Holmes could be free for more than a year

Judge recommends Theranos founder go to Texas prison camp

When Judge Edward Davila sentenced Theranos founder Elizabeth Holmes to more than 11 years in prison last week, he ordered that she surrender for imprisonment April 27. But legal experts say Holmes could remain free well past that date.

After Davila sentenced Holmes, 38, on four counts of felony fraud, one of her lawyers in the courtroom told him her legal team planned to file a “motion for bail pending appeal” that would allow her to stay out of custody while she appeals the jury's verdict.

If Davila grants that request — or if he denies it but Holmes gets the appeals court to approve it — she could delay her imprisonment significantly.

“It could be a year from now, it could be 15 months from now,” said Bay Area criminal defense lawyer David Cohen.

If Holmes' appeal fails — and successes are rare — she may end up in a minimum-security women's prison camp in Texas, if federal prison authorities follow a recommendation from Davila.

Holmes was convicted in January on four counts of defrauding investors in her now-defunct Palo Alto blood-testing startup out of more than $144 million. She is pregnant and the mother of a 15-month-old son, born weeks before the start of her four-month trial.

Holmes has remained free for the duration of her four-year criminal case; therefore, it's unlikely Davila or the 9th Circuit federal appeals court that will hear her appeal would decide she's a flight risk or threat to the public, and deny her motion for bail pending appeal on either basis, legal experts said.

Whether Holmes succeeds in keeping free until the end of her appeal will come down to one question, said Redwood City criminal defense lawyer Dean Johnson: “How much meat is there to this appeal?”

Davila will be the first to examine that question, as Holmes' motion for bail pending appeal will go before him, after she files her notice of appeal within the next week or so. Her lawyers will argue that Davila erred in one or more rulings