In an 85-page brief submitted to the U.S. 5th Circuit Court of Appeals, lawyers for former Big Five accounting firm Arthur Andersen LLP presented reasons why they believe the appeals court should overturn Judge Melinda Harmon's guilty verdict on the obstruction of justice charge issued last year.
Several reasons for overturning the verdict were noted in the appeal:
- Judge Harmon made evidential rulings that prevented Andersen's attorneys from presenting evidence of documents that Enron auditors preserved. Much of the case against Andersen centered around documents that Andersen's Enron auditors destroyed. Lawyers claim that copies of documents were destroyed, but originals or other copies were preserved.
- Judge Harmon allowed prosecution attorneys to introduce information about former rulings that went against Andersen in audits of Waste Management, Inc. and Sunbeam. Andersen attorneys argued that this information prejudiced the jury against Andersen. The appellate brief points out Judge Harmon's history of having at least two other verdicts overturned on the basis of prejudicial information of prior wrongdoings being allowed into evidence.
- The Andersen lawyers contend that the jury received incorrect definitions for certain legal terms, including "corrupt persuader," and that those incorrect definitions made it easier for the jury to reach a guilty verdict.
- Andersen lawyers argue that they should have been able to cross-examine the prosecution's key witness, former Andersen partner in charge of the Enron audit, David Duncan, about discrepancies that occurred in federal reports of his interviews. During the trial, defense lawyers asked Judge Harmon for a hearing away from the jury to question Mr. Duncan about errors he claims the FBI made in their reports of conversations with him. Mr. Duncan referred to misstatements in the FBI reports which ranged from, "Things I believe I did not say" to "Things that I possibly could have said, but don't believe I said." Judge Harmon denied the request.
- Andersen lawyers argue that they should have been able to use hearsay to counter out-of-court statements from prosecution witness Nancy Temple, the Andersen legal counsel who wrote an internal memo that was ultimately the testimony that the jury relied on in making its guilty verdict.
- Andersen lawyers asked that the appellate court consider the prolonged 10-day jury deliberations. During the deliberations, jurors indicated to Judge Harmon they were deadlocked, and sent a note stating, "We are not able to reach a unanimous decision." Judge Harmon refused to accept the statement and ordered the jury to "continue your deliberations in an effort to agree upon a verdict and dispose of this case." During the deliberations, defense attorneys asked Judge Harmon to instruct jurors that if they cannot agree on a verdict they must render a unanimous verdict of not guilty. The instruction is part of the pattern jury instructions for the 5th circuit. Judge Harmon refused to issue the order.
A quote from the appellate brief: "Of all the extraordinary things about this prosecution, the most notable and least debatable was how painfully close the jury found the case to be. In these circumstances, virtually any trial error must be regarded as harmful."