Elizabeth Holmes’ lawyers will take a major risk if they call her to the stand. It is their burden or triumph depending on the jurors in the courtroom.
As trial attorney Andrew George told reporter Alexis Keenan for Yahoo Finance (November 10, 2021):
“The biggest risk that you can take at trial as a defense lawyer is to call your client to the stand. The safe thing to do as the lawyer is not to, but that can also be a very safe way to lose.”
Been Doing This A While
As an ethics speaker and consultant, I have tracked hundreds – if not thousands – of fraud cases for nearly 25 years. The outcome of the Elizabeth Holmes/Ramesh Balwani Theranos debacle, could be any number of end-points.
Continued George:
“In Holmes’ case, and every case, lawyers need to carefully calculate the significant risk against the reality that jurors ‘undoubtably’ want to hear the defendant testify. Jurors will put themselves in the defendant’s shoes…definitely inside the courtroom.”
It has been pointed out by many legal and business observers that Elizabeth Holmes may have to do the sell job of her life if she takes the stand.
Trial attorney Brian Klein (as told to Alexis Keenan) stated:
“She’s very good at persuading people. She persuaded people to give her hundreds of millions of dollars. So, she clearly has a great presence and probably has charisma. People believe her and think she’s credible.”
As the case has unfolded, the government has constructed a high and thick wall that will not be easy for the defense to knock down.
Theranos raised more than $700 million in private investment from a collection of naïve, quite wealthy sources. In order to convince those sources that the company was on the level, there were many blatant lies, forgeries and “bait and switch” tactics that Holmes and Balwani employed. At its height, the company was valued in excess of $9 billion. It is now, virtually worthless.
Flim-Flam or Boo-Hoo?
The decision to put Elizabeth Holmes on the stand is fraught with peril or opportunity. Her defence is probably going to stick to two narratives: an entrepreneurial venture that failed like so many others and psychological bullying and abuse by Balwani.
She will have to convince the jury that like so many other Silicon Valley debacles, Theranos was simply unsuccessful with its technology. That’s it. They tried, they failed, and everyone who parted with their wealth knew it was a high-risk venture.
If the defence takes that road they will have to explain away mis-representation, forgery of endorsements, substituting conventional machinery for Theranos MiniLabs behind the curtains, and lying to investors about the promise.
Then there is the portraiture of Balwani as the abusive manipulator; the Svengali-like abuser who had Holmes under his sinister clutches.
Both areas of the defense can certainly work. Businesses do fail and sexual/psychological abuse has happened since Samson was convinced to cut his hair. However, there are huge risks that could cause Holmes up to 20 years in prison.
Clearly, Ramesh “Sunny” Balwani, the Theranos CEO and Holmes’ lover of many years, also has a defense team and he vehemently denies any hint of abuse.
More importantly, the government case has many established aspects that are troubling for any defense to overcome. Theranos created a web of lies that suckered many people.
It will come down to Holmes to plead a case directly, face to face, or through attorneys. She is persuasive; a silver-tongued orator, attractive in public settings and will elicit sympathy as a wronged woman – and the single mother of a baby.
I have stayed away from the sympathetic aspects of Holmes’ persona. However, in the end, I’ve no doubt she will use every weapon at her disposal.
She could go free or get locked away. No matter what happens, this is not a case of Elizabeth Holmes and Ramesh Balwani on trial, but ethics. In question is whether ethical behavior can be ignored. The trial has proven, no matter what, that ethics will, sooner or later, exact a price.
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