When we last left Dennis Kozlowski and Mark Swartz, the two Tyco International defendants were thanking their lucky stars — and Juror No. 4, Ruth Jordan — for the mistrial she helped deliver for them. Now, nine months later, the Gang That Couldn't Shoot Straight, the same folks who brought us Tyco I, are ready to reprise their roles in the sequel. Call it, "Tyco II, the Return of the $6,000 Shower Curtain."
Or maybe not. The early word is that prosecutors have decided that they need to try to focus the jury's attention less on the defendants' monumental lavishness and more upon their allegedly overt criminal conduct.
If this is true, this is good news for prosecutors and also for the jurors who soon will be selected to serve in the grand larceny and conspiracy case. The first Tyco trial, which ended in chaos in April, lasted six months — an interminable period even for a complex capital murder case, let alone a white-collar story like the one in which Swartz and Kozlowski play infamous roles.
If Tyco II lasts nearly that long, prosecutors again will be in trouble — and they know it. So instead of focusing upon the defendants' spending habits, the Manhattan DA's office is suggesting that it is going to focus instead upon how that money came into Kozlowski's and Swartz's control in the first place. The case rests on allegations that the duo hid unauthorized bonuses, improperly forgave loans to themselves, and otherwise manipulated Tyco's books to steal hundreds of millions of dollars. The defendants say that the company's board approved their actions and that they deserved the enormous sums they received as compensation for their skill and hard work. And both sides can point to some legal developments over the past nine months that could and should help their chances at trial.
For prosecutors, the best gift they could have received came from the state court judge, Michael J. Obus, who dismissed the RICO charge against the defendants a few months ago. The charge — enterprise corruption — is typically used in organized crime cases and really had no business in this case anyway. It complicated Tyco I and in the end confused jurors. So how does its demise in Tyco II help prosecutors? After all, aren't more charges almost always good for the government? Not always. In this case, addition by subtraction will help prosecutors. By forcing prosecutors to narrow the focus of their case, Judge Obus has necessarily forced them to present a tighter, stronger, sharper case.
For the defendants, they can point to the acquittal last summer of former Tyco general counsel Mark A. Belnick, who jurors believed did not conspire with Kozlowski and Swartz to take a huge bonus. According to Sorkin's piece in the Times, "several jurors said after that trial that they did not believe directors from Tyco's board who testified that they had not approved the bonuses." You can bet that the defense attorneys in Tyco II have poured over the transcripts from the Belnick trial to figure out which questions were asked of those board members to elicit those opinions from jurors. And you can bet that those questions are going to be raised again on behalf of Kozlowski and Swartz.
Actually, the trial probably will be as much about the credibility of the former Tyco board as it is about the defendants themselves. If the jury believes the Tyco witnesses who say they knew nothing about the deals Kozlowski and Swartz were swinging, the defendants are in trouble. But if the jury believes that the Tyco Board knew about, or at least tacitly approved the conduct of the defendants, we could see an acquittal or two. Would Tyco witnesses have a motive to point fingers at Kozlowski and Swartz? You bet. Can the defense demonstrate that to the satisfaction of jurors? Who knows?
There is no way to make this trial into a short one. Prosecutors have to educate jurors about complicated business practices and then have witnesses explain to them why, in their view, Kozlowski and Swartz violated those business practices to the tune of 31 criminal counts. And it will take defense attorneys a long time, and much painful detail, to offer the sort of context and perspective. For both sides, then, at least to a certain extent, details matter. So don't look for a month-long trial. But don't look for a half-year-long trial, either. And the side that explains this bizarre world better to jurors probably will be the side that wins this case.
And that battle began even before jury selection. Kozlowski was able Sunday to get front-page treatment in the New York Times with a favorable (and often unwittingly hilarious) piece in which he asked the public (i.e. his potential jurors) not to consider him greedy. "I understand why a $6,000 shower curtain seems indefensible," Kozkowski told the Times' Andrew Ross Sorkin. "But I didn't even know about it. I just wasn't even aware of it. If somebody had come to me and said 'do you want to spend $6,000 on a shower curtain in that apartment?' I would have said, `absolutely not. Absolutely not.' "
We don't know if Sorkin asked Kozlowski about the $191,250 Persian rug, or the $113,750 antique clock, or the $77,000 grand piano or the $125,000 pair of French antique stools or the $15,000 umbrella stand or the $2,900 set of hangers or the $2,665 blue velvet pillow. And we don't know if Kozlowski would have offered the same Sgt. Shultz defense — "I know nothing. Nothing" — if asked. But we do know, after Tyco I, that prosecutors don't get a guaranteed conviction if they remind jurors that the corporate world often encourages such excess. It no longer shocks jurors, the way it once did, to learn that corporate executives often live more luxuriously extravagantly and than kings and queens.
So get ready for Tyco II. Prosecutors will tone it down and try to win with a simpler, more direct case. Defense attorneys will try to take advantage of the lessons they learned during the first trial and in the Belnick trial. And the judge will hope for a smooth trial that doesn't end up in shambles. Last April, Tyco I blew up after news organizations identified Jordan during deliberations (which spawned a series of threats against her). This April, we should have a clear sense of whether the lawyers, the judge, the witnesses, the defendants and the journalists covering the trial learned anything from that debacle.
By Andrew Cohen