Internet Journal of Criminology
©
2011
ISSN 2045-6743 (Online)
www.internetjournalofcriminology.com 1
THE WRONGFUL CONVICTION OF
ARTHUR ANDERSEN LLC
By Michael E. Marotta
1
Abstract
The demise of the legal person Arthur Andersen LLC models the many miscarriages of
justice, wrongful convictions and subsequent exonerations of real persons. The case
shines a bright light into corners of the criminal justice system often ignored both by
the mass media as well as by many criminal justice professionals. This dissertation
provides a cross-section of the case.
1
Submitted as part fulfillment of Criminology 681: Miscarriages of Justice, Eastern Michigan University,
USA
Internet Journal of Criminology
©
2011
ISSN 2045-6743 (Online)
www.internetjournalofcriminology.com 2
Table of Contents
Executive Summary Page 3
Investigation, Trial and Appeal Page 6
Sources Page 12
Appendix A: Academic Journal Articles
Appendix B: Mass Media Materials
Appendix C: Court Documents
Appendix D: Documents Relating to the History of Arthur Andersen
Internet Journal of Criminology
©
2011
ISSN 2045-6743 (Online)
www.internetjournalofcriminology.com 3
Executive Summary
The demise of the legal person Arthur Andersen LLC models the man y miscarriages of
justice, wrongful convictions and subsequent exonerations of real persons. The case
shines a bright light into corners of the criminal justice system often ignored both by the
mass media as well as by many criminal justice professionals. The exuberance of
enforcement authorities, ambitions of prosecutors, prejudices of the judge, witnesses who
recant, limitations of the jury and crusades by outsiders were capped by an overturned
conviction and an order for a new trial that did the defendant little good. Like a man in
prison who has suffered a stroke, and who cannot therefore participate in his court-ordered new trial, Arthur Andersen LLC exists today only as a shell. Entities spun off
from it are orphans who distanced themselves from their disgraced parent by changing
their names.
This portfolio provides a cross-section of the case, revealing its elements, though
without the depth they deserve. A book might not be enough. Two have been written
specifically about the Arthur Andersen case.
2
Many more – 50 to 100 – have been
written about Arthur Andersen‟s infamous client, Enron.
3
Specifically because the two
are so tightly bound in popular perception, it is important to separate them. They had
different origins, histories, and cultures. Both had tens of thousands of employees.
4
That
their employees (as well as partners and officers) shared vices and virtues is not
meaningful. Broad condemnations of “corporate greed” are as prejudiced as the equally
easy and fallacious claim that African Americans have a “culture of violence”
5
as
evidenced by the many news stories about violence in the African American community
and the disproportionate incarceration rate. Examining the facts in the case of The United
States versus Arthur Andersen LLC reveals that this was a miscarriage of justice.
Nothing else matters.
Finally, a tension exists between “street crime” and “suite crime.” Our common
assumptions about crime begin with interpersonal assaults. This is historic; and it crosses
cultures. Specificity of cultural context notwithstanding, harms come when one person
trespasses against another – and you know it when you see it. Much about white collar
crime has analogs to other kinds. A victim and a perpetrator must exist. A law must be
broken. Arrest and trial are the expected outcome – and plea-bargaining is common.
That said, the highly abstracted nature of the modern administrative regulation of
businesses is different than common law. First of all, few regulations begin as
2
Inside Arthur Andersen: Shifting Values, Unexpected Consequences by Susan E. Squires, Cynthia J.
Smith, Lorna McDougall, and William R. Yeack (Financial Times, 2003) and Final Accounting: Ambition,
Greed and the Fall of Arthur Andersen by Barbara Ley Toffler and Jennifer Reingold (Broadway Books,
2003).
3
The most recent search on Amazon reveals six new titles for 2009. Indicative of the marketability of the
Enron name, Herman Melville‟s classic Bartleby the Scrivener: A Tale of Wall-street (1853) has been
resissued for Kindle.
4
Enron peaked at 19,000 in early 2001 (or 20,000 according to Beth MacLean and Peter Elkind, Smartest
Guys in the Room: The Amazing Rise and Scandalous Fall of Enron, 2003), but started lay-offs reported
first as 4,000 then as 5,000 with no differentiation for those release d “temporarily” for a downturn in
revenues and those fired in the wake of the sacking of CEO Jeff Skilling. Arthur Andersen‟s rosters
likewise tallied 29,000 in the USA and 80,000 globally, by various accounts.
