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David Schwab can’t remember whether it was on the eighth or ninth day of deliberations. But the 26-year-old executive pastry chef, who served on the jury that convicted Arthur Andersen of obstruction of justice last month, recalls distinctly expressing frustration with a fellow juror who was equivocating. “I took all the exhibits and piled them up on the table in front of him,” Schwab says, “and, I said, ‘Read this. Then maybe you can decide.’” That messy moment was among a number of unsettling situations during 10 long days of deliberations in steamy Houston. A panel of three women and nine men discussed and debated the arguments and evidence that federal prosecutors and Andersen’s defense lawyer, Russell “Rusty” Hardin Jr., presented during a six-week trial in U.S. District Judge Melinda Harmon’s courtroom. The jury, which included five blacks, covered a broad swath of American society. The panel included a retired bus driver, a manager at an airline, a graphic artist, a computer science professor, an engineer and two retail saleswomen. For this story, seven jurors — Schwab, Oscar Criner, Jack Gallo, Charles Dumas, Wanda McKay, George McCloud and Catina Sorrell — spoke at length about deliberations and the trial. Bickering was frequent during deliberations, a dynamic that carried over to the Galleria-area hotel where jurors were sequestered. “Sometimes it got a little animated,” concedes Criner, who served as foreman. “I threw a book on the table at one point, and said, ‘What is it going to take?’” Sorrell recalls. Two jurors — McKay, who is white, and McCloud, who is black — say they believe racial tensions simmered under the surface. Others, including Sorrell, a 29-year-old black woman, say race wasn’t an issue. But there were other issues. During trial, one juror sent a note to the judge complaining another was threatening to hang the panel. One juror made an aborted attempt to notify the judge that two jurors were sleeping during testimony. The tattling took its toll. “I don’t know if I want to see all of these people again,” McKay says. Overall, the jurors found the lawyers on both sides somewhat distracting. The three Assistant U.S. Attorneys who tried the case were boring and weren’t able to keep their attention, jurors say. Hardin was entertaining, jurors say, but ultimately unable to make his case. Notes juror Dumas, “The prosecution had their moments, but most of it was boring. They told too much about the accounting. Rusty had some good sayings. But it was ultimately nonpersuasive.” But despite the discord during deliberations and courtroom distractions, the panel reached its conclusion in a relatively analytical fashion. The process gave most members an opportunity to consider and participate, according to the seven jurors. Although defense lawyers are arguing the judge should overturn the verdict or grant a new trial, the jurors’ accounts show the system worked. “I’m glad that we took the extra time to deliberate. There’s no question in my mind that we did the right thing,” Schwab says. SOME LEVITY The 12 jurors got the case close to 9 p.m. on June 5, after the lawyers wrapped up lengthy arguments in the trial that began May 6. The jurors were tired, so they ate dinner and called it a day. But the next morning, they got to work, selecting Criner as foreman. Schwab says Criner, a professor of computer science at Texas Southern University in Houston, showed leadership during the trial. But the professor, later the lone holdout favoring acquittal, didn’t maintain universal popularity throughout the proceedings. “He talked down to us a lot. I had to remind him we were not his students,” Gallo recalls. As foreman, Criner helped the jurors establish (and write on a large sheet of paper pinned to the wall) rules of procedure. The guidelines forbade jurors from talking over each other or attacking each other personally. They were required to concentrate. “We had to be serious,” says Dumas, a 46-year-old engineer for an off-shore oil equipment company. Some jurors nevertheless found some levity during their breaks. Schwab, a slender pastry chef, eventually perfected an imitation of the broad-shouldered Hardin. Gallo mastered a mimic of prosecutor Andrew Weissmann, including his manner of bobbing his head. After establishing rules on the first day, the jurors decided to take a straw poll, according to the seven jurors. Going around the table, each member voiced the verdict he or she would support at that moment. Three jurors favored acquittal, three were ready to convict Andersen and the other six were undecided, making it clear to everyone they had a good bit of work ahead, according to Schwab, Dumas, McKay and Sorrell. “I was undecided. We knew we had a lot of evidence to get through,” Dumas says. “After watching the evidence at the trial, I thought they were innocent. They just didn’t start shredding. It was something they had been doing. I voted undecided,” Sorrell recalls. The foreman Criner voted for acquittal. Dumas recalls that Criner said, “You should not trust the government.” Criner