Man Without Qualities

Thursday, June 13, 2002

Convicting Andersen By Calculus II:
The Like of It Now Happens

In a prior post, the Man Without Qualities pointed out that the Andersen jury instructions created a serious problem by leaving unclear whether the jury had to settle on one Andersen agent as a 'corrupt persuader."

Well, the Wall Street Journal is now reporting [link requires paid subscription] that this may be exactly the hang up in Houston:

The new note .. asked whether, in order to convict the accounting firm, each juror had to agree that the same person at Andersen was to blame for whatever crime was committed.

"If each of us believes that one Andersen agent acted knowingly and with corrupt intent, is it for all of us to believe it was the same agent?" the note said. "Can one believe it was Agent A, another believe it was Agent B, and another believe it was Agent C?"


Prosecutors have tried to pin the title of "corrupt persuader", an element necessary in the federal indictment, onto Andersen partners David Duncan, Nancy Temple, Tom Bauer and Michael Odom for ordering employees to follow the firm's document retention policy, which calls for the destruction of documents not part of final work product.

Defense attorneys argued that jurors must unanimously agree on at least one corrupt agent. ...

`"As long as they agree on the bottom line, it isn't necessary for them to agree on the same actor,'' argued Assistant U.S. Attorney Andrew Weissmann.

Judge Harmon hasn't yet ruled on the latest question.

Andersen should win on this construction of the law. But, as the Man Without Qualities pointed out in the prior post, this is something the Andersen lawyers should have made clear in the jury instruction before deliberations began. It's nice that Andersen's attorney, Mr. Hardin, is smart and folksy. But a lawyer also has to get the law right.

UPDATE: The New York Times now also has the story.

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