Theranos Trial: United States vs. Elizabeth Holmes (Doing It Differently)

Before discussing Elizabeth Holmes' testimony and cross-examination, let's recap the prosecution's proficiency. During opening statements, we were told a mountain of evidence incriminated Holmes: that her brother, Christian Holmes, had turned against her, invoking Unabomber-style intrigue; that a forged Pfizer document constituted an evidential smoking gun; that Holmes made false assertions about Theranos' devices being used in the battlefield; and that Tyler Schultz, the grandson of a former Secretary of State, was ignored after he blew the whistle on shoddy lab practices. The government also listed Stanley Druckenmiller, one of the world's most credible investors, as a potential witness. After months to prove up its claims, the United States rested without testimony from a single aforementioned person. Though it proved Elizabeth Holmes inserted a Pfizer logo on a Theranos document, the forgery wasn't as dramatic as advertised because no one disproved Holmes' faith in the document's assay data. Regarding the government's military-related allegations, the defense admitted a document proving Theranos' devices could someday be used on a "MEDEVAC." 

Ultimately, Walgreens' executives--whom the government did not emphasize in its opening statement--provided the strongest evidence for fraud. Had the government not oversold its case and resisted a tit-for-tat exchange on extraneous points raised by the defense, it would have had a clear path to conviction on any wire transfers involving Walgreens. Unfortunately, by marketing its case so poorly, the government did exactly what Holmes is accused of: over-selling and under-delivering.

Against this backdrop of hypocrisy, Holmes took the stand. Earlier, I warned Holmes' claims of domestic violence would backfire unless she could produce evidence of a black eye, and I was right. If one truth can be staked upon, it is that Ramesh Balwani loved Elizabeth Holmes, and Theranos was his love's labor lost. Had Holmes not accused Balwani of verbal domestic violence and unwanted sex, she would have walked. Instead, she opened the door to her own infidelity and numerous texts laying bare the pitfalls of mismatched relationships. 

Ramesh "Sunny" Balwani to Elizabeth Holmes, Skype message on MacBookPro, 12/10/2011: "Women above 40, very rare to find anyone who is not a total disaster. World is a tuff place for women. There are so few men who can keep women vibrant, happy, full of life. Everyone ends up in relationships of compromise then ends up fearful and messed up."

From Shakespeare, we learn true love is a marriage of minds unconcerned with the corporeal: "Love's not Time's fool, though rosy lips and cheeks / Within his bending sickle's compass come." Here, Balwani used his money to project security and gain access to Holmes' youth, but then tried proving his love through professional rather than personal growth. A Spring/Winter romance can be viable, but only if partners bring mutually complementary skills and only if the younger one slowly sheds the protective parental label while making the other feel secure in a new role. 

Sunny Balwani, messaging Elizabeth Holmes, 5/9/2012: "you are the company. we need revenue + few senior level managers - experienced. even if they only work 11 hours X 5."

Holmes may have been professionally independent--to an extent, since she relied on Balwani to do much of the work--but not personally. 

Her demeanor is captivating the same way the owner of a small, agile puppy feels blessed to be near his pet, and Holmes' best trick was making men feel as if they each owned a part of her. Unfortunately, possessing charisma without a solid scientific background means a science company's CEO is more marketer than leader, and playing the role of visionary without ballast will hollow you out unless your technical teams are stellar. Holmes hired competent employees but siloed them to maintain a "trade secrets" charade, causing miscommunication, then failure. Yet, because of an astoundingly tragic revelation explaining Holmes' mindset and relationship with an older protector, a criminal conviction remains less likely than a hung jury or acquittal.

This week, Holmes testified when attending Stanford University, she was raped. While testifying, she cried, and a female clerk handed her a box of tissues. Two days later, I can still remember the sound of Holmes' stuffy nose on my amplified headset.

I was raped at Stanford and decided to leave. -- Elizabeth Holmes (11/29/2021) 

In mere seconds, Holmes replaced her carefully crafted image as Steve Jobs incarnate with an adulthood spent escaping college trauma. Post-rape, Holmes admitted losing interest in her studies, then dropped out to "build a life by building something." How did she pursue this new skin, a form she would feel comfortable in? By eliminating all weakness and stereotypical feminine/blond behavior. The problem? Holmes, at that time, was in fact a blond American stereotype, i.e., more personality than brains. Some excerpts from Elizabeth Holmes' handwritten notes: 

"Simplicity is divine, and divinity scares most people. The Gracious Lord has created laws of nature that cannot be violated and success in business is also [sic] result of such laws."

"4:00AM - rise & thank God. Most things are not logical.

4:00 - 4:15 - wash face, change." 

6:20 - 6:30 pray" 

In the note, Holmes--who had gained acceptance into one of the world's top universities--makes spelling mistakes typical of a small child: "bannanna," "taboleh," and "encanter." 

Sunny Balwani to Elizabeth Holmes, iMessage, 11/28/2014: Normandy lab is a f*cking disaster zone. Glad I came here. Will work on fixing this.

Holmes, responding: "Meant to be that your [sic] there apparently"

In a post-college note Balwani allegedly wrote, Holmes referred to a "success quadrant," concluding the best leaders spend most of their time on "important but non-urgent" matters. If that's not enough self-help mumbo jumbo for you, she believed--or at least was told--she should only do things to make the company succeed and not spend more than five minutes on anyone unable to serve Theranos. 

Elizabeth Holmes, advice from handwritten note allegedly written by Balwani: "I will learn what makes them tick and use that as bait to motivate them."

"Create a file for each person you deal with."

To anyone mature and safe, such Machiavellian advice appears mercenary until you put yourself in the shoes of a recently raped college student. Doesn't ruthless sound less risky than vulnerable?

