When Judge Edward Davila sentenced Theranos founder Elizabeth Holmes to more than 11 years in prison last week, he ordered that she surrender for imprisonment April 27. But legal experts say Holmes could remain free well past that date.
After Davila sentenced Holmes, 38, on four counts of felony fraud, one of her lawyers in the courtroom told him her legal team planned to file a “motion for bail pending appeal” that would allow her to stay out of custody while she appeals the jury’s verdict.
If Davila grants that request — or if he denies it but Holmes gets the appeals court to approve it — she could delay her imprisonment significantly.
“It could be a year from now, it could be 15 months from now,” said Bay Area criminal defense lawyer David Cohen.
Holmes was convicted in January on four counts of defrauding investors in her now-defunct Palo Alto blood-testing startup out of more than $144 million. She is pregnant and the mother of a 15-month-old son, born weeks before the start of her four-month trial.
Holmes has remained free for the duration of her four-year criminal case; therefore, it’s unlikely Davila or the 9th Circuit federal appeals court that will hear her appeal would decide she’s a flight risk or threat to the public, and deny her motion for bail pending appeal on either basis, legal experts said.
Whether Holmes succeeds in keeping free until the end of her appeal will come down to one question, said Redwood City criminal defense lawyer Dean Johnson: “How much meat is there to this appeal?”
Davila will be the first to examine that question, as Holmes’ motion for bail pending appeal will go before him, after she files her notice of appeal within the next week or so. Her lawyers will argue that Davila erred in one or more rulings during the case. For Davila to grant Holmes’ motion to remain free pending appeal, he would have to decide that different, reasonable judges might have decided differently than he did on the ruling or rulings in dispute, and that Holmes would likely succeed in her appeal if the appeals court agreed he had erred.
Johnson said he believes Holmes has a decent shot at getting Davila to keep her free until the end of her appeal.
“If someone like Holmes, who is not a danger to society, has arguments that she can make on appeal, and they’re reasonable arguments, judges lean toward letting them out,” Johnson said.
Decisions by Davila on issues such as a dismantled patient-test-results database, inconsistent arguments by prosecutors in the trials of Holmes and her co-accused Sunny Balwani, and the appearance at Holmes’ residence of a troubled key prosecution witness could conceivably have been decided differently by other judges, Johnson said. Davila, while agreeing with his own rulings, could nevertheless decide that other hypothetical judges may have decided differently, and that an appeals court might rule in her favor on those issues, Johnson said.
If Davila denies her motion, Holmes can ask the 9th Circuit to review his decision. A two-judge appeals panel would apply the same standard as Davila had, invoking hypothetical reasonable judges, and could allow her to stay out of prison until the appeals court rules on her appeal.
Holmes could also ask Davila to delay her surrender date, based for example on possible pregnancy complications or needs of her coming newborn, Cohen said.
And if Holmes fails to get Davila or the 9th Circuit to keep her free on bail, she could appeal to the U.S. Supreme Court, Cohen said. However, he added, “It would be unlikely for the Supreme Court to grant bail if the 9th Circuit said no.”
