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A federal judge on Wednesday rejected a request by former Theranos CEO Elizabeth Holmes to disregard customer complaints, test results and a regulatory report of her upcoming trial for criminal fraud related to the failed blood test startup. Accordingly, patients who have complained about inaccurate test results will be allowed to testify.
In a request to suppress the evidence, Holmes’ attorneys argued that the government should be barred from presenting Theranos test results at trial because a now-destroyed corporate database could have helped it refute the claims that tests could not always produce accurate and reliable results. .
Theranos gave a copy of the database, which stored blood test results, to the government on an encrypted hard drive before destroying the original database. However, the government later realized that it could not access the copy of the database.
“[Holmes] argues that allowing the government to use this evidence as “evidence of fraud” after failing to collect and preserve the database would violate its rights to make a full defense and due process, because the entire the … was necessary to refute that evidence, ”Judge Edward Davila wrote in his order.
“The preliminary question for the court is whether the database is potentially exculpatory,” he added, using a term referring to evidence that exonerates a person.
Davila said that in the end, Holmes failed to demonstrate that the database was so essential to his defense that the government’s actions to keep it or not keep it were enough to hide his other evidence from the jury.
“Holmes is not claiming that the database is materially exculpatory, but rather argues that it is potentially useful evidence,” Davila said. “The database information alone would not conclusively determine whether Theranos’ blood tests were accurate, and it could just as likely contain incriminating evidence to the contrary.”
Holmes’ defense team accuses the government of failing to preserve the database after its defense attorneys returned it. But prosecutors say Holmes deliberately thwarted government efforts to gain access to the database by providing a password, with no private key needed.
At the time of the database transfer, an email from Holmes’ attorneys included the password, but failed to mention that a private key would also be required for access, according to the judge’s ruling.
Without the database, Holmes’ attorneys argued, anecdotal evidence from clients and a report from the Centers for Medicare and Medicaid Services (CMS), a federal agency that oversees lab operations, is too prejudicial to his defense. The CMS report, released in January 2016, alleged deficiencies identified during the agency’s inspection of the Theranos laboratory in Newark, California.
Holmes is charged with wire fraud and conspiracy to commit wire fraud against investors and patients of Theranos. The charges carry penalties of up to 20 years in prison.
In May, the court dismissed Holmes’ request to exclude anecdotal evidence, saying “[e]whenever a Theranos client has paid for an accurate and reliable blood test based on Holmes’ statements and has not received such a test, that experience alone is proof of the fraud. “
Other pre-trial motions are pending in court, including requests by Holmes for the court to require additional care in the selection and questioning of jurors. The documents – a proposed jury questionnaire and proposed jury instructions – highlight the challenges Holmes’ lawyers face in assembling a jury unscathed by the flood of published media coverage of the fall of Holmes and Theranos .
Jury selection for Holmes’ trial is scheduled to begin on August 31. A separate trial for his co-accused, Ramesh “Sunny” Balwani, is scheduled to begin in January 2022.
Alexis Keenan is a legal reporter for Yahoo Finance and a former litigation lawyer. Follow Alexis Keenan on Twitter @alexiskweed.
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