Andersen Fights Feds’ Bid on Jury Instructions

Prosecutors and defense attorneys in the Arthur Andersen obstruction of justice trial sparred Saturday over whether jurors should be told that some accounting firm executives refused to testify.

U.S. District Judge Melinda Harmon scheduled the unusual weekend session, held outside the jury’s presence, to hear arguments on the government’s request that she tell the jury that certain Andersen employees who were asked to testify refused. In past weeks, as the prosecution presented its case, three Andersen employees asserted their 5th Amendment right against self-incrimination.

Andersen, the nation’s fifth-largest accounting firm, is accused of obstructing a federal investigation into whether fraud caused its client Enron Corp. to collapse.

If convicted, Andersen automatically would lose its ability to audit public companies.

Andersen’s defense lawyers argued that jurors will draw a negative inference about why the three witnesses, including Andersen in-house lawyer Nancy Temple, invoked the 5th Amendment.

“This is one of the most breathtaking positions” the government has taken, said Andersen attorney Denis McInerney. “It’s an unprecedented proposal, and it’s totally improper.”

“We’re not asking for an instruction that they invoked their 5th Amendment rights,” countered prosecutor Samuel Buell.

“We are asking that the jury be told the fact that we called them and they refused to testify, but that they should not speculate why or draw a conclusion from the refusal.”

Harmon acknowledged the defense notion that “‘refuse to testify’ connotes mob bosses before the House Un-American [Activities] Committee.”

But she sought to “find some words that would tell the jury the government tried to get the witnesses to testify” that wouldn’t trigger a negative image.

“It’s not possible to do that,” McInerney shot back. “You’re going to break new ground here, which is ground that should not be gone into.... Everybody knows exactly what is going on. It will be an inference that will be held against Arthur Andersen because they are Andersen employees.”

Harmon postponed a decision on final jury instructions until after the defense rests. Prosecutors finished presenting their case Friday. The trial resumes Monday, with the first witness for Andersen expected to testify.