The unusual trials of Ghislaine Maxwell and Elizabeth Holmes

In a rare turn of legal events, two high-profile women stand trial in two federal courtrooms this week on criminal charges more commonly lodged against men:

First, the alleged sexual predation on the part of Ghislaine Maxwell, a British socialite and close confidante of the late Jeffrey Epstein, a registered sex offender. Maxwell’s federal criminal trial began on Monday. She faces six counts, including enticing and transporting a minor to travel to engage in criminal sexual activity and conspiracy to commit those offenses.

Second, the alleged wire fraud on the part of Elizabeth Holmes, whose charges stem from her blood testing start-up company, Theranos. Holmes’s trial is now in its 12th week on claims that she and a co-worker, Ramesh “Sunny” Balwani, “used advertisements and solicitations to encourage and induce doctors and patients to use Theranos’s blood testing laboratory services, even though [they] knew Theranos was not capable of consistently producing accurate and reliable results for certain blood tests.”

While no one would equate the charges of child sexual abuse with alleged fraud, Maxwell and Holmes share a number of uncommon but notable characteristics: They are both women. They are both white. They wound up on trial because of their deep involvement with some very powerful people.

In the age of the #MeToo social movement, it feels unusual to witness these kind of serious criminal charges brought against women. In fact, in fiscal year 2020 women accounted for only 12.3 percent of sentenced federal offenders. Yet, according to the Sentencing Project, a research and advocacy center focused on reducing racial disparities and incarceration in the criminal justice system, the number of women in U.S. prisons surged by over 700 percent from 1980 to 2019. That is a rate of growth twice as high as that of men over the same period.

The data is also remarkable on race. Black women were 1.7 times more likely to be incarcerated than white women in 2019, although between that year and 2009, the rate of imprisonment had declined by 60 percent for Black women and climbed for white women by 41 percent.

Regardless, incarcerated women in America tend to be low-income. Over 60 percent are mothers with children under the age of 18 and their sole caregivers. As a result, their kids are more likely to be placed in foster care, significantly increasing their chances of homelessness and entanglement with the criminal justice system.

This is where the cases of Ghislaine Maxwell and Elizabeth Holmes significantly depart from statistical norms. They are not remotely low-income — and they are startlingly well connected.

Jurors in the Maxwell case could hear about her alleged “little black” address book containing the contact information about young women and girls. The address book and flight logs from Epstein’s four helicopters and three planes also reportedly contain big names, including former mayors, governors and presidents as well as royalty, actors and supermodels. To be clear, only Maxwell and Epstein have been charged with criminal wrongdoing.

As for Holmes, her list of investors included $100 million from Michigan’s DeVos family. She obtained another $945 million from well-known venture capitalists, as well as from heirs to the Amway, Walmart and Cox Communications fortunes. Billionaire media tycoon Rupert Murdoch had a $125 million stake in Theranos, which he reportedly sold in 2017 for $1.

Holmes’s lawyers are pushing back on the narrative that she is to blame for the Theranos losses. As reported by the New York Times, her position is “that the investors were the ones at fault for not digging into Ms. Holmes’ claims” by securing access to its financial records as a part of their due diligence.

For her part, Maxwell’s lawyers are expected to argue that she was only charged because Epstein unexpectedly died by suicide in jail, that “guilt by association” is not a crime, but that the public has scapegoated Maxwell as the one to blame.

To be sure, if  Maxwell and Holmes are found guilty of the charges against them, accountability through the criminal justice system is warranted. But make no mistake: They did not act in a vacuum. The question remains as to whether the other unnamed rich and powerful people in their orbit may have engaged in wrongdoing as well and will be held accountable, too.

Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why” (forthcoming February 2022). Follow her on Twitter: @kimwehle