First Person: Indictments Can Kill

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On March 14, 2002, Arthur Andersen LLP was one of the largest and most powerful accounting firms in the world, with over 28,000 employees worldwide.

On that date an indictment was unsealed charging Andersen with criminal involvement in the destruction of documents of its client Enron. At a subsequent trial, Andersen was convicted.

On May 31, 2005, however, a unanimous Supreme Court reversed the conviction. The jury that convicted Andersen had been incorrectly instructed by the trial judge. He had told the jury that they could convict Andersen even if the documents had been destroyed pursuant to innocent company policy and those involved in the document destruction did not know that an investigation had been opened that prohibited the document destruction. Andersen was exonerated. The guilty verdict was expunged. Andersen was not guilty of a crime.

But it came too late for Arthur Andersen. The firm was already out of business, killed by the indictment. Even before the trial, its clients fled, and Andersen was forced to discontinue business. Once one of the so-called “Big Five” accounting firms, Arthur Andersen LLP is no more.

I am reminded of this when I think about the forgery case wending its way in a Tel Aviv courtroom in accordance with Israeli procedures that are likely to take years to conclude.

In an indictment dated December 29, 2004, five men were charged with conspiring to forge numerous extremely important Biblically related artifacts or to knowingly traffic in them. The case has been dubbed “the forgery trial of the century.” Included in the allegedly forged items are a limestone bone box inscribed “James, son of Joseph, brother of Jesus” and a small inscribed ivory pomegranate that may have come from Solomon’s Temple.

Last December, we posted a story on our Web site titled “Conspiracy of 5 Becomes Conspiracy of 4” when the case against one of the defendants was dismissed. More recently, the conspiracy of four became a conspiracy of two. The charges against another defendant were dismissed. A third defendant pleaded guilty to a minor charge unrelated to forgery and received a sentence of four months in jail. Now he, too, is out of the case.

The trial has been going on for over a year now. The government is still ploddingly presenting its case. So far, it has presented no evidence that the defendants forged the bone box inscription or the inscription on the ivory pomegranate.

As in the Andersen case, however, even an indictment can kill. You don’t necessarily need a conviction. One of the dismissed defendants was formerly the chief restorer at Jerusalem’s famed Israel Museum. Yes, he knows how to work with important ancient artifacts. He is an expert. I suppose if he were so inclined, he could forge something. Imagine, however, what it means to be accused of forgery. Imagine the effect on his private restoration business. Imagine the drain on his family (as well as the defendant himself) at the possibility of a conviction and a prison sentence. Imagine the legal expenses for a case in which the government lists 128 witnesses and that will take years to try.

One of the remaining defendants was once an area supervisor at a leading Israeli archaeological excavation; he is the author of half a dozen books on Biblical-period seals and seal impressions (bullae); he taught at Haifa University. No more, however—even though the trial has barely begun.

If the two remaining defendants are guilty, they should receive harsh sentences. Forgers and those who knowingly sell forgeries belong in one place: jail.

But a criminal indictment is a powerful instrument. It should not be used 087lightly. It requires prosecutorial discretion. No prosecution should be brought unless the government has a reasonable case. It remains a question whether prosecutorial discretion has been abused in this case.

On visits to Israel I often look for scholars who might argue that a particular item, say the inscribed bone box, is a forgery. But I can’t find them—even though the bone box inscription is widely regarded as a forgery. What I do find is scholars who have a feeling that it is a forgery, but they cannot support their “feeling” with evidence. I cannot find a single paleographer who will argue, on paleographical grounds, that the bone box inscription is a forgery. True, a petrologist at Tel Aviv University says it is a forgery based on an oxygen isotope test performed on the patina covering the box. But his conclusion is widely contradicted by other scientists.

What I am often told is, “Well, I really don’t know. Why not let the court decide? Then we will know.”

I’m not sure that is an adequate answer. The question is whether the government will be accused of misusing its prosecutorial power. It has already, in effect, admitted that it did not have a case against at least two of the defendants. Why, then, did it initially charge them?

And so far, little significant evidence has been introduced regarding the two remaining defendants. But it is too early in the trial—at this rate it will take many years to try—to tell. We must, indeed, wait and see. However, the government as well as the defendants are on trial in this case.

On March 14, 2002, Arthur Andersen LLP was one of the largest and most powerful accounting firms in the world, with over 28,000 employees worldwide. On that date an indictment was unsealed charging Andersen with criminal involvement in the destruction of documents of its client Enron. At a subsequent trial, Andersen was convicted. On May 31, 2005, however, a unanimous Supreme Court reversed the conviction. The jury that convicted Andersen had been incorrectly instructed by the trial judge. He had told the jury that they could convict Andersen even if the documents had been destroyed pursuant to innocent company […]