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After the judge in Arthur Andersen’s obstruction of justice trial gave jurors an instruction Friday afternoon that should make it easier for them to agree on a guilty verdict, defense lawyer Russell “Rusty”Hardin Jr. of Houston asked for a mistrial. But U.S. District Judge Melinda Harmon of Houston turned it down as the jury ended nine days of deliberations. In asking for the mistrial, Hardin cited the Allen charge Harmon gave jurors Wednesday after they said they were deadlocked. Harmon’s instruction late Friday says the jury need not decide the same Andersen agent acted corruptly to find the partnership guilty. The judge also refused on Friday to remind the jury that it must consider all elements of the charge when deciding if any Andersen agent acted corruptly. Hardin said that allowing the jury to deliberate longer would be “coercive.” “I’m simply saying the consequences to us are potentially disastrous,” he said. Prosecutor Andrew Weissmann, an Assistant U.S. Attorney, told Harmon he opposed the request for a mistrial. “There’s no reason to call it off and ask for a rematch,” he said. Harmon told Hardin it would be inappropriate to grant a mistrial when the jury is still waiting to hear the reading of some testimony. Friday afternoon the jury sent out a note asking to hear some of the testimonyof Securities and Exchange Commission official Thomas C. Newkirk, who testified May 7 and 8 at the start of the trial. But by the end of the day, the jury had not had a chance to rehear Newkirk’s testimony. At press time, deliberations were scheduled to resume Saturday morning. The note Harmon delivered back to the jury room late Friday afternoon decides one of the most important legal issues of the trial, one she said is a question of first impression. The jury asked Harmon if individual jurors can believe different Andersen agents acted knowingly and with a corrupt intent. Harmon told the jury it can, giving a big boost to the government’s effort to convict Andersen for destroying Enron-related documents at a time the Securities and Exchange Commission was investigating the troubled Houston energy trading company. It could break the deadlock that the jury announced Wednesday. Harmon’s instruction answered a note the jury sent out early Thursday morning, which asks, “If each one of us believes that one Andersen agent acted knowingly and with a 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 agent C.” Harmon told the jury the answer to the first question is no and the answer to the second question is yes. She told jurors they need not agree that the same Andersen agent acted with corrupt intent. Prosecutors have attempted to convince jurors that at least four Andersen employees could be considered corrupt persuaders — David Duncan, formerly the head auditor on the Enron account, in-house lawyer Nancy Temple, and Michael Odom and Thomas Bauer, both Andersen partners in Houston. To decide Andersen is guilty, jurors must find that at least one “corrupt persuader” at Andersen persuaded others, or attempted to persuade others, at Andersen to destroy documents to keep them from the SEC. The jury question is so important that both sides filed briefs and Harmon heard arguments early Friday afternoon. Defense lawyers said Harmon’s instruction to the jury late Friday is a coercive instruction. “The judge has now given them a completely new basis to get out of there [the jury room],” said defense lawyer Charles Rothfeld, a partner in Mayor, Brown, Rowe & Maw in Washington, D.C. “At a certain point, in an ordinary case, when the jury is hopelessly divided, at some point, they want to get out,” he said. He said the jury needed to hear an additional instruction from the judge reminding it that if it finds intent in one agent of Andersen, it also must find the agent was acting within the scope of employment and to benefit the institution. But Weissmann, a special attorney in the Enron Task Force, said it would be virtually impossible to ever convict a business if a jury has to unanimously agree that the same corporate agent engaged in wrongdoing. “Otherwise a corporation would say, ‘Hey, you have to figure out who did it,’” Weissmann said after Harmon’s ruling. Unlike the judge, Weissmann said he doesn’t believe Harmon’s ruling made new law. But Hardin, of Rusty Hardin & Associates in Houston, said the defense team cannot find a single case on point. The judge, in fact, said before her ruling that none of the cases cited by either side was on point, and she could see the view of both sides. “If anyone in the audience, the press, knows of a case that is directly on point, I would urge you go give me the cite right now. But I don’t believe that any of the cases cited can be distinguished on the facts of this case, because this is a partnership, not an individual,” Harmon said. “It’s a case of first impression, one that’s terrifying to a district judge, but I’m trying to decide which is the right way,” she said. Harmon said the facts of the case concern a partnership, which acts through its many agents. She said the charge calls on the jury to find beyond a reasonable doubt that the firm acted through corrupt agents. Denis McInerney, a defense lawyer, asked Harmon after her ruling to allow an additional question to the jury that would determine if the jury verdict is based on one corrupt persuader at Andersen or more than one. She reserved ruling on that request. Defense attorney Lee Rubin, a partner in Mayor Brown, says it would assist the defense in its appeal. But there’s also a risk, he says, for an appeal, if the jury says it relied on one corrupt persuader. After her ruling, McInerney asked Harmon to allow them to supplement its closing argument. The defense team had argued in briefs that taking the government’s view of the questions constituted a material amendment of the jury charge. But Harmon turned down the request. Andersen has been on trial in Houston since May 6. Brenda Sapino Jeffreys is a senior reporter with Texas Lawyer , a division of American Lawyer Media and an affiliate of law.com.

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