Elizabeth Holmes' chance for a new trial is slim despite hearing, expert says

The prospect of Elizabeth Holmes getting a new trial is not looking good despite a judge agreeing to hear her out, according to one legal expert.

The Theranos founder is due back in court Monday after U.S. District Judge Edward Davila – who oversaw the trial that ended with Holmes' conviction on four fraud charges in January – agreed to allow Holmes' defense team a hearing for their argument that a fresh trial is warranted due to "newly discovered evidence" pertaining to Dr. Adam Rosendorff, a former Theranos lab director and key government witness.

Attorneys for Holmes, 38, claimed in a filing last month that Rosendorff called Holmes and one of her attorneys weeks ago seeking a meeting before driving to the disgraced founder's home and having a conversation with her partner, William Evans.

Holmes' defense team claims Rosendorff expressed regret to Evans over his testimony and allegedly said that "the government made things sound worse than they were."

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However, former federal prosecutor Bianca Forde says Holmes' arguments are weak, making the chance of a new trial quite slim.

"That trial lasted a whole month, with 30 witnesses and the best she could come up with is one of the witnesses has regrets?" Forde told FOX Business, saying Holmes' claims do not warrant "the drastic remedy of a new trial."

Forde argues that Holmes' assertion that Rosendorff had regrets does not meet the standard of "newly discovered evidence." Further, Rosendorff himself issued a written statement to the court this week reiterating he stood by his testimony both in Holmes' trial and in the trial of former Theranos executive Ramesh "Sunny" Balwani, who was a co-conspirator and former boyfriend of Holmes.

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Holmes and Balwani were both indicted in 2018 over allegations that they deceived investors and patients by making false claims that Theranos' technology could diagnose an array of diseases with just a few drops of blood from a patient rather than the traditional vials of blood drawn from a patient's vein. Now, they both face up to 20 years in prison.

Judge Davila also oversaw the trial of Balwani, who was convicted in June on all 12 criminal fraud charges brought against him. Balwani requested a new trial of his own citing Rosendorff's purported remorse, but Davila shut down that request Thursday saying that witness's statements "related exclusively to his testimony during Ms. Holmes' trial, not Mr. Balwani's trial."

According to The Wall Street Journal, Davila also appears skeptical of Holmes' arguments for a new trial. The outlet reported that the judge asked Holmes' attorneys during a status meeting last week, "Is this a fishing expedition?" 

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Nonetheless, Davila granted Holmes' request for a "limited" hearing given the possibility, however slight, that prosecutorial misconduct tainted Rosendorff's testimony. This makes sense, says Forde, "given the judge's interest in making sure the verdict is iron-clad on appeal."

Regardless of whether the judge grants Holmes a new trial, Forde says the Theranos saga is far from over.

"She doesn't want to go to jail," Forde said of Holmes. "She's facing a lot of time, she's going to utilize every single procedural method that she can to avoid her sentence."

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The former prosecutor says if Holmes is granted a new trial, she risks exposure on all counts on which the jury failed to reach a verdict in addition to reconviction on the counts underlying her future sentence.

However, if Holmes is denied a new trial, Forde told FOX Business, "she'll get sentenced, and then she'll file an appeal, and she'll file appeals until she has exhausted her appellate rights because she probably has the means through which to do so."