Theranos founder Elizabeth Holmes is denied a bid for new trial
wsj.com
wsj.com
As for the vaccine court created to handle payouts from harm, it has only paid out 29 times in the last decade. I might believe the vaccines are safe - but 29 payouts (<6% of all filed claims) in a decade seems way too low by any statistic. The proof of harm seems insurmountable.
https://www.cnbc.com/2020/12/16/covid-vaccine-side-effects-c...
Plus, it's just common sense. Even by the official statistic of Thrombosis happening in "4 cases per one million" according to the CDC (as one potential side effect), that would indicate we should have 896 cases at a minimum, let alone authorized payouts.
https://www.logicallyfallacious.com/logicalfallacies/Appeal-...
However, if only ~900 people in the whole country have a severe reaction to vaccines but they save millions of people annually by preventing deadly and debilitating diseases, then you’ve shot yourself in the foot! That statistic is strong evidence that vaccines are very safe and likely produce more good than harm!
In business terms it's a win, but not very much for the public.
It's a win for the public, because the public cost in medical bills, insurance claims, medicare, suffering, and death from vaccine hesitancy far outweighs the cost of highly infrequent payouts.
In this specific case, though, there isn't necessarily this kind of informed consent. People can be legally mandated to get vaccines, so it would make no sense to hold the company providing the vaccines liable. The entity creating the mandate, in this case the government itself, should be the one liable, and they are.
Your number doesn't mean a whole lot, either. The most dangerous vaccines are for things like malaria and anthrax that typically only military members get, and when they end up harmed, the VA pays them disability benefits. There are way more than 29 people getting VA disability because of events like this.
I can't speak to other, more deliberate, vaccines, but I suspect it exists there as simply protection the companies negotiated for.
Come back once I see anti-vaxxers levels of crusading against alcohol, and I might take you seriously.
Holmes and Balwani were charged with wire fraud, which specifically requires defrauding another of money through a deceptive scheme. Even proving that Theranos deliberately lied to patients about the accuracy of test results doesn't quite meet this bar, because the patients weren't the ones paying and therefore weren't the victims of fraud.
What is that value and in which court?
The point is the prosecutors went for what they could reasonably prosecute on, with evidence available.
That does not follow, at all.
The US Attorney's office cannot bring charges against violations of state law, and medicine is largely regulated by the individual states in the US. Additionally, the evidence in a particular case might make it easier to prove some charges than others. That's not a value judgement that one crime is "worse" than another. That's just reality.
The Feds prosecuted Al Capone for tax evasion -- not because anybody thinks tax crimes are more serious than murder, but a) that's what they had jurisdiction over and b) it is what they could prove in court.
It is very true as you say that it was easier to prosecute for wire fraud with evidence available so that's what they did. Maybe we should reevaluate what the system prioritizes making easy and what it makes hard. Don't you think?
I like the sentiment, but my impression is that an entrenched legal system like the U.S.'s is neigh impossible to rework shy of a major revolution.
But I'm certainly no student of history or law. Can someone who is weigh in?
The populace certainly appears to be preoccupied with other areas of focus than what is discussed here I'll grant you that. Otherwise I don't really get why things couldn't be different. Perhaps that's what you mean.
Bummer.
Another utterly bizarre one is merely the act of walking within 1000 feet of a school with a gun in hand is considered interstate commerce under the gun free school zone act. No matter if the act of was completely devoid of commercial nature.
"Maybe we should reevaluate what the system prioritizes making easy and what it makes hard. Don't you think? " Doesn't matter what I think at this juncture. The lawyers did what they could effectively do.
You can be 'right' at some normative level, you can be effective at a practical one. Rarely in life do you get both with any consistency.
If people feel that there should be stronger laws to protect patients, then they should look at the current law and suggest improvements.
But this is a criminal case
Deceiving patients implies the Theranos tech was being used in "production" and I don't think that was the case.
So suppose they screwed up 2% of their cases because they weren't licensed to do this (or did they forward to qwest?) You would still have to find victims to make a damaged claim.
The investor damages story seems more straightforward from a legal perspective, but IANAL.
I think there were a few cases of patients getting the wrong results, maybe they were correcting later, but all in all it was not a huge issue for patients given how it was running in practice.
This is not to excuse the practices in any way, but I do get why the focus in the trial was not on defrauding patients.
But I have to wonder how often Quest screws up there tests, like if you wanted to find people upset about a mistake Quest made, you could probably find some.
I also think it would be much harder to prove intent to hurt than intent to defraud investors, making it easier to prosecute for fraud.
But IANAL -- this is just my reasoning about this interesting question as someone who's run companies in the life sciences.
Also malpractice is a tort, not a crime. You can sue over it, but the state does not prosecute it. This came up in the case of Christopher "Dr. Death" Duntsch [0]. He ended up being prosecuted for "aggravated assault with a deadly weapon" but it was maybe the first(?) time that assault had been used for medical malpractice.
