Andersen Judge to Consider Telling Jury About Witnesses Who Refused to Testify

Prosecutors in the Arthur Andersen trial sought on Saturday to have the jury consider whether three witnesses who chose not to testify had a role in inducing others to participate in the company's document shredding.

Those witnesses — a partner, a lawyer, and a manager for Andersen — invoked their Fifth Amendment right when called to testify by the prosecution. The jury was not present when they did so.

Assistant U.S. Attorney Sam Buell argued before U.S. District Judge Melinda Harmon that allowing the prosecution to identify the three witnesses to the jury would answer a challenge made by Andersen attorney Rusty Hardin to reveal the "corrupt persuaders" who enforced the Anderson document retention policy.

The phrase "corrupt persuaders" comes from the section of obstruction law that Andersen is accused of violating. That law states that anyone who "corruptly persuades another person" to "alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding" is guilty of a federal crime.

Specifically, prosecutors have alleged that Andersen shredded documents and erased electronic records relating to Enron during the Securities and Exchange Commission investigation into the bankrupt energy company. Buell argued Saturday that the three witnesses who would not testify are those guilty of the corrupt persuasion mentioned in the statute.

The three witnesses in question are partner Thomas Bauer, who was on the company's Enron audit team; in-house lawyer Nancy Temple; and midlevel manager Kate Agnew, also on Andersen's Enron team.

An accountant who did testify said that Bauer stated the need to comply with the document retention policy. Temple sent an Oct. 12 e-mail to the Houston office suggesting that the Enron team be reminded of the policy.

The SEC's request to Andersen for documents related to Enron came on Oct. 17.

In all, the prosecution called 18 witnesses to testify; only Bauer, Temple, and Agnew invoked the fifth amendment. Buell's request seeks to notify the jury that three witnesses refused to testify.

Denis McInerny, another attorney for Andersen, opposed the request, saying that jurors would infer from the refusal that the Fifth Amendment was invoked and jurors would hold the refusal against Andersen "because these are Andersen people."

Additionally, McInerny pointed out the government could compel the three to testify by granting them immunity. As the Fifth Amendment protects an individual's right to self-incrimination, if the government gives a witness immunity from prosecution for the subject of the testimony, that witness cannot be incriminated and accordingly can not invoke the Fifth Amendment.

The obstruction of justice statute Andersen is accused of violating is 18 U.S.C. Sec. 1521(b).

Fox News' Adam Goldstein and the Associated Press contributed to this report.