If Elizabeth Holmes testifies in her own criminal trial, video recordings could be an indication of how she will fare on the stand.
Twelve days after she was charged with fraud, Holmes, the CEO and founder of Theranos, sat for nearly four hours of testimony in which she hardly answered any questions. But in statements that were part of a lawsuit and SEC investigation into the company, Holmes said she was the ultimate decision maker at Theranos, an issue her legal defense team tries to downplay in their criminal trial.
The June 27, 2018 video testimony received from CNBC was in connection with a late-stage investor lawsuit against Holmes, her blood testing company Theranos and company president Ramesh “Sunny” Balwani.
“I will follow my attorney’s instructions,” Holmes said repeatedly to attorney Reed Kathrein, who represented the investors suing Theranos in Berkeley, California.
“She was one of the calmest witnesses I have ever had,” said Kathrein in an interview with CNBC earlier this week. “Of course she didn’t answer any questions, but I’ve never seen anyone maintain the composure, persistence, and eye contact all the time. While I make some pretty harsh accusations, she never crossed my mind” with anger. “
This investor lawsuit has been settled. While the conditions were kept confidential, Kathrein said that its customers would get the money invested back.
In the statement, Holmes wouldn’t even acknowledge that it is her when she made her appearance on CNBC’s “Mad Money” in October 2015.
As prosecutors finalize their case over the next few weeks, the question arises whether Holmes will take a stand in her own defense.
Her lawyers have signaled that she wants to accuse Balwani, her former friend and top manager, of controlling and manipulating her. Unsealed court records claim Holmes alleged that Balwani sexually and emotionally abused her, which affected her judgment at Theranos.
Balwani denies the allegations.
“Ms. Holmes is likely to testify herself the reasons why she believed in Mr. Balwani, relied on him and submitted to him,” wrote Holmes’ attorneys in a legal file published in February that was unsealed.
A statement could help humanize Holmes, who sits upright in front of her with a notebook and sometimes whispers to her lawyers in the courtroom.
Occasionally she looks over at the jury on her left, and often looks back at her mother, Noel Holmes, and several friends who occasionally sit on the bench behind her. The face mask that Holmes must wear in court has hidden any public display of her feelings.
But testifying in their own defense could be a great risk.
“Most business lawyer defendants don’t take the stand,” said Danny Cevallos, a legal analyst with NBC News. “That’s because most have at least some credibility problems. A good lawyer knows that if your client takes a stand and loses credibility, the case is lost.”
Sometimes the best defense is simply a distraction.
“Elizabeth Holmes shouldn’t have a hard time using the government’s evidence to blame Sunny Balwani,” said Cevallos. “After all, the government is also persecuting Sunny.
Cevallos warned at the end of the day that the jury would like to hear Holmes’ side of the story.
“There is no louder silence than the silence of the accused in criminal proceedings,” said Cevallos. “Everyone on the jury wants to hear from Elizabeth. But because of that, the judge will instruct them not to view or blame the accused’s silence as ambition.”
Balwani’s attorney Jeffrey Coopersmith declined to comment. Holmes’ attorneys did not respond to CNBC’s request for comment.
Holmes and Balwani have pleaded not guilty in ten wire transfer fraud cases and two wire transfer fraud conspiracies. If convicted, they face up to 20 years imprisonment.
Cevallos points out the terabytes of documents, text messages, and emails in case the defense can try to use them as a source of evidence instead of giving Holmes testimony.
Kathrein agreed that Holmes would likely not take a stand in her own defense unless her lawyers consider it a last resort.
“It would be a disaster for them to testify,” said Kathrein. “She’s charming, but she’s kind of all over the SEC statement. She says she doesn’t remember, she makes confessions, and she never blames Sunny. So her whole defense of blaming Sunny would collapse.”
Kathrein referred to another statement made by lawyers for the Securities and Exchange Commission over three days in the summer of 2017.
In that statement, which was also videotaped and received by CNBC, Holmes answered questions ranging from what she told investors about the capabilities of blood testing technology to Theranos’ financial projections. However, she also said she didn’t know the answer when pushed for details of the information to the high profile investors.
“Have you checked any forecasts, financial forecasts that were sent to Rupert Murdoch?” SEC attorney Rahul Kolhatkar asked Holmes in the testimony. “I saw her,” said Holmes. “I guess you checked these projections before they were sent to Mr. Murdoch?” asked Kolhatkar. “I don’t remember, but I saw the documents,” replied Holmes.
Holmes has settled the SEC lawsuit and agreed to pay a fine of $ 500,000 and not serve as a director or officer of a public company for ten years. In the context of the settlement, Holmes neither admitted nor denied the allegations.
An important answer during the SEC submission came during questioning about the Theranos contract with Walgreens.
When asked if she was the decision maker at Theranos and if she was going to sign the contract, Holmes said to SEC attorneys: “I have. I signed many of the Walgreens agreements. I don’t know if I signed them all. And yes, I am the CEO. I am the ultimate decision maker for the company. “
Legal experts say an affidavit could return to Holmes if it testifies.
“The risk of calling a defendant is that if the jury thinks even a tiny part of what they say is dishonest, they are likely to think they are completely dishonest,” said Cevallos.
Regarding the Latin expression falsus in uno, falsus in omnibus, Cevallos said: “A liar in one thing is a liar in all things.”