Elizabeth Holmes has at least one more chance to stay out of jail after a judge on Friday sentenced the aspiring biotech entrepreneur to 11 years and three months behind bars for defrauding a group of investors in her collapsing blood-testing startup, Theranos.
Holmes’ freedom depends on the expected appeal of her case, which her attorney must file within two weeks. Once an appeal is filed, Holmes can ask to remain out of custody while her appeal is heard by the Ninth Court of Appeal.
Former SEC attorney general George Demos says there is “no doubt” that the fallen Silicon Valley star will file an appeal. Only after this request – together with the request to remain free during her penance – will it be clear whether she will begin to carry out the sentence handed down by Davila.
“So, it’s not yet clear whether or not she will go to jail on April 27,” Demos said.
However, avoiding confinement altogether is an uphill battle.
First, she’ll need to convince Judge Edward Davila – who decided her sentence and presided over her trial – as well as that of her defense attorney, Ramesh “Sunny” Balwani – that she deserves to remain out of custody while her appeal begins in the highest court.
Second, it must prevail in its appeal. Even an appeals court cannot overturn Davila’s sentence, unless it finds that he misjudged Holmes’ sentence under US sentencing guidelines.
On the first point, Baker Boots criminal defense attorney Kyle Clarke said it was difficult to predict how Davila would respond to Holmes’ request for continued freedom.
“If there is an appeal, sometimes they will turn people away [of prison] Pending an appeal, and sometimes they put them in jail, even though there is an appeal pending,” Clark said.
To make this decision, Judge Davila will be tasked with looking at many of the same factors that determined whether Holmes will be allowed to remain on bail after she has been charged and in her sentence, such as whether or not her crime involved violence, her lack of a criminal history, and whether she represents danger to the trip.
“The judge may be able to rule on her, but remove her while her appeal peters out,” Clark said. “Although the government’s position on this is also important.”
Clark said he expected prosecutors to confirm that the lengthy appeals process could delay Holmes by years from serving her sentence.
“That’s one of the things the government will say – go to jail while the appeal is being heard,” Clark said. “Sometimes it works, sometimes it doesn’t.”
Grounds for appeal
The reasons Holmes might raise to justify the appeal remain uncertain.
Appeals can be based on rulings on testimony and evidence, whether the judge’s rulings during the course of the actual trial were consistent, and whether Holmes was given or denied the opportunity to present any exculpatory evidence.
However, Clark and other attorneys who spoke with Yahoo Finance say Holmes’ chances with the appeals court to overturn jury verdicts or Davila’s verdict are slim given Davila’s close handling of the case, which helped maintain a fair trial.
“The judge looked at this case very carefully,” Jacob Frenkel, a white-collar criminal defense attorney, told Yahoo Finance in January, right after the jury returned its verdicts after seven days of deliberation. “It is unlikely that an appeal will change the sentence.”
Frenkel also indicated that Holmes, in taking her stand during her trial, may have contributed to her fate on appeal.
Elizabeth Holmes testified “the truth. It was a gambit.” “And in the end, the jury made its decision largely based on whether or not it believed Elizabeth Holmes. So I think an appeal would be a difficult sledge for the defence.”
After Holmes’ verdict was read in a crowded courtroom on Friday, Davila said he would also give Holmes another five months out of custody before April 27 when she is required to surrender to jail. Holmes, 38, is now pregnant with her second child.
“It’s significant,” Demos said, noting that Judge Davila has already registered a five-month time frame. “I think this is designed to give her the opportunity to give birth outside of prison, which is compassionate and humane. Hopefully, this will lead to reforms throughout our prison process.”
How long will Holmes serve?
If Holmes files an appeal and fails to convince Davila or the appeals court to reverse what was done, Demos says she will likely have no choice but to serve most of Davila’s sentence. Provisions in the federal sentencing guidelines include the possibility of early release based on good behavior.
“Whether it serves 11 or not, I doubt it will serve a big part of that,” he said.
Alexis Keenan is Legal Correspondent for Yahoo Finance. Follow Alexis on Twitter @employee.
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