Even in a trial of twists and turns, the closing arguments in the Andersen obstruction-of-justice trial were something of a surprise. After doing their best to undermine the testimony of audit partner John Riley in a brief rebuttal case, the prosecutors launched into closing arguments that seemed to turn the guilt away from the auditors toward Andersen's in-house counsel Nancy Temple and the rest of the firm's legal department.
Blaming The Lawyers
Prosecutor Sam Buell painted Andersen as corrupt and portrayed Ms. Temple as a mastermind of document destruction. "She never says 'stop,' she never says 'retain,' she never says 'Hold on to the Enron documents,' because she's interested in document destruction, not retention," charged Mr. Buell.
Ms. Temple did not appear or testify at the trial. Yet, in his 2-1/2 hour closing argument, Mr. Buell spoke more of her role than the roles of those who did testify, including former lead Enron audit partner David Duncan. White-collar crime expert Robert Mintz suggests this apparent change in strategy probably resulted from the fact that Mr. Duncan's testimony provided more doubts for the government than it resolved. "The biggest problem is that Duncan didn't come across as someone who was convinced of his own guilt," explained Mr. Mintz. "If he can't figure out, how can you impute liability to the entire partnership?"
The Burden of Proof
More predictably, lead defense attorney, Rusty Hardin quickly zeroed in on the subject of intent. The government bears the burden of proving that Andersen intended to "subvert or undermine" an official proceeding. At one point in his closing argument, Mr. Hardin put up Mr. Duncan's testimony in huge type. Basically, the former audit partner said he broke the law when he told employees to adhere to the firm's document policy, knowing that would lead to the destruction of documents. "That is not a crime," Mr. Hardin thundered. "God help the man for having pled guilty...but that is not a crime."
For Andersen to be found guilty, jurors must find that the firm intended to keep the documents from the Securities and Exchange Commission when it shredded them. The jury got the case around 9 pm Houston time on June 5, 2002 and was sequestered for the night. Legal experts say the longer the jury is out considering the evidence, the more likely they will side with Andersen.