With the first trial now behind us, on Tuesday 12 December, jurors will hear testimony from Elizabeth Holmes, now the only person to be tried for crimes related to fraud, brought about by a ruthless focus on profit to the detriment of investors.
During the trial that began on 9 November, the jury has listened to key witnesses at the heart of what has gone wrong: one of Holmes’s former subordinates, CFO John Kelly, and her sole investor, Martin Shkreli, after which the 18-week trial will finally be upended when Holmes takes the stand.
During the trial, Holmes looked visibly stressed, often absent-minded or distracted as the testimony of a long list of witnesses from within the Holmes family and her company, Theranos, took its toll. She frequently removed her glasses to get a glimpse of how something is being described and then, when shown an image, quickly turned to the side to avoid seeing the details of the explanation.
Joshua T. Lowell, Holmes’ attorney, on the other hand, has been relentless in his pursuit of his client and her story of innovation. His urgency to cast doubt on Holmes’s colleagues was displayed in the way he put together the narrative about Holmes himself.
“Elizabeth had a very simple mindset,” he explained. “If she believed in something, she didn’t stop.” His persistence wasn’t a desperate attempt to change the narrative, but more of a piece to the larger defense set up in front of the jury. But after the well-received opening arguments (which were presented by a different defense attorney during the first week of the trial), the narrative was still largely intact.
The grand jury indictment states that Holmes’s continued fraud when she testified to a Senate committee in 2016 was designed to support the claimed values of the company, including her own. Kelly’s account has been portrayed as Holmes’ friend and confidant; the evidence against Holmes during the trial did not match Kelly’s narrative of a grieving friend.
Unlike in Holmes’ previous trial on fraud charges last year, defense attorneys have an uphill battle against their primary allegation and are hoping that the jury will see it from a different perspective.
“What was Ms Holmes’s ultimate concern – making money or saving the world?” he asked on the first day of Holmes’ testimony.
“I was always pushing her to do more,” Kelly answered, testifying about the team’s efforts to accomplish greater things with each new reporting cycle.
As Holmes took the stand on Tuesday, several revelations and takeaways emerged. Let’s review:
– Holmes will not testify. Nor did she want to. She has been the subject of all the prosecution’s focus and frequently seemed perturbed to be called on to testify and not really ready for it. It’s her first time on the stand since her initial court appearance last September. At that point, Holmes and Lowell were always prepared to handle any questions or comments from the jurors during her testimony. This time, Holmes didn’t want to make any statement at all. This way, she was on par with her co-defendants, though in a notable hole.
– During testimony, Holmes grew increasingly uncomfortable as the case was reduced to a data visualization.
– Holmes is afraid to tell the truth under oath. The jury and prosecutors sat through the more than 30 pages of evidence that described her life and work. And still Holmes often told a more detailed story that the prosecution had presented. Her confidant, John Kelly, often indicated they had conversations about details that were disclosed under oath.
– Potential investors don’t have to live a specific life philosophy to invest in Holmes. In some ways, it was unseemly for defence attorneys to argue there were no legitimate reasons for investors to invest and then bring in evidence that investors were being pushed or manipulated into taking money from their own bank accounts, perhaps in order to cover up another misappropriation of funds by the defendant. At one point, the defense argued Holmes didn’t need to live a life of total transparency in order to help the company succeed. The US justice department, therefore, pushed to bring charges against Holmes, even if she ultimately didn’t do anything illegal.
– Theranos is facing grave challenges.
Even a hint that the company is up for sale isn’t music to Holmes’ ears.