- The Washington Times - Saturday, June 15, 2002

HOUSTON (AP) The judge in the Arthur Andersen firm's obstruction-of-justice trial ruled yesterday that jurors do not have to agree on who committed the crime as long as each of them believes somebody did.
U.S. District Judge Melinda Harmon's ruling, a victory for prosecutors, means the panel can disagree on which individual Andersen employees destroyed documentation of Enron Corp.-related records in October and November as long as all of them think someone "acted knowingly and with corrupt intent."
The ruling could remove a stumbling block for a jury that earlier told the judge that it was deadlocked.
Judge Harmon said she couldn't find a parallel case.
"If someone knows of a case that's directly on point, I would really urge you to give me the cite right now so I don't make a mistake and rule incorrectly," an exasperated Judge Harmon said in the courtroom before announcing her decision.
Her ruling ended two days of debate that began Thursday morning, when jurors issued a flurry of notes after declaring themselves deadlocked the previous night. The most important of the notes to the judge read:
"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?
"Can one believe it was Agent A, another believe it was Agent B, and another believe it was Agent C?" the note Thursday asked.
Judge Harmon's answer came on the ninth day of deliberations. She acknowledged that it appeared to be breaking new legal ground and appeared worried about her ruling.
"I'm kind of in a position of a case of first impression, which is terrifying for a district judge," she said.
Prosecutors had argued that the nine men and three women could decide that different people prompted mass shredding in October and November by suddenly emphasizing a document-retention policy to thwart a Securities and Exchange Commission probe of Enron, because they all would agree on the Chicago-based firm's guilt.
But Andersen's legal team argued that jurors must unanimously agree the same person intended to subvert the SEC, and they could not pick and choose among Andersen partners or employees.
Robert Rigg, head of the criminal defense program at Drake University in Des Moines, Iowa, said earlier in the day there is case law that suggests a jury does not have to agree unanimously with a particular theory.
A person can be charged with murder and felony murder and jurors "only have to be unanimous in that you have committed the act," he said.
"When they talk about agents, I think it means any person or persons rather than a specific individual, because they're charging the corporation, not an individual," Mr. Rigg added. "So I don't think they have to be unanimous. They just have to find someone did so with intent."
In the instructions read to jurors by Judge Harmon June 5, they were told that to find Andersen guilty, "the government must prove, beyond a reasonable doubt, that each of the elements of the offense was committed by one or more agents of Andersen, acting within the scope of their employment with the firm."
The trial, which started May 6 with jury selection, was in its 33rd day yesterday. Deliberations began June 6.
Yesterday, jurors heard requested excerpts from testimony by David Duncan, Andersen's former top Enron auditor who testified for prosecutors in an agreement stemming from his own guilty plea to obstruction of justice.
The panel wanted to hear Duncan's opinion about discussions with former Enron Chief Accounting Officer Rick Causey about third-quarter losses.

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