Posted 7:25 PM by Robert

Convicting Andersen By Calculus III:
Principal Guilty by Act of Guilty Agent Where No Agent Is Found Guilty

The judge presiding over the Andersen trial has ruled that the jury can convict where the jury is unable to agree that a particular agent actually committed any criminal act.

The prosecution is attempting to establish Andersen's guilt under the "guilty agent" theory: once an Andersen agent is found guilty, the guilt is imputed to Andersen. The judge's ruling allows the jury to bypass the need to find any agent guilty - and is therefore clearly wrong and, if appealed, will almost certainly be reversed. No prior case has accepted the principle now accepted by the judge that the corporation can be convicted where each jury member settles on believing a different agent committed a bad act but cannot agree on one agent. In short, the judge's ruling goes way beyond a judicial construction of existing criminal law and is a terrifying, enormous and grossly incorrect ex post facto expansion of criminal liability - and approaches the kind of action condemned by the Constitution's prohibition on ex post facto legislation.

The judge also seems to be confusing principles of civil and criminal law. This is a criminal case - resulting in punishment if there is a conviction. If there is no one, particular agent found guilty then nobody's action warrants punishing the corporation. The judge's ruling is so obviously wrong that it seems likely the judge realizes she is probably in error - but she may believe she perhaps has a colorable argument. She may have made her ruling on the hope Andersen will settle with the government after the erroneous conviction. But following the conviction Andersen will have no reason to settle, and ought to and probably will appeal.

Of course, if the Andersen attorney had fixed the problem by moving to amend the jury instruction before the jury started deliberating, they probably would have succeeded, since neither the judge nor the prosecutors would have been motivated to insist on a likely erroneous construction of the law. Indeed, at that point, the prosecutors thought they had an easy case and would probably have favored a correct construction of the law, since the incorrect construction on which they are now forced to rely - and the judge has now adopted - invites reversal.

Yesterday, the same judge deleted from the jury instructions a reminder to the jury that they had to find that the evidence showed guilt beyond a reasonable doubt and had previously engaged in a courtroom shouting match with Andersen's lead counsel.

It should be quite an appeal if the jury convicts.

Also, as noted in a previous post, an argument can be made that if Andersen were convicted on the express jury finding that one, identified agent was found beyond a reasonable doubt to have committed the crime in question, then that agent could be bound by that finding under the doctrine of collateral estoppel. If that argument is correct, then Fifth Amendment “jeopardy” should have attached to all of the agents no later than the time the Andersen jury began to deliberate (since all of the agent were each at risk of such a finding). Under the same assumptions, if Andersen is convicted pursuant to an express jury finding that no single agent was found to have committed obstruction of justice (but each juror has his or own agent believed to have committed the crime - as the judge now allows), then each agent should be able to assert a Fifth Amendment “double jeopardy” claim against re-trial. That is, an argument can be made that another consequence of the incorrect construction of the law now adopted by the court is that the government, having convicted Andersen on the theory of a "guilty agent" may be barred from actually convicting any of the agents by action of the doctrines of collateral estoppel and double jeopardy if the jury does not find a particular agent to have committed the crime beyond a reasonable doubt. Moreover, it should not be necessary that collateral estoppel does apply to bind an agent - it should only be necessary that it might apply in any conceivable circumstances or application of judicial discretion, because in that case each agent was placed at risk by the Andersen trial (or, in Fifth Amendment terms, "in jeopardy"). Of course, under prevailing notions of double jeopardy, if a jury has tried and failed to reach a unanimous verdict, a new trial may be held - but if there is a conviction of the corporate defendant this rule does not apply. The question then seems to becomes one of untested collateral estoppel policy.

Is that argument correct? It is hard to say, mostly because the judge's ruling in this case is already so bizarre that its consequences rapidly move analysis into the furthest reaches of speculation.