Here’s how Elizabeth Holmes might be trying to avoid prison for as long as possible

Elizabeth Holmes has at least one more opportunity 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 failed blood testing startup. Theranos.

Holmes’ freedom depends on an expected appeal of his case, which his lawyers must file within two weeks. Once an appeal is filed, Holmes can ask to stay out of custody while his appeal is heard by the 9th Circuit Court of appeals.

George Demos, former US Securities and Exchange Commission attorney, says there’s “no doubt” the lapsed Silicon Valley superstar will appeal. Only after that request—along with her request to remain free during her penance—will it be clear whether she will begin serving the sentence issued by Davila.

“So whether or not he will show up for jail on April 27 remains to be seen,” Demos said.

However, avoiding incarceration altogether is an uphill battle.

First, he would have to convince Judge Edward Davila – who decided on his conviction and presided over his trial – as well as the trial of his co-defendant Ramesh “Sunny” Balwani – that he deserves to stay out of custody while his appeal unfolds. in the upper court.

Secondly, he should have prevailed in his appeal. Even the appellate court cannot overturn Davila’s sentence, unless it finds that he miscalculated Holmes’ punishment under the US Sentencing Guidelines.

Elizabeth Holmes (C), founder and former CEO of blood testing and life sciences company Theranos, walks with her mother Noel Holmes and partner Billy Evans in federal court for her sentencing hearing November 18, 2022 in San Jose, in California. (Photo by AMY OSBORNE/AFP via Getty Images)

On the first point, Kyle Clark, criminal attorney for Baker Botts, said it was difficult to predict how Davila would respond to a request from Holmes to continue the freedom.

“If there’s an appeal, they sometimes keep people out [of prison] pending appeals, and sometimes they put them in jail, even if there’s an appeal going on,” Clark said.

In making this decision, Judge Davila would be tasked with considering many of the same factors that determined whether to allow Holmes to remain on bail following his arraignment and conviction, such as whether or not his crime was violent, his lack criminal record, and if you are at risk of absconding.

“The judge may be willing to convict her, but hold her off as her appeal falls apart,” Clark said. “Although the government’s position on this is important.”

Clark said he expects prosecutors to point out that the lengthy appeals process could delay Holmes from serving his sentence by years.

“That’s one of the things the government will say is that he should go to jail while the appeal is pending,” Clark said. “Sometimes it works, sometimes it doesn’t.”

Grounds for appeal

The grounds that Holmes can raise to justify an appeal remain uncertain.

Appeals may be based on rulings on testimony and evidence, if the judge’s decisions during the actual trial are consistent, and if Holmes has been given or denied the opportunity to provide exculpatory evidence.

However, Clark and other attorneys who spoke to Yahoo Finance say Holmes’ chances for the appellate court to overturn the jury verdicts or Davila’s sentence are slim given Davila’s close handling of the case, which has helped preserve a fair trial.

“The judge has reviewed this case very carefully,” Jacob Frenkel, a white-collar criminal defense attorney, told Yahoo Finance in January, soon after the jury returned its verdicts after seven days of deliberations. “An appeal is unlikely to result in the sentence being changed.”

Frenkel also pointed out that Holmes, by taking sides during his trial, may have helped seal his fate on appeal.

“The thing is, Elizabeth Holmes testified. It was a move,” she said. “And ultimately, the jury made its decision largely based on whether or not they believed Elizabeth Holmes. So I think the appeal will be tough on the defense.

FILE PHOTO: Elizabeth Holmes, CEO of Theranos, participates in a panel discussion during the Clinton Global Initiative annual meeting in New York, U.S., September 29, 2015. REUTERS/Brendan McDermid/File Photo

FILE PHOTO: Elizabeth Holmes, CEO of Theranos, participates in a panel discussion during the Clinton Global Initiative annual meeting in New York, U.S., September 29, 2015. REUTERS/Brendan McDermid/File Photo

After reading Holmes’ sentence to a packed courtroom on Friday, Davila said he would give Holmes another five months in custody before April 27, when she must surrender the incarceration. Holmes, 38, is now pregnant with her second child.

“It’s significant,” Demos said, noting that Judge Davila did indeed take note of the five-month period. “I think it’s designed to give her the opportunity to give birth outside of prison, which is a compassionate and humane thing to do. And hopefully that leads to reforms throughout our prison process.”

How long will Holmes serve?

If Holmes files an appeal and can’t get Davila or the appellate court to reverse what was done, Demos says he likely will have no choice but to serve most of the sentence Davila handed out. Provisions within federal sentencing guidelines include the possibility of early release based on good behavior.

“Whether or not he will serve 11 years remains to be seen, but I suspect he would serve a substantial portion of it,” he said.

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

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