Attorneys for Elizabeth Holmes, the former Theranos CEO convicted of defrauding investors earlier this year, have asked a federal judge for a new trial after a prosecution witness showed up at Holmes' home, according to court documents filed in U.S. District Court in San Jose.
The petition to the court for the Northern District of California, which was filed on Tuesday by Holmes' attorneys, is the latest twist in a storied case that found Holmes and former Theranos Chief Operating Officer Ramesh "Sunny" Balwani guilty of multiple felonies in a fraud that purported to accurately test blood from a drop taken from patients.
In separate trials, a jury found Holmes guilty of four counts for defrauding investors of nearly $145 million through Theranos, a failed Palo Alto blood-testing startup, on Jan. 3. Balwani was convicted of 12 counts of wire fraud and conspiracy to commit wire fraud on July 7. He is scheduled to be sentenced Nov. 15; Holmes is scheduled for sentencing on Oct. 17.
Holmes' attorneys are now asking for an Oct. 3 hearing regarding newly discovered evidence related to Dr. Adam Rosendorff, a key prosecution witness at Holmes' trial, or alternatively, for an evidentiary hearing.
Rosendorff allegedly left a voicemail message for one of Holmes' attorneys, Lance Wade, on Aug. 8 asking to meet with Holmes, according to the court filing. Wade didn't
respond to Rosendorff due to ethical restrictions on communicating with represented parties, according to the petition.
About an hour and 15 minutes later, after not hearing back from the attorney, Rosendorff allegedly appeared at Holmes' residence. Her partner, William Evans, answered the door. Rosendorff was reportedly trembling and had his cellphone open when he sought to speak to Holmes, but Evans told him he had to leave. Rosendorff attempted to leave but drove his car in the wrong direction.
When Evans stopped him to give him directions, Rosendorff indicated he had misgivings regarding his testimony, according to the court filing. He allegedly stated during two short conversations that he tried to answer the questions honestly at Holmes' trial. He wanted to talk to Holmes and he thought a conversation with her would be "healing" for both of them. They were young at the time of the events; these concerns were weighing on him to the point where he had difficulty sleeping, according to the petition for the hearing.
Rosendorff was Theranos' laboratory director from April 2013 to November 2014. He was responsible for validating blood tests before they could be used on patients and negating tests if the results seemed inaccurate, ensuring the lab was complying with federal regulations and communicating with doctors who had questions or concerns about the test results.
During the trial, he testified as an expert witness for the prosecution in late September and early October of 2021. He testified that he https://www.paloaltoonline.com/news/2021/09/28/threanos-lab-director-testifies-that-he-refused-to-spin-wonky-test-results felt pressured by management to defend laboratory tests that were inaccurate. The pushback caused him to leave Theranos, he said.
Holmes' attorneys sought to demolish his credibility, and throughout the trial raised questions that prosecutors were only showing Rosendorff and the jury selected documents. Defense attorneys caught him in a number of contradictory statements made during testimony at other hearings.
Federal trial Judge Edward Davila allowed the defense attorneys to question Rosendorff about PerkinElmer, his employer at the time of the Holmes trial, which was found in violation of Centers for Medicare & Medicaid Services regulations by the same inspectors who audited Theranos, according to news reports from the trial.
Davila said at the time that Rosendorff might have "a personal interest or bias" to avoid career consequences or liability, which could have "focused or shaped" his testimony in the Holmes case.
Holmes' attorneys are now returning to these problematic portrayals of Rosendorff's testimony in their request for a new trial, which they allege amounts to prosecutorial misconduct or bias. The government chose to "cherry pick" evidence they presented and misled the jury; if all of the evidence were presented, it would have resulted in an acquittal for Holmes, they claimed.
The U.S. Attorney's Office could not immediately be reached for comment.