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Elizabeth Holmes appears to gain ground as her appeal is heard


A lawyer for imprisoned fraudster Elizabeth Holmes on Tuesday appeared to make headway with the trio of judges weighing her bid for a new trial.

Holmes, 40, was convicted by a jury in early 2022 on four felony counts of defrauding investors in Theranos, her now-defunct Palo Alto blood-testing startup. On Tuesday her appeal was heard in the U.S. Court of Appeals for the Ninth Circuit in San Francisco, with one of her lawyers and a prosecutor facing off before a three-judge panel.

Holmes lawyer Amy Saharia claimed Judge Edward Davila, who presided over the trial in U.S. District Court in San Jose, had improperly allowed former Theranos scientist Dr. Kingshuk Das to give expert testimony before the jury. Appellate court Judge Ryan Nelson indicated in comments Tuesday that she may have a point.

“There’s a pretty good story here for Ms. Holmes,” Nelson said. “They do have a pretty good basis for some unfairness here.” Even so, he noted that her conviction is supported by “pretty overwhelming evidence.”

Much of the 50-minute hearing was consumed by arguments over whether the judge in Holmes’ trial broke court rules by letting Das tell the jury his opinions about how poorly Theranos’ technology performed. Appeals courts can order new trials if they find trial judges made mistakes that damaged a defendant’s case.

Jurors in Holmes’ four month trial in San Jose U.S. District Court heard that Das’ examination of Theranos’ processes and technology led him to void all the test results — 50,000 to 60,000 of them — from the company’s problematic ‘Edison’ blood-analyzer devices. Das told the jury that after he informed Holmes that her devices “were apparently malperforming from the very beginning,” she countered with an “alternative explanation” that the problems arose from the company’s quality-assurance processes, not its machines.

But Saharia argued that statements by Das, including, “I found these instruments to be unsuitable for clinical use,” broke court rules and jurors should never have heard them. His testimony about whether the technology worked represented opinions based on scientific evidence, and under court rules, such statements in a jury trial can only come from witnesses who go through the court process of being deemed experts, Saharia argued.

Nelson said he had “some problems” with the testimony Davila allowed Das to provide, and suggested that prosecutors used Das to “to get in some of that testimony” that should have only come from an expert witness.

Federal prosecutor Kelly Volkar told the judges Davila “carefully parsed” Das’ testimony and sustained several objections from Holmes’ lawyers when Das was being questioned on the witness stand.

“This was a case where every issue was often litigated to death,” Volkar said, adding that Davila “took great care in making rulings.”

Judge Jacqueline Nguyen said Davila properly allowed Das to discuss what he told Holmes. But Nguyen appeared to agree that the testimony requiring “highly specialized knowledge” was not appropriate for a witness not court-approved as an expert.

Saharia said Holmes’ legal team does not dispute that Theranos testing was inaccurate.

“The central issue in this …read more

Source:: The Mercury News – Entertainment

      

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