Tyco Case Turmoil

Tyco chief financial officer Mark Swartz (left, March 29, 2004) and Tyco's former CEO, L. Dennis Kozlowski (March 26, 2004).
AP
Lawyers for former Tyco International CEO L. Dennis Kozlowski asked for a mistrial Monday, suggesting that media reports and other jurors have placed intense pressure on a single juror who is apparently holding out for an acquittal.

Lawyer Stephen Kaufman showed the judge the front page of Saturday's edition of the New York Post, which bore a sketch of a juror and called her "Ms. Trial" in large type. Inside, the paper identified her by name and called her a "paranoid socialite" and "batty blueblood."

State Supreme Court Justice Michael Obus said he would consider the mistrial request, which the prosecution opposed, and rule later. The jury was not present in the courtroom.

The juror, No. 4 on the panel, 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. The gesture was depicted on the cover of the Post as a clear "OK" signal.

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

Assistant District Attorney Marc Scholl pointed out that the judge has repeatedly urged jurors to stay away from media coverage of the case. He said it was mere speculation to suggest the jury had disobeyed those instructions.

"The law presumes that the jurors will follow the court's instructions," he said.

Notes from the jury to the judge have said the jury room atmosphere is "poisonous" and have suggested a single juror believes the government has not met its burden of proof for conviction.

In addition, Kaufman said, the other 11 jurors have been seen walking out of the jury room together, with the lone juror in question walking out later by herself.

"This is the context in which the Post's prejudicial front page has exploded into this jury's deliberations," Kaufman said. "What was a poisonous atmosphere on Thursday must now be lethal."

Kaufman also cited media comments by an alternate juror in the case that suggested other jurors were hostile toward juror No. 4. The Wall Street Journal also identified the juror by name.

Kozlowski and former Tyco finance chief Mark Swartz are accused of looting the conglomerate of $600 million.

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.

According to The New York Times, the jury seems split over the question of criminal intent: whether Kozlowski and Swartz knew they were breaking the law when they got huge bonuses, loans and other perks from the Tyco board.

The juror depicted in news accounts is a 79-year-old retiree from Manhattan. The woman worked as a teacher before receiving a law degree from New York University in her late 50s, going on to practice for several years in New York.

The defense 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.

So far, the judge has denied four defense motions for a mistrial. The lawyers made the mistrial as jurors returned for their eighth day of deliberations in the case.

"Unless someone drastically changes their mind, I think the jury's going to come back the way it left: in turmoil," says CBS News Legal Analyst Andrew Cohen.

"If the media knows that one juror is a holdout," says Cohen, "then the whole deliberative process has been compromised in such a way that the judge simply can't allow."

CBS News Correspondent Kelly Cobiella reports even if the judge does declare a mistrial because of a hung jury, that is not expected to be the end of Kozlowski and Swartz's legal problems.

Prosecutors are likely to put them on trial a second time, or, offer the two men a plea bargain.