Theranos Trial: United States vs. Elizabeth Holmes (She Speaks)

This week, Elizabeth Holmes continued testifying and outclassed the government yet again. Holmes admitted to concealing third party devices from investors, but only because their use was a trade secret. It wasn't malicious, she implied, because she disclosed their use to the FDA, which agreed to "trade secret" designation. All crimes require intent to be proven beyond a reasonable doubt, and Holmes may be the first defendant citing "trade secrets" to deflect intent in a wire fraud case.

Email, Ian Gibbons to Elizabeth Holmes, 2/22/10: "all are possible in the proposed [Theranos] system."

If you've seen the final season of Goliath (2016)--the most accurate legal drama in recent memory, with City on a Hill (2019) a close second--then you know the FDA isn't exactly unbiased: about "55%, or $3.2 billion, of FDA’s budget is provided by federal budget authorization. The remaining 45%, or $2.7 billion, is paid for by industry user fees." "Industry user fees" are a euphemism for corporations and pharmaceutical companies, meaning the FDA's independence is compromised by the very entities it regulates. There's clever, legally clever, and too clever for your own good, and the prosecution is, at best, more competent than clever. Though cross-examination isn't until next week, the government's lawyers aren't smart enough to inspire a jury of laypersons to unanimously convict. I understand the law, I understand venture capital, I understand entrepreneurship, and I understand ambition. Were I a juror, I'd convict, but only on one count, thus favoring a result that should have occurred pre-trial: a year or two in a comfortable federal prison with early release. Unbridled corporate ambition avoiding systemic failure, physical injury, or death generally deserves bankruptcy, not prison.

The prosecution needed to do better to discredit Holmes' story, i.e., "Blame Balwani." Juries convict villains, and placing an unauthorized Pfizer logo on a document isn't enough to earn villainy--at least not without explaining how society benefits from Holmes behind bars. In short, the government oversold, then under-delivered while the defense was straightforward with its shenanigans, knowing full well its audience's limitations. As a result of the government not calling relatable investors supporting venture capital's impact on communities, the "Svengali defense"--which I mocked earlier--now appears credible. Besides one email where Holmes appears to be approving a false product demonstration, the evidence shows Balwani, not Holmes, slave-driving employees. 

If Holmes is putting on an act, then she believes in the script so much, she's become the character she always wanted to be. Given the government's access, were Holmes a "Regina George" clone, she should have been easy to unmask; however, the government, not Holmes, has been the arrogant one. Despite seeing me regularly over two months, every government lawyer except Jeffrey Schenk has been rude or dismissive. John Carreyrou, the author who exposed Theranos' flaws, recently told me he had no predictions about the verdict, but wouldn't take a selfie with me outside. In contrast, Holmes approached me to say hello, and her husband ended up being one of the trial's nicest observers, holding doors open for everyone and being considerate of my hearing impairment by repeating statements made in my presence. If this be fake kindness, I'll take it. 

Speaking of fake, we should discuss Holmes' (in)famous deep voice. Using an amplified headset at maximum volume allows me to hear changes in Holmes' voice. Holmes' normal voice--which you can hear when she responds, "Okay" and "Yes"--is deeper than average. When speaking longer sentences, she affects her voice, a tactic used by almost all public speakers. Marilyn Monroe's breathy voice? Affected. That foreign actor speaking a perfect American accent? Dubbing. Audrey Hepburn's songs in My Fair Lady (1964)? Not her voice. Your favorite musician singing "live"? Maybe, maybe not. Susan Sarandon singing in Rocky Horror Picture Show (1975)? Probably Julie Covington. Want to hear the best version of Despacito? Check out Erika Ender, not the more popular Daddy Yankee.

I told you I understand the law, but I don't understand multimedia licensing agreements, regional release requirements, international subsidiaries, and the international accounting underpinning them. I just know when I access online content when traveling, I'm authorized to see some videos and not others based on my location, even with a VPN. If what we see and hear online is based on our location, there's ample room for remakes, fake voices, fake politicians, frontmen, frontwomen, and the trading conglomerates trying to capture our ears, eyeballs, and wallets. We live in digital worlds more fake than real, and Hollywood is currently its center. Complain about Holmes' voice all you want, but if the jury doesn't convict on at least one count, the joke's on you, your public teachers, your federal government, your mainstream journalists, and your inability to understand, then reform your legal system. Good night, and good luck. 

© Matthew Mehdi Rafat (2021), an immigrant  

SSN 2770-002X

Bonus: "Dying societies accumulate laws like dying men accumulate remedies." -- Nicolás Gómez Dávila