[quote=“gdave, post:220, topic:946138, full:true”]
“I hereby sentence you to an especially stinky Mark Rober glitter bomb, and a stern admonition to never do it again.”
The reporting I heard on NPR this morning said the jury felt the prosecution had cherry picked a few cases where patients got incorrect results, and other patients got good results, which was enough to create reasonable doubt for them.
If that’s actually what happened…I’m kind of at a loss for words. Either the prosecution did a terrible job of explaining how lab testing is supposed to work, or the jury members were really dense.
Inadequate samples are going to result in unreliable results. Sometimes they’ll be reasonably accurate and sometimes they’ll be off and sometimes they’ll be dramatically off. Sometime you’ll know you got bad results because the machine will tell you the sample was inadequate, sometimes you won’t know without re-testing. And, of course, most results are going to be within normal ranges, so if you just report normal ranges, you’ve got pretty good odds of being right just by chance.
Theranos phlebotomists knew that they were collecting inadequate samples. Theranos lab techs knew that a lot of the results they were getting were garbage and that the samples were inadequate for the tests they were trying to run. But the company had a culture of just going with the program, and they were still reporting what they knew were garbage results as high-confidence results. Cancer patients were getting some of those results. Literal life and death decisions were being made based on results that were at best unreliable and at worst totally wrong. The fact that they didn’t have a confirmed 100% failure rate doesn’t mean that serious, potentially fatal fraud didn’t occur.
I was assuming there just wasn’t a firm enough link between Elizabeth Holmes and the garbage testing and resulting to convict her. But if the issue really was that some of the results were accurate and the jury honestly thought that meant that fraud wasn’t occurring…I just don’t know what to do with that.
This is where destroying the test results database really paid off for Theranos. Without that database, it was difficult for prosecutors to prove that the results were unreliable overall.
I think at some point in time she crossed the line from Enthusiastic Idea-Champion to Fraud-Artist. I’m not sure how clear the line was or if she even saw it, or at what point she reached the point-of-no-return. But, regardless of all that, she did reach the status of Fraud-Artist. And I doubt that was her original intent. I think she wanted to be great and she ended up being infamous.
Yes at some points in the vision continuum’s downward slope connecting ’wanting to change the world’ and ‘OMG this Just Doesn’t Work’, some parts of her had to have told (or hinted to) herself to stop continually doubling down.
But she kept selling her company. She started to lie — small ones at first, then bigger and bigger ones, and she just couldn’t stop herself.
Hubris. Resulting in fraud.
I don’t know what the judge is allowed to consider, but it doesn’t seem like it would be such a stretch for the not-quite-legally-fraud-but-close against the patients to be considered just as a factual matter that her fraud against investors had the at the very least predictable, if not outright intended, downstream effect that patients would get bad results and might suffer as a result. There’s an element of wantonness in that, you know? Like, there is no specific crime (other than plain old ordinary murder) against murdering a couple of grandparents in front of their grandchildren, but I should think doing so would merit some consideration at sentencing, adding to the heinousness of the underlying crime.
So while as a matter of law she might not have committed fraud against patients, the prosecution may still have established, as a matter of fact, that patients were harmed or put at risk within the overall scheme to defraud certain investors.
She can still be sentenced to 20 years for each of the counts she was convicted of. Not that she will get 80 years, but it’s possible. Also, how can the jury call it cherry-picking when of course only those who got incorrect results have a case to sue.
This.
I feel much worse for patients who were misled about their health and may have made bad choices as a result than i am about investors who lost money. Hell, of they had succeeded in “fake it 'til you make it”, the investors would have been okay. But the patients would still have been screwed.
The three counts that came back as no verdict…that means that there was a hung jury, right? Does anyone know if that’s going to result in a new trial, or will the charges be dropped?
It’s a mistrial for those charges. I doubt that they have decided yet and may wait until after sentencing to make that decision.
I have no idea what evidence was presented, but if in a less egregious case the prosecution found the 3 people out of a million who got incorrect results and called that fraud, that would be cherry-picking.
Of course, AIUI there was no way anyone got correct results from these tests other than blind chance, so cherry-picking doesn’t apply. Leading me to think the prosecution didn’t do a good job explaining why/how those patients were part of the suit.
One of the jurors was interviewed and he said that she never directly interfaced with patients so was always at least one step removed. Anyone who disagrees with their decision without seeing the actual jury instructions is out of line.
Right, and airline safety is perfectly acceptable if at least half the planes get to their destinations without crashing.
That sounds even dumber. She’s off the hook if she wasn’t the one drawing blood into the nanotube?
It’s situations like this that make me think I’d do almost anything to avoid jury duty, at least in a case complex enough to require minimal critical thinking capacity. I’d wind up incarcerated for assaulting other jurors out of frustration.
Agree. All it would have taken to avoid all this trouble is one moment of clarity, as the leader of the company, to pause and tell investors the product is not ready for prime-time. The company could have just failed normally and her legal issues would likely be much less. But instead, drunk with money and attention, she told people everything was great and pressed ahead with the lies.
How was the jury instructed to interpret that charge?
Actually, the juror’s explanation is exactly what I was anticipating when I heard the breakdown of the charges and the results.
Criminal law is based on individual responsibilty, and fraud charges turn heavily on exactly what representations were made at the time of the transaction. What was said to the three individuals who were alleged to have been defrauded? Who said it to them? What representations were made about the machine? Did the person making those representations do so on the instructions of Holmes herself? How many layers of administration were between Holmes and the three individuals? Can it be proven, beyond a reasonable doubt, that the representations that were made to the individuals came from Holmes?
Lots of room there for reasonable doubt, based on the distance between Holmes and the three individuals.
That’s different from the representations which Holmes made to investors - much more easily shown that Holmes was personally involved in those representations, and hence personally committed fraud.
And as for the comment about “minimal critical thinking capacity” - that is simply not fair. The jurors in this case were given a very complex trial, with complex facts, and then instructed on a very difficult area of the law, criminal fraud. They had to be satsified, beyond a reasonable doubt, that Holmes personally defrauded those three individuals. The fact that they did not think there was a clear enough connection, on the facts of each of those three counts, is not an unreasonable conclusion to reach - especially on the criminal law standard of proof beyond a reasonable doubt.
The question the jury was considering was not “Did Elizabeth Holmes do right by the patients being tested?” It was “Did the state meet its burden in proving all the elements of each specific charge beyond a reasonable doubt.”
I’ll echo this, and add that we don’t know exactly what evidence the jury was presented with–unless someone here sat through the whole trial. It’s not the jury’s fault if the prosecution didn’t make out each element of every charge. And depending on what evidence was actually available, it may not even be the prosecution’s fault.
Plus, I am sure there is nothing simple about evaluating a complex (multiple) fraud case like this.
And I just noticed that one of the acquittals was on a conspiracy to commit fraud. Conspiracy is also a very difficult charge to prove (think of the Bundy occupation, for example). When you put two difficult charges together, conspiracy to commit fraud, the prosecution has a very heavy onus.