Jurors' question a sign of leaning?

Houston Chronicle ^ | 06/14/02 | MARY FLOOD and TOM FOWLER

[GalvestonBeachcomber]

What U.S. District Judge Melinda Harmon tells the deadlocked jury in the Arthur Andersen shredding trial today could decide the case

On Thursday, the eighth day of their deliberations, the jurors asked an unusual question that prompted speculation they may be headed toward finding Andersen guilty of obstruction of justice for destroying Enron-related documents.

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

The lawyers agree it appears the nine-man, three-woman jury cannot agree who instigated the destruction to keep records from investigators -- former partner David Duncan, in-house attorney Nancy Temple or senior partners Mike Odom and Tom Bauer.

Harmon heard arguments from attorneys Thursday and will review their briefs and listen to further debate this morning. Her options are: Tell jurors that to convict they must agree on which person was the instigator; tell them they can disagree on the instigator but still convict; or not answer at all, but simply refer them to the jury charge, which obviously is not clear on the point. But if she does the latter, the panel might remain deadlocked.

"The judge's decision here may well determine the outcome of this trial," said Robert Mintz, a former federal prosecutor who practices law in New Jersey.

He said there is little applicable law to rely upon. This case, because it requires something called "specific intent" -- meaning intent is key to whether there even was a crime -- is different from the few corporate cases where jurors have disagreed on which person was responsible, yet found a corporation guilty.

Jacob Frenkel, a Washington, D.C.-based former federal prosecutor and SEC lawyer, said this jury's question appears to reveal the panel's "final barrier to a verdict."

"They've got only one charge before them and no room for compromise. The judge could answer this in a way that creates room for compromise," he said, noting that many other criminal cases involve multiple charges. For instance, he said, the government could have filed two charges, one for destruction of e-mail and another for destruction of paper documents.

Though no precedent is directly applicable, Frenkel said, Harmon could extrapolate from other case law that jurors may find different Andersen employees had criminal intent, yet still convict the firm.

"But it will be likely that she is making new law if she does that. District judges hate to make new law; it opens them up for reversible error," Frenkel said.

Prosecutors argued the judge should tell jurors that they need not agree on which employee had criminal intent. They want her to tell them:

"Each of you must find beyond a reasonable doubt that at least one agent of the defendant acted with the required knowledge and intent. However, you need not all agree unanimously that it was the same agent of the defendant who acted with the required knowledge and intent."

Assistant U.S Attorney Andrew Weissmann compared the Andersen executives' actions to cases involving gun-related crimes in which jurors disagreed on the gun that was used but were still able to reach a verdict.

"It's analogous to thinking of Nancy Temple, David Duncan and Mike Odom as guns used in carrying out this policy," Weissmann said. "You don't have to find which gun, just that a gun was used."

Defense attorneys, however, said the government's argument misses the point.

"We're talking about the most critical element in this case: intent," said defense attorney Denis McInerney. "In a specific intent crime you cannot convict an entity when no specific individual had that specific intent."

After jurors told the judge Wednesday they were deadlocked, she dropped a "dynamite" charge on them, asking they try to resolve their differences and agree on a verdict.

Jurors quit for the day Thursday at 6 p.m. and are due back today at 11 a.m. On Thursday, they also asked to hear more evidence. They were allowed to view the training tape in which Odom mentions that it is acceptable to destroy documents any time before a subpoena is received. They also were read a transcript of more than an hour of the testimony of Andersen partner Amy Ripepi about her understanding of Temple's discussion of the document-retention policy.

The jury also asked for some testimony from government star witness Duncan, Andersen's lead auditor on the Enron account, about an Oct. 16 disagreement over Enron third-quarter losses and an Oct. 23 conference call. The judge said those portions will be read to the jury today.

Lead Andersen attorney Rusty Hardin said Thursday the defense is considering whether to ask for a mistrial because of the deadlock. Prosecutors are not likely to do so, because if it were granted they could not retry Andersen.

Hardin said they can't know for sure where the jury is headed, so asking for a mistrial could backfire. But he said it is also possible the jury will continue deliberating through the weekend.

"We want a final decision that goes our way or no decision at all," Hardin said.

If there is a mistrial, Hardin said Andersen does not intend to return to the bargaining table to try to settle the case.

The jury's questions make it clear they continue to focus on what the prosecution argued were four "corrupt persuaders," individuals who encouraged others to destroy documents with a criminal motive. In that group are Temple, Duncan, Odom and Bauer.

Temple wrote an Oct. 12 e-mail urging Odom to tell the Enron team to get in compliance with the document-retention policy. Duncan and others said they took that as a sort of coded instruction to begin destroying documents.

Temple exercised her Fifth Amendment rights and did not testify. But prosecutors were still able to introduce into evidence her handwritten notes, which seem to indicate that as early as Sept. 28 she and others were worried that the Enron audit work would draw regulatory scrutiny.

Duncan, who pleaded guilty to obstruction of justice and testified as part of an agreement that could get him a lighter sentence, told employees in an Oct. 23 meeting to comply with the policy.

Andersen manager Patti Grutzmacher testified how Bauer, who also took the Fifth, told her that if he were to talk about "getting rid of documents" he would couch it in terms of the document-retention policy.

Hardin wasn't allowed to ask Grutzmacher to clarify what she thought Bauer meant by the comment.

Odom, who was not called by either side, gave a videotaped training session, in which he discussed the policy.

"If it's destroyed through the course of normal policy, and litigation is filed the next day, that's great," Odom says on the tape. "Whatever there was that might have been of interest to somebody is gone and is irretrievable."

[Jen]

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