Elizabeth Holmes, the infamous medtech scammer, should finally face trial this August, but her legal team is trying its best to get the charges dropped. A motion to dismiss the criminal charges against Holmes and Sunny Balwani (the former president of Theranos) was filed in December and was brought forth in court on Monday, according to Bloomberg.
The motion claims that the eleven-count indictment centered on wire fraud lacks specificity regarding any misrepresentations made by Holmes or Balwani. The team asserts that they cannot mount an adequate defense unless more details are provided, and if they’re not, the case should be thrown out.
A refresher — In case you miraculously haven’t heard, Elizabeth Holmes founded Theranos, a company that claimed to create a machine that can perform rapid, comprehensive blood tests from a finger prick. That machine did not work as intended and often, not at all. The years leading up to its launch, however, drew widespread media and investor attention to the tune of $700 million.
In Theranos’s highly publicized fall from grace, Holmes settled a civil case with the SEC back in 2018. She is also reportedly having trouble paying for her lawyers in a class-action suit against the company and Walgreens, which carried some of the machines. This federal criminal case accuses Holmes and Balwani of two counts of conspiracy to commit wire fraud and nine counts of wire fraud.
Grasping at straws — The defense claimed "the indictment is full of ambiguity and fudging language, the government is inserting these phrases so they can shift their theory as they go along in the trial," and the government can’t prove the tests inflicted any harm.
The defense also asserted that of the 100 blood tests actually made by a Theranos machine, only eight were reported as inaccurate in the indictment. By the way, the reason there are so few blood tests is many were done in the traditional way because, again, the machines did not work. The discovery for this case includes about 20 million documents that span years of alleged misrepresentations.
“The defense has been litigating this case for 20 months now. If they truly didn’t understand the nature of the allegations they would have raised this issue earlier,” said Assistant U.S. Attorney John Bostic.
Holmes’s lawyers should have a clearer scope of what the federal prosecutors will target at trial at this point, which is not expected to last more than a few months. Large discoveries can be a tactic used by corporations and the government to obfuscate evidence or buy time, but prosecutors claim they’re bursting with proof. That would suggest there are 20 million documents that support a years-long pattern of deception to investors, medical professionals, and the general public.
Though the defense’s request for a bill of particulars (which is not legally required) was declined in May 2019, the prosecution offered an index instead:
“To assist the defense in understanding the charges and in navigating the discovery, we are prepared to provide you in advance of the July 1  status conference with a complete index of the government’s production. That index should allow the defense to more easily identify the bates locations of documents obtained from various sources during the government’s investigation.”
It’s unclear whether the defense requested this index. The above quote is from an email the defense submitted themselves as evidence for the motion. If found guilty, Holmes and Balwani face up to 20 years in prison.