Former Andersen Partner Likely Trial Turning Point

Prosecutors spent much of the first week of Arthur Andersen LLP's trial whetting jurors' appetites for an inside view of the firm's destruction of Enron-related documents from the man who pleaded guilty to leading the effort.

David B. Duncan, 43, is expected this week to provide details of an alleged major effort to shred documents and delete computer records last year when the Securities and Exchange Commission began investigating Enron's complex web of financial partnerships and accounting methods.

"Duncan is clearly the franchise player in the government's lineup," said Robert Mintz, a former federal prosecutor under Michael Chertoff, head of the Department of Justice's criminal division.

"This is the witness who can put to rest once and for all any lingering doubts the jury might have of the motivation behind the document destruction," said Mintz, now a lawyer in Newark, N.J.

Duncan was Andersen's lead partner on Enron's account, heading a staff of about 100 workers auditing the high-profile client's books. He was fired in January shortly after Andersen publicly acknowledged the shredding, and he pleaded guilty April 9 to obstruction for directing the shredding.

Duncan's plea agreement shattered the united front he and Andersen had maintained for months that neither committed a crime when documents were destroyed.

He had been expected to testify Thursday at Andersen's obstruction of justice trial after witnesses introduced jurors to the SEC's role in protecting investors and why Enron's finances became problematic in 2000-01. But the slow pace of questioning of other witnesses delayed his appearance.

Andersen lawyer Rusty Hardin said other witnesses could push Duncan's testimony to Tuesday at the earliest. Prosecutors have consistently declined to identify who they will question and when.

Duncan invoked his Fifth Amendment right against self-incrimination before Congress in January and at a deposition for shareholder lawsuits in February.

Mintz said both the prosecution and defense cases could rest on Duncan.

He said Duncan could lay out each phase of the alleged crime. Then prosecutors could question other witnesses who say they shredded documents and at whose instruction they did it.

On Hardin's side, "you have to try to paint Duncan in a corner and convince the jury he gave prosecutors what they wanted to hear to save his own skin. And you have to try to isolate his conduct to a few members of the partnership," Mintz said.

Jeffrey Parsons, a veteran defense attorney in antitrust, business fraud and oil and gas securities cases, said the prosecution likely will trumpet Duncan's admitted guilt.

Duncan's plea agreement could prove problematic, he said. Duncan's sentencing is Aug. 26, and government recommendations that his punishment be more lenient than the maximum 10-year prison term could turn on whether prosecutors believe he has sufficiently cooperated with them, Parsons said.

U.S. District Judge Melinda Harmon last week quashed Hardin's subpoena ordering Duncan's attorneys to give the defense copies of their notes of Duncan's meetings with prosecutors in the months leading to his plea.

Hardin already had lost a battle to obtain similar notes from congressional investigators' interviews with Duncan.