As we know, Elizabeth Holmes, the former founder and C.E.O. of the Silicon Valley blood-testing start-up Theranos, is on trial accused of multiple instances of fraud against patients, investors and doctors. Essentially the government alleges she committed fraud by promising that her technology could test for dozens of health conditions using just a few drops of blood from a finger prick. The technology did not work as promised.

Specifically, the government seeks to convict Holmes on two counts of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and ten counts of wire fraud, in violation of 18 U.S.C. § 1343. If convicted, Holmes faces 20 years in prison on each count.

Her lawyers describe her as guilty of little more than running a failed business, not fraud. The government, however, has a different narrative. During the prosecution’s opening statements, the prosecution repeatedly called Elizabeth Holmes “a liar and a cheat.”

Assistant US Attorney, Robert Leach told the jury that in 2009, when Theranos ran out of money, Holmes knowingly set out to mislead investors to keep the company going.

“Out of time, out of money, Elizabeth Holmes decided to lie,” Leach said. “After years of making promises it couldn’t keep,” Theranos and Holmes “turned to fraud to keep money coming in the door.”

Holmes was a prolific fundraiser, ultimately bringing in over $700 million in investor capital for Theranos.

The government stressed Holmes’ hands-on role as C.E.O., arguing that she knew they were lying. Leach pointed out that Holmes was the face of Theranos and oversaw everything about the company. All throughout, Holmes had no problem lying to investors like Walgreens and Safeway with her false claims.

“She owned it, she controlled it, the buck stopped with her,” Leach told the jury. “And as you’ll hear from insiders, she was not an absentee C.E.O. She was there all the time. She sweated the details. She was in charge.”

“The defendant’s fraudulent scheme made her a billionaire,” Leach said. “At one point, her stock in Theranos was worth billions. The scheme brought her fame, honor, and adoration.”

Given the accusations, massive settlement with the Securities and Exchange Commission and the fact that most defendants lose at trial, our team decided to explore what Elizabeth Holmes’s First Day in Federal Prison would look like.

Never forget, the prosecution bears the burden of proof because, based on the protections of the U.S. Constitution, a criminal defendant is presumed innocent.

What does it mean to prove guilt “beyond a reasonable doubt?” 

Proof beyond a reasonable doubt is the highest burden of proof applied in any legal proceeding because of the high stakes: a defendant’s very freedom is at issue. To establish guilt beyond a reasonable doubt requires that, after considering all the evidence, the jury can only come to one conclusion: that the defendant is guilty. A criminal defendant bears no burden of proof.

To provide more clarity about her first day in prison, I am going to film a video (click here to watch), and go through some bullet points below:

• She will likely self-surrender. Even though she has the means to escape, she will have time to get her affairs in order. She should bring contact list, medications, reading list and legal papers for appeal.
• First day in federal prison is all about INTAKE- and the realization that you no longer make any of the rules. That can be a rude awakening for man new prisoners–even more so for powerful business people and celebrities. Undressing, getting new clothes, a bedroll, canvas shoes, cough and squat – all combine to make that first day feel like the most demeaning experience ever possible. This is likely first strip naked, lift your breasts, etc thorough search of your body. Highly embarrassing.
• Unprepared, interactions with guards will make her feel like she is going crazy. Their nonchalance, disdain, or indifference to just another prisoner checking in is enough to drive some people mad. In my experience, they relish showing white-collar offenders how little they matter now.
• The medical intake and the psych intake can feel confusing. You want to think they care, they genuinely want to know about your health and how you are doing. In reality, they are going through the motions, checking the boxes, and generally following standard protocol: covering their ass!
• Women at low security or camps are generally welcoming and eager to help new inmates assigned to your unit or dorm. In the case of someone famous, word will have spread throughout the compound that Elizabeth Holmes is coming to the facility to serve her sentence. At least as far as the basics of coffee and shower shoes, she is likely to find women willing to guide her and answer questions. While she should always be careful taking anything from another prisoner, in this case she should not worry that they are looking for anything in return … no money, no sex, nothing. Most women are helping because they have been there too.
• Holmes will feel lots of trepidation about what to say and who to talk to once in the unit. She will likely feel she has nothing in common with anyone there until she allows herself to see that she does. Some women will approach her and offer assistance, famous or not.
• I do not suspect she will be approached for her legal papers. That rarely happens in a camp and most people know she went to trial and did not cooperate with the government.
• No bartering for your cube assignment on day one! They put you on a bed and that is where you stay until a counselor changes it. There is no head prisoner who runs the unit and changes people’s bed or bunkie assignments.
• Count time is a surreal experience Prisoners are counted five (5) times every day. Count Times are as follows: 3:00 am, 5:00 am, 4:00 pm (stand up count), 9:00pm, Midnight. Three of the counts happen while inmates are sleeping (Midnight, 3:00am and 5:00am). You have to be in your bed or in your cell during those counts. Just make a note of the time if you have to get up in the middle of the night to go to the restroom. If you are in the restroom during count, you will cause a recount and could be subject to disciplinary procedures.
• Odds are she will have little to no appetite that day or in the first few days.
• She may or may not have a phone call that first day.
• First night, the corrections officer’s keys during count will rattle her as they do everyone until you get used to it.
• She will likely be tested for illegal substances during intake. Surrendering under the influence, not a good idea.

With the right planning, any defendant can ensure their first day in federal prison is a productive, and not a traumatic one.

Best,

Justin Paperny

Justin Paperny

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