Random Thoughts – Randocity!

As we should already know, now-disgraced and convicted CEO Elizabeth Holmes operated Theranos. Theranos was to offer the world a fantastical new way of testing people’s health concerns for all manner of blood diagnostics all with the tiniest drop of blood. It’s fantastical because Elizabeth Holmes’s Theranos was never able to make this testing technology actually work (the entire basis for the fraud). Ms. Holmes has now been convicted of wire fraud and defrauding investors, a federal crime. More than this, Ms. Holmes has now been sentenced to serve 11 years in a federal prison.

NBC News Opinion

One NBC opinion piece, written by a former federal prosecutor and current attorney, Andrey Spektor, contends that Elizabeth Holmes’s 11 year sentence is too harsh. This author does not agree. Why? Because of the nature of and, more importantly, the real dangers posed by the device she failed to create.

Andrey’s contention is:

But that calculation was the least important component of determining Holmes’ sentence because the judge ultimately disagreed with the probation estimate and, anyway, no rational judge would have sentenced her to anything approaching life in prison. Among other things, she is a first-time, nonviolent offender whose crime did not lead to anyone’s death.

I contend that this highlighted statement is, at best, inaccurate and is, at its worst, false. There may actually have been illness and death as a result of Theranos’s deception, when the Theranos “Edison miniLab” machine (pictured), did not work as purported and likely impacted medical treatments needed (or weren’t needed, as the case may be) for medical patients. For Andrey to contend that no one died (or by extension, weren’t injured or hurt), that’s incredibly wrong thinking.

Ms. Holmes’s deception impacted many people’s health; health which relied on accurate testing results from Theranos’s Edison miniLab machine. Without accurate testing results, the wrong medications could have been prescribed, the wrong treatment plans could be implemented, up to and including not prescribing medications which could save people’s lives… or indeed the opposite may have occurred; the wrong prescription may have been prescribed causing injury or potentially death. Claiming her fraudulent testing equipment couldn’t cause harm is fallacious and disingenuous. Worse, according to the whistleblowers, Ms. Holmes knew that her miniLab testing equipment didn’t work!

Dangers to Society

The fact that the Edison’s machine’s deception was “caught early” is of no consolation to those who received inaccurate test results from Theranos’s intentional equipment deception. In other words, you can’t just play “god” with people’s lives and health and expect to get away with it.

To claim that her defrauding and misleading and intentional deception about her alleged testing methodology, which clearly did not work properly (or at all), didn’t impact people’s health and lives is insulting to those who could have lost their lives to Theranos’s medical fraud. Even still, some still could lose their lives early because of Theranos.

That the fraud was caught early because of two conscientious whistleblowers within Theranos employee ranks is more a testament to those two individual’s forthright and upstanding conscience than of Elizabeth Holmes coming clean about the dangers the Theranos Edison ultimately posed to society. Elizabeth Holmes would likely have continued to play this dangerous game if those two whistleblowers hadn’t come forward. It wasn’t Elizabeth Holmes who “came clean” on the wrongness of her equipment. It was those two Theranos whistleblowers who put their careers in jeopardy to save the lives of others.

11 Year Sentence

For all of these reasons above, I vehemently disagree with Andrey Spektor’s opinion. Elizabeth Holmes’s 11 year sentence is not at all inappropriate or too long. In fact, I’d say her sentence was downright lenient considering the danger she, Theranos and her fraudulent testing equipment posed to society as a whole. If her equipment’s fraud had not been found early, we could have gone perhaps a year or two or longer without knowing how many people might have been misdiagnosed, given the wrong medical treatments or, indeed, given no treatments at all for preventable, but fatal illnesses if left untreated. In short, Elizabeth Holmes (and her fake testing equipment) was (and is) a danger to society.

I contend that 11 years is way too lenient for that level of danger and risk that she and Theranos posed to the world. She doesn’t deserve leniency for having committed this level of medical malfeasance against the public at large. While one can try and argue that the trial wasn’t about her medical malfeasance specifically, the fraud fully stemmed from that malfeasance. Thus, any malfeasance must be considered as part of the sentencing. It can’t be “distanced” or “separated” as though it didn’t exist. That malfeasance was the entire reason Elizabeth Holmes’s machine was found to have caused the defrauding of investors. Eye on the ball, people.

While a trial for the affected patients was not allowed to move forward, that doesn’t preclude the absolute sheer negligence and willful malfeasance Holmes performed against an unsuspecting public. Elizabeth Holmes knew her machine didn’t work. Yet she STILL went ahead with placing it into Walgreens knowing its problems. That’s not innocent happenstance; that’s willful malfeasance and, at worst, malevolence. Conscientious people don’t put other people in harm’s way intentionally. Elizabeth Holmes put people in harm’s way. One might want to call that blind ambition. Call it what you will. Blind ambition can still result in someone doing the wrong things for the wrong reasons, even knowing that the outcome might cause harm to others. That can’t be dismissed with an 18 month sentence (as Ms. Holmes has requested), a mere slap on the wrist.

No, the 11 year sentence by federal sentencing Judge Edward Davilla was definitely of a sufficient length as to give her pause AND send her a solid message for what Theranos and she had done to the public… even if not specifically stated by judge Davilla; this judge knew the stakes.

Babies as Shields?

One thing Elizabeth Holmes appears to also be shrewd at is trying to get out of her 11 year sentence. She’s now attempting this by getting pregnant. There’s absolutely nothing wrong with starting a family… but on the heels of beginning an 11 year federal criminal sentence? I get that her biological clock is ticking, but it primarily says she’s using an infant as a shield. That’s not a good look and it fully supports the above malfeasance. She’s putting her baby in harm’s way to protect herself from going to prison, or at least so she hopes. It’s a crude and crass way to begin prison… and it leaves her kids in the lurch without a parent for 11 years.

She knew she had been convicted, yet she chose to get pregnant anyway? A judge should have held her in contempt of court over that. When Holmes’s first child was born, her trial had not yet begun. Thus, there was no way to know which way her trial might go. Her second child, however, is simply being used as a pawn against incarceration. That’s both a nasty and very vile reason to have a child. It doesn’t show compassion for the child, it shows self-preservation by Holmes. It’s an incredibly uncaring and self-centered tactic, especially for a baby that’s now caught in her manipulative crossfire. As I said, distasteful.

She’s now delivered her second child, but it’s almost certain she’s working hard to conceive a third as yet another shield. Enough’s enough here. If she pops up pregnant again, cite her for contempt of court, let her carry that child to term in prison and give birth to that child behind bars. The sentence was issued and it must be carried out. Having a baby shouldn’t become a “get out of jail free” card… not for her, not for anyone. Worse, babies should never be used as incarceration blockers.

Judges should make it perfectly clear to any convicted felon who decides to conceive a baby after conviction means possible contempt of court and that neither the pregnancy nor the birth will stop the incarceration from occurring. Playing these games with the court should always mean contempt of court and possible longer incarceration time.

Did Elizabeth Holmes get the correct sentence?

No, but not for the reasons Andrey Spektor proposed. In fact, Ms. Holmes got a far more lenient sentence than she should have been given considering the real medical dangers both she and her testing machine imposed on society. Ms. Holmes should count herself lucky at receiving only 11 years. Let’s hope that when she gets out of prison, she doesn’t try to start yet another dangerous “medical testing” company.

As for those 11 years Ms. Holmes faces? This amount of incarceration also sends a clear message to other would-be CEOs not to play with people’s lives using untested medical technologies in the goal of gaining personal fame, wealth or for any other reason.

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