Upon reflection, I suppose it could be ordinary consumer fraud to promise one thing and provide another, but my understanding is they drew a cylinder of blood "for verifying the new technology" and then when the new thing didn't work (or wasn't even tried) they could send back the "reference" readings from ordinary instruments, therefore not actually defrauding (or harming) any patients.
For another prominent example: Al Capone's tax evasion.
The DOJ got interested after Theranos attempted to defraud the US military, not because of a few rich investors losing money on a venture bet.
Prosecutors went with what they could easily prove.
Legal outcomes are about what you can prove. It was very clear that Holmes said "Our product can do x, y, z" to investors, and it's also totally clear she knew this to be false at the time, and it was material.
The evidence that she, personally, was guilty of defrauding patients directly was always reaching in my opinion. I followed the trial closely, and were I on the jury I would have voted for the same outcome.
The thing I really don't like about the line of reasoning is that it's essentially emotional at its heart: investors are rich and knew they were taking a risk, while patients are the ones who need protection. That may very well be true, but you don't get to just make up outcomes because one group is more powerful than another. The prosecution just failed to prove beyond a reasonable doubt that she was guilty of defrauding patients.
Arguably, court procedures and standards of evidence are also made up and prioritize certain powerful groups over others.
Which isn't to say that we shouldn't have rules, I'm just not sure appealing to the rules invalidates a claim that the outcome was unjust.
Those rules and standards also don't "prioritize" people with finances: there is nothing in any rule or standard that says "give priority to people with more money". The exacting nature of the system does mean expertise is worth money, but that's not an explicit design goal of that system.
I mean, even the idea that a third party needs to come in and administer punishment when one group defrauds the other is an emotional statement. You could just as easily argue that they all should have vetted theranos’s statements and not taken their word on it
If one wants to argue it was unfair that she was guilty of a crime against investors but not patients, that's a fine and good discussion to have. I'm just pushing back against the comment I was replying to, "I'll always be shocked that she was guilty of deceiving investors and not patients." I think the evidence showed their was clear deceit against investors in a way there wasn't against patients.
https://news.ycombinator.com/item?id=33524399
People are speaking in broad strokes without bothering to look at the specifics of what was presented at the trial.
> Though they initially were divided, jurors soon agreed to acquit Ms. Holmes on the one count of conspiracy to commit wire fraud and three counts of wire fraud tied to patients, Ms. Stefanek said. She said the jury concluded that prosecutors didn’t present enough evidence to show that Ms. Holmes knowingly pitched a faulty product to induce patients to pay for tests.
I don’t know the word for it, but this fits a type of behavior I’ve observed where people will break a behavior into a series of actions and since each action on its own is not a problem, then the behavior represented by the set of actions is deemed not problematic. Her company sold a product alleging X performance when she knew that this was false. Her product was then sold to people looking for a product that had X performance specifically because it was so beyond what any competitors had come up with. It was not a commodity good that they just happened to have purchased from this one vendor and didn’t care about the fraudulent performance claims.
There is no way I could not see this as fraud. I don’t disagree with the facts you’ve presented, I’m making a value judgement
In a general sense, this is why there will always be the concept of a loophole, and there will always be those that take advantage of it. Going through every trick to reduce tax liability from millions to 0 seems like behavior that is defrauding the government, but no actions are actually provably defrauding the government.
"It was totally clear she knew her products could not do x, y and z. She facilitated and approved and enabled sales of these products that could not do x, y and z, to providers who were going to use them to perform x, y and z tests on patients, tests that they could not do."
How do you see that she didn't defraud patients?
> Though they initially were divided, jurors soon agreed to acquit Ms. Holmes on the one count of conspiracy to commit wire fraud and three counts of wire fraud tied to patients, Ms. Stefanek said. She said the jury concluded that prosecutors didn’t present enough evidence to show that Ms. Holmes knowingly pitched a faulty product to induce patients to pay for tests.
> The jury was in agreement, Ms. Stefanek said, that the Theranos lab was run shoddily and not in the way to be expected from a company setting out to achieve the highest quality in medical care. But jurors thought the burden of proof on defrauding patients was higher.
> “If all we’d had to prove was that she knew there might be problems in the lab and that might end up harming patients, that would be one thing,” Ms. Stefanek said.
https://www.wsj.com/articles/jury-in-elizabeth-holmes-trial-...
To me it's direct correlation.
"If she knew there might be problems in the lab" - the only problem in the lab was the machines themselves! The blood work is known science - the issue was getting to a point where accurate blood work could be done. Which involved the machines, the machines that they separately demonstrated she knew did not and could not do 'x, y and z'. And to be clear, in your example, x, y and z are "extract sufficient blood for an accurate test", "extract blood in a way that allows for an accurate test (i.e. absent over-dilution, contamination)".
