Andersen Asks Judge Harmon For Acquittal or Retrial
According to a copy of the motion that was released to the press, the judge can and should set aside the jury's verdict at this time for a number of reasons, including the following:
- It is extremely rare, if not unprecedented, for jurors to announce that their verdict rested on a legally invalid ground. No fewer than six jurors reported that the jury rejected the government's allegations of document destruction and instead convicted the firm because an in-house attorney "corruptly" persuaded an audit partner to "alter" a memo. This thinking lacks validity because: (1) The memo was edited, not altered. (If the firm had changed a hard-copy original of a document by whiting out the date and substituting a false one, that could be seen as illegally "altering" a document, but comments on a draft  do not qualify.) (2) The attorney's comments cannot be considered "corrupt" persuasion. (Congress directed that bonafide legal advice would be an exception to the obstruction statutes.)
- Reliance on the e-mail from Andersen's attorney in reaching the verdict is a fatal variance from the indictment. The law provides that a defendant must be informed of the charges against him, so he can prepare a defense. But the government never argued that the edited memo obstructed justice, so Andersen had no notice that the e-mail of proposed edits could be regarded as a criminal act. If the firm had known of these charges, its attorneys would have introduced or highlighted the evidence and arguments needed to dispute the allegations, and the jury would have received adequate instructions to avoid a misunderstanding. Because of the omissions and resulting errors, the widely-publicized verdict has received considerable public commentary and criticism. Allowing it to stand can only undermine, rather than protect, the credibility of the criminal justice system.
- It is plain that the government has not proved its case. There is no evidence that anyone at Andersen used improper methods to persuade others to destroy evidence or that an official proceeding was ongoing or scheduled at the time of the alleged obstruction – both of which are required elements of the alleged offense. The court's instructions were not totally clear on these critical elements.
If Judge Melinda Harmon does not set aside the verdict, Andersen's attorneys plan to file an appeal with the U.S. Court of Appeals, 5th circuit.