A prosecutor in Arthur Andersen LLP’s obstruction of justice trial said his team’s most critical witness is one who invoked her constitutional right not to testify.
David B. Duncan, the former partner fired shortly after the firm in January acknowledged mass shredding of Enron Corp.-related documents in Houston, had largely been anticipated to be the government’s cornerstone witness.
But Assistant US Attorney Sam Buell told U.S. District Judge Melinda Harmon during a hearing outside the jury’s presence on Friday that the government considered in-house Andersen lawyer Nancy Temple, not Duncan, to be its most critical witness.
Prosecutors declined to say who will testify on Monday after Duncan’s weeklong stint on the witness stand wrapped up Friday.
Temple, who sent an October 12 e-mail from the firm’s Chicago headquarters to those working in Houston which prosecutors allege prompted mass shredding of Enron-related documents, invoked her constitutional right against self-incrimination by mail on May 10. The trial started May 6.
Experts said if Buell’s comment is a signal that prosecutors are trying to forge a deal to gain her testimony, she could explain the motive of her e-mail.
”Duncan is important, but she’s much more central – she’s at the headquarters,” said Thomas Ajamie, a former prosecutor and securities lawyer at Schirrmeister Ajamie LLP in Houston. ”She directed the destruction of documents – according to her, based on policy.”
Robert Mintz, a former prosecutor under Michael Chertoff, head of the Department of Justice’s criminal division, said Buell’s team can present Duncan as the navigator to implicate other high-level Andersen partners.
”You don’t have to hear from anybody who actually shredded,” said Mintz, now a partner at McCarter & English in Newark, New Jersey. ”They will show other offices circulated that document retention policy with the knowledge that it would result in documents being destroyed.”
The firm is charged with obstruction for shredding documents and deleting computer records related to the failed energy firm’s audits to thwart a Securities and Exchange Commission probe into the energy company’s finances. Enron filed for bankruptcy protection last fall, becoming the country’s largest corporate failure.
Temple’s e-mail said it ”might be useful” to remind Andersen’s Enron audit team, which Duncan supervised, of the firm’s documentation and retention policy.
”It will be helpful to make sure that we have complied with the policy,” the message read.
Temple told Congress last January that she never counselled destruction or shredding of documents. Her attorney, Mark C. Hansen, has since said she did nothing wrong and she is following his advice to remain publicly silent.
Duncan said that on Oct. 23 he told his staff to comply with the policy -11 days after receiving Temple’s e-mail. He didn’t bluntly tell workers to destroy documents.
Duncan pleaded guilty April 9 to obstruction and agreed to cooperate with the Justice Department in exchange for prosecutor recommendations for mercy when he is sentenced Aug. 26. – Sapa-AP