says he was arguing he wanted to have much more evidence. In contrast, Gallo and two other jurors put themselves firmly in the conviction camp at that stage, say four jurors. Gallo says he favored conviction but remained somewhat undecided. An articulate, jovial manager for AirTran Airways in Houston, Gallo had shown some initiative earlier in the trial. He had, consulting with other jurors such as Dumas and alternate Lisa Wacker, attempted to send a note to Harmon to alert her to two other jurors allegedly snoozing — one a retired bus driver and another elderly man with back trouble. The retired driver, George McCloud, a 67-year-old pastor in training at his church, says, “I don’t have the impression that I was sleeping. I was trying to stay awake and follow the proceedings.” But, Gallo says, “We were concerned about their sleeping, and we were concerned about them being able to deliberate.” Gallo expressed those sentiments in a note that never made it to Harmon, although Willie Greason, the chief deputy of the U.S. Marshals Office in the Southern District of Texas, says the judge told him she had talked with a marshal regarding a prospective jury note about the alleged sleeping. Harmon declines comment, but Hardin expresses alarm about the possibility that such concerns about fellow panel members’ capabilities among the jurors never reached the judge or his team. “I am shocked to hear about it and will look into it,” Hardin, of Houston’s Rusty Hardin & Associates, said when he learned about the alleged incident. During deliberations, the two men who allegedly slept often sat at the end of the table, somewhat isolated, McKay says. MIXED REACTIONS After the straw poll on June 6, Criner read the 14-page jury instruction out loud, Dumas recalls, as the rest of them followed along on their own copies. The charge called for the jury to attempt to find beyond a reasonable doubt that an Andersen agent acting within the scope of his job induced or attempted to induce someone to “alter, destroy, mutilate, or conceal an object” to ” subvert, undermine or impede the fact-finding ability of an official proceeding.” Knowing they were far apart, the jurors spent the next few days poring over the voluminous documents in the case. One juror, a quiet engineer who was not reached for this story, created visual aids to help himself and others evaluate the case. Despite his reticent demeanor, the juror commanded the respect of other jurors. “He and I talked a lot, and he listened a lot,” Criner says. “He was our rock,” Gallo says. Specifically, the juror, a man with a gray, balding pate who wore a suit and tie to court every day, crafted a flip chart with five pages bearing the name of a “potential corrupt persuader.” According to the judge’s charge, the panel was supposed to determine whether an agent of Andersen engaged in a “non-coercive attempt to induce another person to engage in certain conduct.” Specifically, the jurors were supposed to find someone who had intended to subvert, undermine or impede the fact-finding ability of the Securities and Exchange Commission. On the engineer’s chart were Andersen partners David Duncan, the lead auditor on the Enron account; Roger Willard and Thomas Bauer, other partners on the account; Michael Odom, a practice director in Houston; and in-house lawyer Nancy Temple. Jurors would suggest evidence that supported the characterization of any of those individuals as “corrupt persuaders,” and the engineer would add it to his flip chart. “Bauer and Willard got very little consideration,” Schwab recalls. Jurors had mixed reactions to the other three Andersen partners. Of those three, only Duncan testified. One juror — one of the two whose alleged sleeping had concerned Gallo — thought Duncan was actually on trial, according to five jurors’ accounts. Schwab says the juror, an elderly man, came in one morning to deliberations and expressed his worries. “‘I slept on David Duncan last night and I was worried about his kids if he goes to jail,’” Schwab recalls him saying. Under cross-examination, as Hardin attempted to convince jurors that Duncan had been pressured to plead guilty to obstruction of justice, Duncan talked about his three young daughters. Other jurors found Duncan likeable but unpersuasive and impeachable. They questioned whether he had agreed to testify for the government because he feared he would be charged with worse crimes. “He did harm to the government’s case. He brought too much baggage,” says Schwab. Schwab says he became convinced Duncan was guilty. The paper trail of when the Andersen partner received notice of the SEC investigation and how he responded were enough to make the government’s case without his testimony, Schwab says. Dumas expressed similar sentiments about Duncan: “I got the impression that he talked himself into it. He seemed kind of scripted.” “It just didn’t add up on David,” McCloud says. McKay, who works at a jewelry store, says Duncan “backfired on the government.” She notes, “To this day, I don’t think David Duncan thinks he’s guilty. I think he is just trying to serve the shortest