Elizabeth Holmes closing arguments: Prosecutors will get first and final word

Closing arguments are scheduled to begin today in the trial of Elizabeth Holmes, who could go to prison for as long as 20 years if she's convicted of defrauding patients and investors in her blood-testing startup.

Prosecutors will get the first opportunity to make their final arguments. Then, the defense team will make their case for their client, who claims she never intentionally deceived anybody by suggesting her startup, Theranos, could perform hundreds of diagnostic tests with just a few drops of blood. After the defense rests, prosecutors will have a final opportunity to address the jury.

Cardozo Law School professor Jessica Roth says she expects the government during closing to reinforce that Holmes, as CEO, many times proclaimed herself responsible for everything that happened at the company and as someone who was aware of its shortcomings.

“The evidence produced at trial — both the documents and the testimony of witnesses — supported the claim that Holmes was aware of problems with the technology, and with the financial health of the company,” Roth tells Yahoo Finance. “That evidence will be used by the government to argue that Holmes had criminal intent when she made statements to investors and to paying patients.”

Holmes is defending 11 counts of fraud and conspiracy for allegedly misrepresenting the viability of Theranos’ blood-testing technology to investors and paying customers. She was indicted back in 2018 after Theranos imploded under regulatory scrutiny, along with Theranos COO and her onetime boyfriend, Sunny Balwani. He faces the same charges and is scheduled to stand trial next year.

Holmes knew Theranos’ technology was faulty but promoted it anyway: prosecutors

One example the government can revisit to show Holmes’ level of awareness is testimony from former Theranos lab director, Kingshuk Das. According to CNBC, Das testified that in 2015 he informed Holmes of a prostate-specific antigen test that was showing inaccuracies. Holmes, he said, chalked up the inaccuracies to quality control and assurance rather than its analyzer’s instrument failure.

Holmes, who testified in her own defense, stopped short of admitting she understood the extent of the technology’s pitfalls. While she conceded her ultimate responsibility for Theranos as CEO, Holmes said she believed the technology worked based on representations from company experts and that she mistakenly delegated key decisions to Balwani.

Moreover, Holmes testified that Balwani, who's approximately 20 years her senior, subjected her to psychological abuse, controlling what she ate and how much she slept. Holmes’ abuse claims could get blocked from closings and deliberations: The government said it would request that the judge strike Holmes’ testimony about Balwani's alleged abuse as well as testimony claiming she was sexually assaulted at Stanford, according to a report from The Wall Street Journal.

To counter Holmes’ claims that Balwani was to blame, prosecutors in closing may recount a string of text messages between Holmes and Balwani to argue she knew about Theranos’ problems. In 2015, for example, after Holmes became the subject of intense media attention, Balwani sent her a text warning of his concerns of the exposure at a time “without solid substance which is lacking right now.”

One of the riskiest areas for Holmes

The government will also likely revisit one of the more shocking moments from Holmes' own testimony — her admission that she added the logos of drug giants Pfizer and Schering-Plough to two Theranos reports. Investors who testified during the prosecution’s case said they thought the documents came from the pharmaceutical companies.

Similarly, investors who testified for the prosecution said they relied on direct statements from Holmes indicating that Theranos’ blood-testing analyzer had been deployed by the U.S. Department of Defense in the battlefield in Afghanistan and had been tapped for additional military use.

“That was an action that she took — that the government says she took to deceive,” white collar defense lawyer and former prosecutor Elisha Kobre told Yahoo Finance. “And that, I think, is one of the riskiest areas for her.”

Prosecutors may also revisit statements she made to the media, including boasting to Fortune that the company could conduct 70 different tests from a "finger stick" sample and that the company offered more than 200 common tests. The author of that cover story, Roger Parloff, who has contributed to Yahoo Finance, testified during the trial that Holmes had made multiple misrepresentations to him.

Michael Weinstein, a white collar criminal defense lawyer with Cole Schotz, says, all told, the prosecution delivered a compelling narrative. “She had made so many statements for so many years in so many different vehicles and platforms,” Weinstein said. “I think the case went in well for the government. I think they were able to articulate specifically Holmes’ representations, or misrepresentations and falsehoods, and her ability, and controlling the company.”

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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