Character is how you treat those who can do nothing for you. -- aphorism, source unknown 

Meanwhile, Balwani has affirmed he will plead the Fifth Amendment, so he is unavailable to counter claims of coerced sex. But did Holmes drop out of Stanford University only because she was raped, or also because she was unprepared and gained admission through a legacy-style loophole? Are her protestations of unwanted sex with Balwani exaggerated? Consider the defense's note, titled "Prayer," allegedly proving sexual trauma: 

"Don’t enjoy literally anything about it or who I am if I did it. Hurts so much. So so much. Can’t focus on anything except why? Why hurting myself? Can’t even move let alone do sit-ups or actually sit up. Lying swollen. Literally." [Exhibit 7517]

Horrific words, certainly, but in context, the note indicates feelings involving binge eating or an eating disorder, not sex with Balwani. After the "swollen" comment are the following sentences, which indicate bulimia: 

"Feel sick fat not good about myself want to force throw up... Stomach hurts... Want to force throw up... During day just thought eat all psychologically attracted to. Ate. Then felt... sick. Still sick. Will go get rid of all sweets from house. Pray to god... Please God... I am so sorry I had to hurt myself to remember."

Speaking of God, Holmes wrote, in texts and emails, a curious acronym to Balwani: HMFR. She testified it meant "thanks to God" in Arabic, but anyone who's visited a mosque even once knows that phrase would be al-Ḥamdu lillāh (ٱلْحَمْدُ لِلَّٰهِ‎).  Therefore, I'm guessing HMFR is a combination of Hamdu (Arabic: praise/thanks) plus fa'bod aka farbod (Urdu taken from Persian: protector of glory). If I'm right, then HMFR means "Praise the protector of glory," which would incorporate Balwani's unique Sindhi heritage. [Update: see endnotes for further clarification.]

"There is not a breath I take when I am not manifesting the best and brightest and Lords Glory for you." -- Sunny Balwani, texting Elizabeth Holmes, iMessage, 5/19/2016 

Keep in mind, I don't speak or read Arabic or Urdu, and I've not been lucky enough to date an educated Pakistani. Holmes managed to date an educated, suit-wearing Pakistani millionaire without learning one of Islam's most basic phrases. (The equivalent would be dating a Catholic and thinking IHS meant "Gloria Patri.") In another text, Holmes misuses ﻣﺎﺩﻳﺒﺎ, an honorific: "being your madiba means everything to me." (To be fair, it appears Balwani used the term first, but correctly capitalized it.) How does this person get into Stanford, and what are her chances of graduating? 

Thankfully, academic shortcomings don't portend failure as an adult or professional, and direct examination confirmed Holmes timely responded to claims of deficient lab practices by deferring to the lab director, who informed her whistleblower Tyler Schultz "was slow to understand." From Theranos' point of view, Schultz raised mismatched comparators, i.e., not "actual performance in a lab setting across laboratories." Nevertheless, Schultz was correct regarding Vitamin D testing, though I'm unclear whether the issue was human error, a specific assay, or device unavailability.

Email, Elizabeth Holmes to Tyler Schultz, April 2014, classifying Tyler's statements as "serious comments": "I am going to have the teams go through this line by line." [Exhibit 7434] 

Given Holmes' ability to claim reliance on others' opinions and her correct internal response to Tyler Schultz, Holmes miscalculated in attacking Balwani. Her credibility would have remained sufficiently intact for purposes of reasonable doubt had she not opened to door to numerous personal texts and emails. Having bulimia and/or body dysmorphic disorder and being raped as a Stanford undergraduate meant she didn't have to mention intimate details about Balwani or their relationship to garner sympathy. Even an idiot full of sound and fury doesn't need prompting or embellishment to understand the connection between rape and dating an older man. 

At the hour when we are / Trembling with tenderness / Lips that would kiss / Form prayers to broken stone. -- T.S. Eliot, "The Hollow Men" (1925)  

As a lawyer, I'm required to convict on at least one count related to Walgreens; however, normal people won't put a rape victim in jail unless she caused some sin greater than the one done to her. Though Holmes--a master at triggering the male protective instinct--was surrounded by aggressive supporters, the record is undisputed: she personally caused no physical injury, no deaths, and no systemic failures. The people who ought to be in jail work for politically-connected Boies Schiller Flexner LLP and Fusion GPS and will truthfully tell you they were doing their jobs and acting within the law. 

Elizabeth Holmes, cross-examination: "I think I mishandled the entire process of the Wall Street Journal reporting."

They say every good story has at least one likable character, but this tragedy has no one likable and only two participants deserving respect. Other than the brilliant Kevin Downey and the equanimous Judge Edward Davila, substance is absent from these proceedings, including from the United States' representatives. If Elizabeth Holmes is found guilty, America must admit its post-1945 ascension is temporary, its private sector incompetent, its lawyers perverse, its universities negligent, and its foundation more marketing than substance. In short, Holmes is America post-9/11: a hollowed-out, Islamically-ignorant trauma survivor with good intentions, no consistent principles, deft marketing, and audacious ambition. The government's lawyers may represent America, but Holmes personifies the country now, and that's why I know she'll avoid prison. After all, isn't there a brown man somewhere to blame? 

© Matthew Mehdi Rafat (December 2021) 

ISSN 2770-002X

Bonus: Ramesh Balwani to Elizabeth Holmes, iMessage, 7/15/2015: "World is a mean place. Everyone has only been nice to us because of greed."

Clarification: this article has been updated to clearly indicate one of the post-college notes was allegedly written by Balwani rather than Elizabeth Holmes. 

Update: Later, I realized HMFR refers to Arabic: هَٰذَا مِن فَضْلِ رَبِّي, hāzā min faḍli rabbī, "This is by the generosity of my Creator." However, it is possible HMFR also refers to "home resource and family management."