THE RECENT criminal trial of Arthur Andersen LLP – on a single charge of corruptly persuading its employees to destroy documents – shaped up as an old fashioned Who Done It. The defense challenged the government to identify a so-called “corrupt persuader” – an Andersen representative whose conduct amounted to an effort by the accounting firm to impede the Securities and Exchange Commission. Defense counsel mocked the prosecutors’ search for a culpable Andersen agent, comparing their efforts to the book series “Where’s Waldo.”
In its counterattack, the government was not afraid of uncharted legal territory. First, during jury deliberations, the government won a controversial ruling that Andersen could be convicted even if jurors could not agree on which of its employees (among four posited by the government) obstructed justice on the firm’s behalf. One of the prosecutors said the ruling was necessary because “[o]therwise a [defendant] corporation would say, ‘Hey, you have to figure out who did it’.”[1]�
