Tyco judge rejects defense mistrial request

Samuel Maull

Monday, March 29, 2004 | 11:21 a.m.

NEW YORK -- A judge declined to call a mistrial today in the trial of two former Tyco International executives, rejecting a defense motion contending that one juror apparently holding out for acquittal had been pressured by intense media coverage.

State Supreme Court Justice Michael Obus said he spoke privately with the juror, who was depicted on the cover of a New York newspaper over the weekend making an "OK" hand signal to the defense.

Obus said the juror told him "that nothing that has happened will, from her point of view, prevent her from deliberating in good conscience with the other jurors, and she has said she is prepared to do so and is doing so."

"It seems to me that it would be inappropriate to declare a mistrial when all 12 jurors, who have devoted six months of their lives to this trial, are prepared to continue," said Obus.

When the jurors returned to the courtroom, he told them to let him know "if at any time any of you feel that the deliberations cannot continue properly for whatever reason."

Lawyers for former Tyco chief executive L. Dennis Kozlowski and former finance chief Mark Swartz had said the media -- in addition to the other 11 jurors -- were putting unfair pressure on the juror. The lawyers suggested the lone juror, No. 4, was holding out for an acquittal.

Kozlowski and Swartz are accused of looting $600 million from the conglomerate. The trial has come to symbolize the corporate excesses of the late 1990s.

The defense has argued that the two men earned every dime and that the board of directors and the company's auditors knew about the compensation and never objected.

Last week, jurors indicated in a note that the atmosphere in the jury room had turned "poisonous" to the point of name-calling. While the prospect of a mistrial loomed Friday, jurors said they wanted to return today to continue deliberating.

They did just that, even sending a note this afternoon asking the judge to clarify the concept of "acting in concert," an element of one of the grand-larceny charges against Swartz.

In requesting the mistrial, defense lawyer Stephen Kaufman showed the judge the front page of Saturday's edition of the New York Post, which bore a sketch of the juror and called her "Ms. Trial" in large type. The paper identified her by name and called her a "paranoid socialite" and "batty blueblood." The Wall Street Journal also identified her by name.

Juror No. 4 made a hand motion on Friday as she passed in front of lawyers on her way to the jury box, bringing her hand near her face. Some in the courtroom interpreted it as an "OK" signal, although lawyers said they did not see it.

"As it was described to us, the alleged gesture looked nothing like what was depicted in the Post," Kaufman told the judge. But he added, "Avoiding the front page would have probably been impossible for any juror who left his or her home on Saturday."

The defendants in the 6-month-old trial are accused of stealing from the Bermuda-based conglomerate they once headed by hiding excessive pay packages from the company's board and by selling stock at inflated prices.

Much of the trial has been dominated by descriptions of flamboyant behavior and breakneck spending emblematic of the era of corporate scandal that produced a string of recent high-profile white-collar trials.

Tyco, which has about 270,000 employees and $36 billion in annual revenue, has operations headquarters in West Windsor, N.J., but is based in Bermuda. It owns the ADT home security business.