To also be clear, this can be entirely a failing of the prosecution too - but it seems there's this sense of "there's this missing -glue- that we couldn't prove", but the lab IS the machine, and if she knows the machine can't do x, y, z, then it follows that the lab can't do x, y and z. There are only two outcomes from the machine, and lab, an accurate result, or an inaccurate result (or inability to provide any result). And then if you say "My machine cannot do x, y and z", then it cannot provide accurate results (at least not by design, stopped clocks and all that). Then you get to a conclusion that her argument would be that "an inaccurate result doesn't inherently harm a patient", and convoluted logical leaps of "because the result would lead to further testing and interventions", but there was presented at trial concrete evidence that unnecessary, and harmful, interventions were ordered/performed, on the basis of the lab results from those machines.
Prediction: 18 months. On hold until all the appeals are exhausted.
Because the legal system would grind to a halt if everyone got their day in court, but chugs along just fine if only a small privileged group is given full protection under the law.
It's the same reason why Snowden is hiding in Russia, while another prominent individual who stole classified documents hasn't even been arrested.
Close watchers of the case assume timing of an indictment to be predicated on minimizing risk of civil disorder. Therefore after mid-term elections, and as early as practical before 2024 campaigning ramps up:
https://www.emptywheel.net/2022/11/08/head-of-republican-par...
https://www.jdsupra.com/legalnews/substantial-sentence-likel...
Also, our charities, since if she gets 5 years, we both donate. You sure about this?
There's still a question about suspended sentences and community service - do those count? I say No.
It's the "community service" I worry about. "Boo hoo, she's a mother of young children, how horrible to lock her up."
For your $10: the money's really intended for Lighthouse Ministry (lfrad.org), but in case they don't have their formal IRS 501(c)(3) status yet, you can give to Martha's Kitchen
https://www.marthas-kitchen.org/
and mark the donation as "for Lighthouse". They are a "financial sponsor" for Lighthouse, which is a term that has some kind of legal significance I don't understand, but I know the money will get there.
For women needing role models, she set them back greatly.
1. Do a couple years in white collar prison.
2. Upon release immediately pivot to crypto / web3.
3. Profit!
#buildInPublic kids
https://www.youtube.com/watch?v=d-7o9xYp7eE
know: don't talk to police, period.
Anyhow, it belies the notion that privileged white people don't go to prison. I actually know someone who did, and it wasn't for some catchall gotcha charge.
I'm willing to put money on the line right now saying that Lizzie will go to prison.
[EDIT] If you disagree, I'd suggest you read a bit that Ken White has written about federal prosecutions. Basically if they really want you, they'll trip you up in interviews and charge you with lying to the FBI.
Related, from another article:
> a federal jury found Stewart, who maintained her innocence, guilty of conspiracy, obstruction and two counts of lying to federal investigators (a securities fraud charge was dismissed)
The original charge didn't stick, but they convicted on statements made to the FBI during the investigation.
This is just another reason to take the wargames advice when it comes to talking to the police:
> The only winning move is not to play.
Use your right to remain silent.
And for those who haven't seen it: https://www.youtube.com/watch?v=d-7o9xYp7eE
But as a juror I'd have a very hard time sending a mother of two very young children to prison for the rest of her life, for a crime that did not (albeit by luck) result in any physical harm. It no longer just impacts only her.
I'm not trying to justify this position in in any legal sense. It is what it is.
But she's 38, and she may have decided that even an 8-10 year sentence would make it impossible for her to have children later, so did it now while she's free.
That's her decision to make, no one can stop her or anything, though that also means only very rarely seeing your child for the first 8-10 years of their life.
If Holmes actually wanted kids IMO it does seem like the stars align for her to do it now while the sociopathic upsides are at their maximum. There's a decent chance the baby will be shrieking in someone's face while she peacefully sleeps in minimum security bunk. She likely won't experience the tantrums, the worst of the sleepless nights, changing diapers, potty training, the worst years of illness and communicable disease, and when she emerges her children will be semi-rational beings capable of logic and physically durable and possibly even independent enough to be left alone briefly while she goes on a trip to the store or a run.
So I really don't blame her for trying to give herself that chance.
She must think she's going to get a short sentence.
As it stands, the kids will be relatively fine, the father's family is apparently wealthy. Dragging them into a life on the run in 3rd world shitholes would be doing those kids a great disservice.
LOL, she's looking at what, an 18 month sentence? Of which she'll serve maybe half?
* She faces maximum charges of many decades in prison. It's unlikely, but you can't count on a short sentence. 10 years is not at all impossible.
Buying it on a prediction market would be the most straightforward way to do this:
but I don't think they have a contract for "likely prison term for Elizabeth Holmes." Maybe in the UK you can buy that?
We also don’t want to encourage people with criminal energy to have more children in order to increase their chances of more favorable sentences.
It's interesting to me that "physical harm" is your line, though. Why? Any physical harm, or only some level of severe physical harm?
"Physical harm" vs "wasting investor money" just feels categorically different in a meaningful way to me.