Your point regarding the choice of charges may very well be correct. I suspect (and this is just a guess since I don't have the kind of information necessary to really know) that the DOJ thought that they could accomplish their goal (and they have even with the reversal) more easily with the charges they brought than with a complex RICO accounting case. I also suspect that the indictment was brought when and how it was because someone was pissed at how AA, as an entity, was acting or reacting to the ongoing investigation. It is unusual, though certainly not unheard of, for companies to be indicted except to provide a plea mechanism to protect individuals from prosecution. That is, usually, though not always, the company takes a dive on a plea so the individuals don't have to. Much more commonly, they go after the individuals and leave the company alone. Obviously, there were dynamics at play here that interfered with that scenario. Document destruction has some visceral appeal. In hindsight, they may have picked wrong. Realistically, I suspect that some thought that it would be an easy case to make under the circumstances and it may have been, but they clearly got greedy and started playing a little too fast and loose during trial. It was clearly not as easy as they expected. AA had some good lawyers and many cases get lost because one side or the other underestimates their opponent.
As to NACDL, it files amicus briefs in almost every criminal case heard at the SCOTUS. In reality, the amicus brief is written by a private lawyer for NACDL. I wish that NACDL had staff lawyers on hand to crank out such briefs, but the lawyers who write them are usually ones who are already interested in and have an intimate working knowledge of the issues. There is no doubt that had the SCOTUS affirmed the jury charge in Anderson, lawyers, businessmen, and citizens everywhere would have been at risk for following document destruction policies -- or even, potentially, for creating or advising a company to create one. I suspect that these policy issues were influential to some judges, even if they would have reached the same ultimate conclusion anyway, in their decision to join Rehnquist's opinion, which was unusually broad for him.
This will be an interesting case to look back at down the road, perhaps in 20 or so years, when retiring judges papers and experiences get released and published. One final thing, as a caveat: most of my suspicions about some of the background noise attendant to the AA case are no more than educated guesses and good be completely wrong.
Troy
Those who shoot from the hip usually end up just shooting themselves.
Plan the grub and grub the plan.
Where is the party tonight? Who is bringng the drinks?
