Tyco Jury's Titanic Struggle

People gather in the street after an earthquake in Port-au-Prince, Haiti, Tuesday, Jan. 12, 2010.
AP Photo/Jorge Cruz
Jurors in the Tyco International trial are back deliberating after the judge denied a request for a mistrial, calling such a move "inappropriate" once he met with an older juror who gained media prominence.

The jury begins a ninth day of deliberations on Tuesday.

Defendants L. Dennis Kozlowski, Tyco's former CEO, and Mark Swartz, the company's former chief financial officer, are accused in 32 counts of looting $600 million from the firm - money they say they earned legally.

Judge Michael Obus on Monday rejected a defense request for a mistrial, based on a furor over a lone juror's apparently holding out for acquittal. Obus told the courtroom he had spoken with the juror, a 79-year-old woman who has been identified in press reports, and determined she could continue to deliberate properly.

The juror, Obus said, told him "that nothing that has happened will, from her point of view, prevent her from deliberating in good conscience with the other jurors."

"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."

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."

Even if the judge does declare a mistrial, prosecutors are likely to try the Tyco defendants again. And if they are convicted - the problems with the jury are likely to be used as part of the basis for an appeal.

After the latest round of fireworks at the nearly six-month trial, the jury on Monday resumed its methodical examination of an improper $20 million fee contained in one of top counts, grand larceny, against Kozlowski and Swartz.

Juror No. 4 had become 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 "Ms. Trial," a "paranoid socialite" and "batty blueblood." The Wall Street Journal's Web site also identified her by name.

Yet exactly what gesture Juror No. 4 made, or whether she intended to make a gesture at all, was still in dispute.

Defense lawyers said they had never seen the gesture. Prosecutors also told reporters they hadn't seen it, and the defense claimed prosecutors were only aware of it because they'd been alerted by reporters. An Associated Press reporter witnessed the gesture but did not interpret it as an "OK" sign.

On Monday, while sitting in the jury box, the same juror repeatedly brushed at her hair, her fingers crooked. While walking out of the courtroom to resume deliberations, she brushed at her hair again, this time with her hand facing the judge.

Defense lawyer Stephen Kaufman, in his argument for a mistrial Monday, said: "As it was described to us, the alleged gesture looked nothing like what was depicted in the Post." But he added, "Avoiding the front page would have probably been impossible for any juror who left his or her home on Saturday."

He argued that the media — in addition to the other 11 jurors — had put unfair pressure on the juror.

Kaufman also cited media comments by an alternate juror in the case that suggested other jurors were hostile toward juror No. 4, and said, "What was a poisonous atmosphere on Thursday must now be lethal."

In arguing against the defense motion, Assistant District Attorney Marc Scholl noted the judge has repeatedly urged jurors to stay away from media coverage. "The law presumes that the jurors will follow the court's instructions," he said.

The jury's latest focus centered on evidence about a finder's fee paid to a company board member and the conglomerate's New York and Florida relocation plans.

Frank E. Walsh Jr. convinced his fellow Tyco board members to approve a proposal, championed by Kozlowski, for acquiring another company. After initially resisting, Kozlowski arranged payment of the $20 million finder's fee demanded by Walsh, testimony showed.

When the board later demanded that Walsh return the money, he left the boardroom, uttering the rejoinder, "Adios." He later was prosecuted, and that investigation led to the trial of Kozlowski and Swartz.

Later in the day, jurors sent a note asking to see a Swartz memo to Kozlowski about a board-approved Tyco relocation plan, and they asked the judge to repeat some instructions on the charge of falsifying business records.

"Much water has passed under the bridge since last Thursday, and we would like our recollections refreshed," the jurors wrote. Thursday was the day jurors first alerted the judge to a "poisonous" atmosphere in the jury room.

The jurors also asked on 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.