 2018 as Silicon Valley’s most-notorious startup crash after Holmes was hit with fraud charges.
Her trial drew world-wide attention, and the case has generated three documentaries, a TV series, a best-selling book and an upcoming movie that reportedly will star Jennifer Lawrence as Holmes.
Holmes’ motion also said that shortly before Rosendorff allegedly appeared at Holmes’ house, he left a 30-second voicemail for Holmes’ lawyer Lance Wade, saying he wanted to try to visit her at home and thought it would be “quite healing” for both of them. Rosendorff, according to the motion, wanted Wade to arrange the visit, but Wade did not respond directly to Rosendorff for ethical reasons, the motion said. The next day, Wade called the lawyer who had appeared with Rosendorff during the trial, according to the motion. “The attorney responded that there was no need for Mr. Wade to return the call,” the motion said.
Holmes’ motion also accused Rosendorff of providing trial testimony biased in favor of the federal prosecution because at the time there were “pending investigations” by the federal company into three companies where he had worked after quitting Theranos in 2014.
Holmes had previously tried to get the jury’s verdict thrown out permanently, with no new trial, claiming the evidence presented during the trial did not support her conviction, but last week, Judge Edward Davila, who presided over her trial, issued a preliminary ruling denying the attempt. On Tuesday, Davila issued a written order that upheld the jury’s verdict.
Lawyers for Holmes argued in the motion that the purported “new evidence” concerning Rosendorff threw the jury’s decision-making into question. “If the jury had heard from Dr. Rosendorff that the government cherry-picked evidence to make things seem worse than they were and that everyone was doing their best and working hard to do something good and meaningful, the jury would have viewed this case very differently,” the motion claimed.
Absent a new trial, Davila should at least hold an evidentiary hearing “to determine the meaning of Dr. Rosendorff’s statements and to determine whether any government misconduct occurred,” the motion said.
Jurors found Holmes not guilty on four charges of defrauding patients. She gave birth to a son in July 2021, and remains free on a $500,000 bond. Balwani was convicted in July on 10 fraud counts.
Holmes is due to be sentenced October 17, after Davila in July changed the date from September 26. The clerk’s notice from U.S. District Court in San Jose provided no explanation for the delay.