Wednesday's tenth day of deliberations sees the jury not deliberating, at least not at the outset, but back in the courtroom, reports CBS News Correspondent Lou Miliano, re-hearing testimony about bonuses paid to the two defendants.
Jurors originally had requested the testimony by Mark Swartz, Tyco's former chief financial officer, last week. Then they asked for a delay, and on Thursday their deliberations suffered a rancorous collapse that threatened to cause a mistrial.
"If the defendants were optimistic late last week and early this week that they might get a mistrial they ought to be fairly pessimistic now that the jury is back deliberating again on the substance of the case," says CBSNews.com Legal Analyst Andrew Cohen. "That doesn't necessarily mean we'll see convictions here but it's not a good sign for Kozlowski and Swartz."
Readback of Swartz's testimony began Tuesday. The former CFO tells of conversations with L. Dennis Kozlowski, the electronics and medical supplies maker's former chief executive, about $37.5 million in forgiven loans and $72 million in bonuses they received.
The defense says all money and other benefits received by Kozlowski, 57, and Swartz, 43, were known to internal and external auditors and were approved by members of Tyco's board of directors.
"The jury was focusing Tuesday on some of the lesser charges against the men and that either means they've resolved the more serious grand larceny charge or that they have agreed to disagree on that and have moved on," says Cohen. "Either way, I think, it means we'll soon get a verdict, a partial verdict, or a hung jury in the case."
In the testimony jurors were to resume hearing Wednesday, Swartz says a Tyco board member asked him and Kozlowski to accept forgiveness of a total of $37.5 million in loans in partial payment of bonuses they were supposed to receive.
Swartz, the trial's only defense witness, testified that he and Kozlowski accepted the offer. He also said he and Kozlowski did nothing illegal and had received many Tyco benefits at informal board meetings at which no minutes were kept.
Prosecutors charge that secretly forgiven loans and multimillion-dollar bonus grabs were among the ways Kozlowski and Swartz stole $600 million from Tyco when they were running the company.
They say Swartz and Kozlowski stole $170 million to finance baronial lifestyles by taking unauthorized bonuses and abusing Tyco loan programs. They say the two netted another $430 million by pumping up Tyco stock prices and selling their shares at the inflated market rates from 1995 through 2002.
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.
Earlier Tuesday, a defense lawyer complained to State Supreme Court Justice Michael Obus that an intensely watched juror has been the subject of venomous attacks in Internet chat rooms.
Juror No. 4 has been depicted by some news media as a holdout for the defendants' acquittal. Some news media reported that on Friday the 79-year-old woman used her right index finger and thumb to make an "OK" gesture at the defense while walking to the jury box. Whether she made that gesture, or intended to gesture at all, was in dispute.
The judge said he would consider the Internet matter later.
Obus, so far, has denied several mistrial motions that were based on defense complaints some of the news media had divulged the 79-year-old woman's name.
"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.