sentence he could.” At least two of the Andersen employees on the engineer’s flip chart did seem to have the profile of a corrupt persuader, several jurors say. Ultimately, Criner told reporters shortly after the jurors issued their verdict that it came down to that single e-mail from in-house lawyer Temple to Duncan about Enron’s earnings release. In an e-mail on Oct. 16, 2001, Temple asked Duncan to remove her name from an Andersen internal memo about Enron’s earnings release detailing the disagreement between Andersen and Enron over the use of “non-recurring” to describe a $1 billion charge. Criner said it was that memo that convinced him Temple intended to keep information from the SEC. “It became clear that she knew the SEC was going to look into it,” Schwab says about Temple. But Temple wasn’t the only corrupt persuader for other jurors. Dumas focused on Odom. Odom didn’t testify, but prosecutors showed jurors a videotape of a training session he gave on Oct. 10, 2001, during which he talked about the need to follow the firm’s document retention and destruction policy. In the video, Odom said, “If it’s destroyed in the course of the normal policy and litigation is filed the next day, that’s great.” Odom also forwarded to Duncan an Oct. 12, 2001, e-mail from Temple reminding him of the firm’s document policy. Dumas believes the combination of that evidence is enough to convince him Odom is another corrupt persuader. FINALLY UNANIMOUS By June 10, many of the jurors, including Dumas, had decided they were ready to convict. But there were still hold-outs, most prominently Criner. “It was becoming apparent that we ought to send a note out to the judge. The longer we waited going out, the longer we were going to have to wait going back in,” Dumas says. Although he and Gallo wanted to send the note that day, they agreed to wait because of resistance by Criner and others. “For the next couple days, it got kind of quiet,” Dumas recalls. By the end of the day on June 12, several jurors insisted that Criner send a note to Harmon to tell her they were deadlocked. After disagreeing over the wording, the jury finally sent a note saying, “We are not able to reach a unanimous verdict.” Harmon brought the jury back into the courtroom, and she told the panel to continue to try to reach a verdict, but not to give up their “conscientious conviction.” “She brought us out there and talked to us in front of God and everybody,” recalls Gallo. “She said exactly what we expected. We all expected to get our butts kicked a little bit,” Schwab recalls. “It began to get very intensive after that,” Criner says. One of the jurors was so upset, two other jurors say he broke down in tears. He was concerned that some of the jurors weren’t abiding by the rule that required everyone to let others speak uninterrupted. Criner’s insistence on Andersen’s acquittal was beginning to wear on those jurors who supported conviction. Asked why he held out for so long, Criner says, “I saw a lot of circumstantial stuff. I certainly didn’t trust a witness who had made a deal with the government.” Criner says others were pressuring him, but he says, “I’m a strong guy.” Gallo remembers, “We were focused on convincing Oscar that 11 people were right.” At one point, McKay says she even asked him if he was intending to write a book. Since the verdict, Criner said he has it in mind. Sorrell had her own reasons to prod Criner to change his mind. Her uncle was getting married on June 15. She was a bridesmaid and the trial had kept her from getting fitted for her dress. Beyond that, she expected to wear open-toe shoes and needed a pedicure, she says. The day after receiving the Allen charge from Harmon, the jurors sent a flurry of notes, including one asking if individual jurors can believe different Andersen agents acted knowingly and with a corrupt intent. But even before receiving the answer to that question — Harmon said individual jurors could differ on that point — Criner began to change his mind. He said he realized that Temple could have altered a document, rather than just destroy it, and that would have fit into the definitions provided as necessary for conviction in the jury charge. McKay credits the quiet engineer for persuading Criner. “He brought Oscar around,” she says. By late in the afternoon on June 14, Criner told his fellow jurors he would sleep on it that night, but he planned first thing in the morning to send a note to the judge telling her they unanimously agreed on conviction. At the hotel that night, Sorrell says she cried with worry that Criner would change his mind and she would miss the wedding. But her worries were unfounded. By noon the jury was released and some members had chatted with lawyers on both sides. Robinson, Criner, Gallo and Schwab hung around for a while to talk with reporters. Sorrell says she said a prayer before they left the jury room asking everyone to forget the squabbles. She says: “There were times in there when we wanted to scream. But we made a good decision. It was all based on the facts.”

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