Arthur Anderson Conviction Reversed

Yes, the conviction of Arthur Anderson accounting firm has been reversed by the Supreme Court, with William Rehnquist of all people writing the majority opinion. Yes, that Rhenquist, who so frequently pooh poohs just about every defendant's claim of trial error. You see, for the rich, corporate and powerful, he's willing to look in every possible place to ensure that that the conviction was properly obtained, sorry if you're a poor minority. But, this is not the purpose of the post.

2 things come to mind here, but one caveat first. I really have no love for Arthur Anderson, and any of the things that they, or the rest of corporate America, pulled, while looting the country. In fact, I really detest the lawyers who played a role in the looting by telling the companies how much they could stretch the boundaries of legality and still get away with it (hopefully). This is really one of the joys of being a public defender - you don't ever have to advise people how to break the law, how much they can get away with, how to commit their crimes better or more legally. You get a case and the facts are there. You investigate it, you represent a person's position, but you do not become an advocate for their wrongdoing, only for their legal position. So many of these corporate lawyers stood there in the corporate boardrooms and became vehicles for immoral thievery - legal or not. But those are not my points, here they are.

1) Many have been saying that Arthur Anderson got off on a technicality (see here and here, for instance) - really, only a non-trial lawyer could ever say that. As anyone who has done a trial, especially a criminal trial, knows, the jury instructions are insturmental in the real determination of guilt or innocence. Absurd instructions that imply that just about anyone could be found guilty (as apparently existed in this case), will probably result in just about anyone being found guilty. The instructions are insturmental, because they assign the level of culpability a jury needs to find to convict, they determine the types of acts one must commit to be guilty, etc. For instance, if you are charged with murder in a car accident without drugs or alcohol (not impossible by the way), and the instructions say that any death at the hands of another constitutues murder, then you will likely be found guilty of murder, even if you did nothing wrong in causing the accident (as in if the victim caused the accident). The instructions are paramount. It's clear that you helped to cause someone's death, but does that make you a murderer? Does that mean if the case is reversed due to jury instructional error that you got off on a technicality? Of course not.

Point 2 - The Justice Department doesn't really care about the reversal because, from their perspective, the damage has been done already. Ditto the judge. In Anderson's case, the fact of the conviction, even reversed, destroyed the firm, which is what the prosecution wanted. And if the prosecution wanted it, then so did the judge.

An interesting dynamic takes place here. After there is a conviction, everyone just says "they've been convicted." In everyone's mind, the game's over. When the conviction gets reversed (which is very rare, by the way, at least for non corporate defendants), then everyone assumes that they got off on a technicality, just because the subject of jury instructions are so esoteric. So everyone says "well, they were guilty anyways." If they're ever retried (why bother now that the company's out of business), the presumption will be that they are probably guilty since they were previously convicted.

So, the attitude of the prosecution and judge are "get a conviction no matter what, that changes all burdens and presumptions to those of guilt, and that's really what matters."

Furthermore, the damage is done. The company's gone. In the case of defendants exonerated after a decade on death row, prosecutors have the same attitude - just get a conviction, we'll let the appeals courts sort out what happens after that, all that matters is that we can say "they're guilty."

That presumption follows people around for the rest of their lives (assuming they're so lucky to live much of those lives outside of jail), unless, of course, you're a right wing ideologue, in which case you can have convictions reversed and claim that this means you were innocent with impunity (see Oliver North and John Poindexter). Or, if you are a right winger, you can also claim that the search is illegal, even though you've spent your whole career railing against courts that are soft on crime for tossing out convictions of people for illegal searches and seizures (see Rush Limbaugh). Or you can pooh pooh the meaning of your non-violent drug use even though you've called for poor blacks to be incarcerated for the same (see Rush Limbaugh again). But I digress (I really couldn't resist those digs).