Man Without Qualities

Sunday, June 16, 2002

My One and Only

According to post trial interviews, it turns out that the Andersen jury did not rely on Judge Harmon's instruction that they need not settle on one agreed "corrupt persuader." The jury in fact unanimously identified a single corrupt persuader: Nancy Temple, the Andersen attorney in Chicago. The jury apparently came up with its own theory of guilt, one that the prosecutors had not even advanced. The massive destruction of e-mails and documents so celebrated by the government and the media was dismissed by the jury as "largely superficial and largely circumstantial.'' The Associated Press reports:

Jury foreman Oscar Criner, who was the last holdout before the panel delivered the verdict after 10 days of deliberations, called all the evidence regarding mass shredding and e-mail deletion ``largely superficial and largely circumstantial.''

Instead, the jury focused on the suggestion that Temple, based at Andersen's headquarters in Chicago, gave Duncan regarding a memo he was writing about a conversation he had with Enron chief accounting officer Rick Causey.

Temple asked Duncan to remove a sentence and to eliminate her as an addressee because it might increase ``the chances that I might be a witness, which I prefer to avoid,'' according to testimony and court documents. She also suggested Duncan delete ``language that might suggest we have concluded the (Enron earnings) release was misleading.''

On the other hand, the Associated Press also reports that "the same jury said it didn't believe in Duncan's guilt, even though he entered a guilty plea earlier this year." Duncan is to be sentenced August 26.

It is worth keeping in mind that the mere statement by dismissed jury members that they did not rely on Judge Harmon's erroneous jury instruction is not in itself enough to eliminate the possibility of reversal of the conviction for that error. Rather, appeals courts "review allegedly erroneous jury instructions de novo to determine [whether] the instructions, taken as a whole, show a tendency to confuse or mislead the jury with respect to the applicable principles of law." The appeal will be determined on the official court record - and the out-of-court statements by dismissed jury members won't count for much unless there is a claim of actual jury misconduct.

In short, Judge Harmon's erroneous jury instruction may be an error on which the jury did not rely, but which may require reversal of the Andersen conviction anyway. Perhaps the prosecutors now wish they hadn't won that round. [UPDATE: And correspondingly, Andersen is probably happy that the issue wasn't corrected - contrary to the harpings of the Man Without Qualities. Boy, that Mr. Hardin's intuitive, folksy genius is really something to watch in action!]

The prosecution may now consider indicting Ms. Temple for "obstruction of justice" - and then try to pressure her into cooperating or try to prove the case against her if she won't cooperate. Both of these possibilities seem unlikely. The jury's theory of guilt seems hopelessly wrong. That's probably the reason the government didn't try arguing it in the first place. Specifically, the jury "found that Ms. Temple's editing suggestion to David B. Duncan, the lead partner in the Enron account, on a single memorandum obstructed justice. Ms. Temple, 38, recommended that Mr. Duncan remove a passage that described a disagreement with an Enron executive over whether the wording of a news release on the company's finances was misleading." If the Andersen attorneys had known the jury might veer in this direction, it would not have been hard to introduce evidence highlighting how ambiguous these actions of Ms. Temple were. It therefore seems unlikely that the prosecutors will want to try to repeat this fluke by actually going to trial against Ms. Temple on the theory - and the government's own theory that Ms. Temple cleverly induced destruction of documents by citing to the Andersen "document retention policy" was rejected by the jury. Ms. Temple is a former litigation partner at one of the best law firms in the country, so she probably understands all that.

Further, as an Andersen in-house lawyer, much of her involvement is likely covered by attorney-client privilege which only Andersen (not Ms. Temple) can waive. There are exceptions to that privilege - such as advice given to advance a crime - but those exceptions do not come easily. So Ms. Temple may not have all that much to offer even in the unlikely event she wants to cooperate.

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