5
Debunked by Cao, Liqun., Adams, A., and Jensen, V. J. in “A test of the Black Subculture of Violence
Thesis: A Research Note,” Criminology, 35 (2), (1997), pp. 367-379.
Internet Journal of Criminology
©
2011
ISSN 2045-6743 (Online)
www.internetjournalofcriminology.com 4
legislation. Most are made by administrative bodies, in this case, the Securities and
Exchange Commission – which is empowered by Congress to make such rules and to
have them enforced as laws. These strictures are often arcane, difficult to understand,
cumbersome to obey and challenging to enforce. The first consideration is that “a
corporation can be both the perpetrator and the victim of a single course of criminal
conduct. In such cases, the criminal law may describe the corporation as either the
culpable defendant or the innocent victim. Both characterizations can be correct as a
matter of law (Michaels).” This specific point troubled the jury in the Arthur Anderson
case. In the middle of their deliberations, they queried the judge on this point – and the
judge excused herself to consider it. This was abstruse law.
Therefore, we must put aside the mass-mediated hyper-reality of white collar
crime, admit that we do not know the body of administrative law created by the Securities
and Exchange Commission, then favor the defendant with a presumption of innocence,
and examine the facts.
The Supreme Court of the United States overturned the conviction of Arthur
Andersen unanimously. Long before a new trial could be held, the company had
imploded. The key witness in the government case was David Duncan, an auditor for
Arthur Andersen working at Enron. Duncan was charged with obstruction of justice. He
pled guilty and agreed to testify for the prosecution. When the Supreme Court of the
United States overturned the conviction of Arthur Andersen, Duncan changed his plea to
not guilty. The government chose not to prosecute. With Arthur Andersen all but dead,
the government chose not to retry the case. For all of the disparities between street crime
and suite crime, those facts and others fit the pattern of a miscarriage of justice.
Finally, a word about sources and citations. This case garnered worldwide
attention for five years. There is no shortage of materials from the mass media. Many of
the stories were reprints from wire services. The Houston Chronicle had its own reporter
in the courtroom. The trial and convictions all played out in the wake of the 9/11
Terrorist Attacks and the subsequent invasions of Iraq and Afghanistan. Thus, while
there are numerically many news stories, none is more than cursory. The facts in the case
come from the court records.
Academic journals were disappointingly thin in their treatment of the case, though
as many as 100 alluded to it.
6
Efficacious peer reviewed academic journal articles appear
in Appendix A only as reference pointers, the title page and abstract along with the thesis
and conclusions if helpful. Much of the research was carried out electronically, as has
been the norm for over a decade. Therein is planted a mine field of ignorance. The
difference between presentations is stunning. The medium is the message. Online
resources do not provide ancillary graphics, such as editorial cartoons, around which the
stories flow. Lost also are related – and seemingly unrelated – features which nuance the
discursive space.
Most disturbing is the fluidity of online citations. One story, from the Houston
Chronicle, clearly reports events from on or about May 13-17, 2002, during the testimony
of prosecution witness David Duncan. When accessed online via the Factiva database
provided by our University librarian especially for this research project, the story
appeared with a dateline of Dec. 16, 2005 3:12 PM. Clearly, it had been updated, with
6
The list was culled to 94. The first and last page of those are in Appendix A along with references to
more cogent works.
Internet Journal of Criminology
©
2011
ISSN 2045-6743 (Online)
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the original dateline replaced, though the 2002 copyright remained. Others have the
same problem.
Internet Journal of Criminology
©
2011
ISSN 2045-6743 (Online)
www.internetjournalofcriminology.com 6
Investigation, Trial, and Appeal
From its founding on December 11, 1913, until its fall from grace, the Arthur Anderson
company had a hard-won reputation for impeccable honesty (Squires, et al, Toffler;
Previtts & Merino).
7
Arthur Andersen himself (1885-1947) came from an immigrant
Norwegian family. He began as an assistant to the comptroller of Fraser & Chalmers
(later Allis Chalmers) in Chicago. Educating himself at night, he was hired by Price
Waterhouse and, at 23, became the youngest certified public accountant in the state of
Illinois.
At that time, accountancy was just attempting to establish itself as a profession.
Practitioners were clustered in New York City. Oddly, perhaps, most could not be
certified or licensed in their state because they wer
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