Juror No. 4 has been depicted in the press as a holdout for acquittal of former Tyco CEO L. Dennis Kozlowski and former finance chief Mark Swartz, who are accused of looting the company of $600 million and spending the money on lavish lifestyles.
"It is staggering, sir, to understand the venomous and outrageous statements made about this juror in that environment," said Charles Stillman, a lawyer for Swartz. He did not elaborate.
State Supreme Court Justice Michael Obus said he would consider the matter later. Obus rejected a motion for a mistrial Monday that was based on defense complaints that some news organizations had named the juror.
Meanwhile, jurors continued their deliberations Tuesday — the ninth day — after hearing a brief readback of testimony Swartz gave about a conversation he once had with Kozlowski. The jury will resume deliberations Wednesday morning.
On Monday afternoon, the panel had asked to see the memo that Swartz sent to Kozlowski about a company relocation plan.
CBS News Legal Analyst Andrew Cohen says he's not optimistic about a verdict in this case. "I think," says Cohen, "if this jury expresses one more time that it can't get together on any of these counts that this case goes to a mistrial."
Two of the lesser counts, falsifying business records, involve the alleged alteration of the company's New York and Florida relocation plans. Swartz allegedly added benefits to the plans, unbeknownst to the board, that favored both defendants.
Swartz and Kozlowski are charged with 32 counts of grand larceny, falsifying business records and violating state business laws. They each could face up to 30 years in prison if convicted.
The jurors also asked the judge to repeat some instructions on the charges of falsifying business records. The counts relate to the relocation plans.
The trial was thrown into turmoil last week when jurors told the judge that the atmosphere in the jury room had become "poisonous." A note to the judge said the source of the acrimony was a juror who "does not have an open mind" and had "stopped deliberating in a good faith."
Juror No. 4 became the object of intense scrutiny when some news organizations reported that she had made an "OK" gesture directed at the defense while walking to the jury box on Friday.
The New York Post featured a sketch on its Saturday cover depicting her making a clear "OK" gesture. It called her a "paranoid socialite" and "batty blueblood."
Yet what gesture Juror No. 4 made, or whether she intended to make a gesture at all, was still in dispute. An Associated Press reporter witnessed the gesture but did not interpret it as an "OK" sign.
Defense lawyers said they had not seen it. Prosecutors also told reporters they had not seen it, and the defense claimed prosecutors were only aware of it because they'd been alerted by reporters.
Obus said Monday he had spoken with the juror, a 79-year-old woman, and determined that she could continue to deliberate properly.
"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," the judge said.
When the jurors returned to the courtroom, Obus told them to let him know "if at any time any of you feel that the deliberations cannot continue properly for whatever reason."
The jurors also asked Monday for all exhibits related to apartments in 1 Central Park West, a tower owned by Donald Trump, for which Swartz put down deposits that the company later wrote off as expenses.
Earlier Monday, the jury repeated its examination of another grand larceny count against both defendants, concerning a $20 million finder's fee paid to a company board member and the conglomerate's relocation plans.
Frank E. Walsh Jr. convinced his fellow board members to approve a proposal, championed by Kozlowski, for acquiring a company called CIT. After initially resisting, Kozlowski arranged payment of the finder's fee demanded by Walsh, testimony showed.
The board later demanded that Walsh return the money, and he refused. He was prosecuted, and that investigation led to the trial of Kozlowski and Swartz.