Man Without Qualities

Wednesday, June 12, 2002

Unchained Melody In Houston

The Houston jury considering the obstruction of justice case against Andersen has now declared itself deadlocked to the judge. The judge then ordered the jury to continue deliberations and "removed a sentence from instructions, known as an Allen Charge, approved by the 5th U.S. Circuit Court of Appeals that reminds jurors they must render an innocent verdict if 'evidence fails to remove reasonable doubt.'''

One would normally think that a jury should be reminded that a criminal charge needs to be proved beyond a reasonable doubt. If the removal of this sentence makes the difference in obtaining a conviction, the government may have a tough time showing the jury didn't convict against the law. If the removal of this sentence is expected to make no difference in obtaining a conviction, why did the government ask for it or allow it?

It is worth a moment to contemplate the contrast these developments make with the Enron-fueled media hysteria raging over the past several months. Those convinced of the Enron/Andersen guilt, when faced with the observation that the evidence of deliberate and intentional fraud seemed pretty thin would generally revert to what was thought to be terra firma: the destruction of documents. There, at least, was a clear crime - obstruction of justice. Such agitatedly convinced people would (and do) argue, their voices literally or in literary tone often rising to a piercing shriek, "It is clear that anyone destroying so many bits of paper and electronic engrams must be trying to conceal a monstrous crime!!" Of course, very few people have been faced often or consistently with the observation that the evidence of deliberate and intentional fraud seems pretty thin - indeed, perhaps only the valued regular readers of the Man Without Qualities have had this experience.

As also noted by the Man Without Qualities previously, to convict on an "obstruction of justice" charge the government doesn't even need to show there was any crime - monstrous or otherwise - which might have been revealed by its investigation. The government only has to prove that one Andersen agent ordered the documents destroyed with the intent to obstruct the investigation itself.

But the jury says it can't even get that far - even though the Andersen partner in charge, David Duncan, confessed to exactly that. There is at least one clear lesson in all this: if David Duncan has been taking his attorney's advice, the attorney should be fired immediately regardless of whether the jury eventually ekes out a conviction of Andersen! There was no need for Mr. Duncan to succumb to government and media pressure the way he did.

As for the rest of us, there is little hope that the Enron/Andersen lynching party will calm down soon. So look for charges that the prosecutors were "incompetent," or "threw the case", or are in cahoots with Enron! And, most of all, look for this to be used against John Ashcroft.

Now, if only we could find a way to make the government really take a serious interest in the behavior of the commercial banks in the Enron meltdown - especially Citibank and its own Darth Vader: Robert Rubin. The silly, pseudo-investigation masque before the Congressional committees was a bad joke.

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