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Tyco Mistrial: Blame The Media

This time, you really can blame the media for everything.

The six-month, multi-million-dollar trial of two former Tyco International executives ended in a mistrial Friday because two newspapers published the name of one of the jurors last weekend -- in the middle of deliberations -- and reported that she had made an "OK" gesture with her hand to defense attorneys in court.

Mix that tidbit in with hard news about problems in the jury room -- one juror described the atmosphere last week as "poisonous" -- and, surprise, surprise, the woman, known as "Juror No. 4," promptly became the target of the kind of vitriol you get these days when you don't get with the program.

She became fodder for Internet chat rooms. At least one yahoo called her and then, within 24 hours of the mistrial, she reportedly received some sort of coercive or threatening correspondence. You simply cannot have that in a criminal trial and so, despite heroic efforts, Supreme Court Justice Michael Obus was forced to call the whole thing off after all this time. The jurors were able to put aside their differences and deliberate like adults this week -- but the outside pressure on "Juror No. 4" made the process unworkable.

It's sad enough that such a monumental undertaking ends in such waste. It's even sadder when you consider the circumstances that brought about the waste. Did Juror No. 4 actually send an in-court signal to the defense? Some inside the courtroom that day say yes. Others say no. The judge didn't see the signal and neither, apparently, did the very lawyers who were supposed to be getting the "OK" sign from the elderly woman. Fairly ambiguous circumstances, wouldn't you say?

Certainly ambiguous enough to generate a few second thoughts about taking the extraordinary step of identifying a juror while she still is deliberating in a criminal trial. I mean, it's not like the woman stood up and court and declared her love for the defendants, Dennis Kozlowski and Mark Swartz. And if she truly wanted to signal the defense she could have picked up the telephone after court on any day and simply called over.

Several news organizations reported the hand gesture, but two publications -- the Wall Street Journal and the New York Post -- went further and identified Juror No. 4 by name.

Last week, the Post fronted the story with the headline: "Ms. Trial." The paper also labeled the juror "Batty Blueblood." Apparently, there is a dispute about which organization identified the woman first, but it doesn't really matter. As soon as she was identified, the case was doomed to end with a whimper like this.

And even if it had not ended with a mistrial, any guilty verdict would have been very susceptible to reversal on appeal.

But did Juror No. 4 do anything wrong?

Not according to the person in the best position to know. "There has been no finding that this juror has done anything wrong," Supreme Court Justice Michael Obus said after he reluctantly granted the mistrial. "A great disservice may have been done to her and her family."

In case you needed to be reminded, it isn't necessarily wrong to refuse to convict two people who offer a viable defense in a complex white-collar prosecution that lasts longer than your average war-crime prosecution. If Juror No. 4 indeed was the lone holdout for acquittal on all charges -- and we don't yet know that for sure -- that was her absolute right under the Constitution. And it doesn't mean that she was wrong and the other jurors were right.

For all we know, the woman that day may have just been brushing her face with her hand the way people do from time to time. After all the headlines last weekend, Judge Obus hauled her into his courtroom Monday and demanded an explanation. Whatever that explanation was, it satisfied the judge that Juror No. 4 was capable of performing her duties as a juror. If her responses were good enough for the judge, they are good enough for me.

So it's not Juror No. 4's fault that she was identified, then targeted. It wasn't the judge's fault. And it's not the fault of prosecutors or defense attorneys. In fact, I give the parties involved a lot of credit for keeping the trial together as long as they did. Without the benefit of all the transcripts from all the closed-door meetings that have taken place over the past two weeks, it's fair to say that everyone who was a part of the case did what they are supposed to do. What no one could have foreseen, however, was the impact the media had on the way deliberations were covered. The tail didn't just wag the dog; in this case, the tail killed the dog.

  • What does the mistrial mean to the defendants?

    It means only that they can rest easy for a few months until they are tried again. Kozlowski and Swartz no doubt will be back on trial again within a year and they also face massive civil lawsuits stemming from the allegations of corporate looting that are at the heart of the Tyco case. For them, the mistrial means more uncertainty and more stress and a lot more money shelled out to high-priced lawyers. One juror suggested Friday that the panel was close to reaching a guilty verdict on one or more of the charges against the men.

  • What does the mistrial mean to prosecutors?

    It means they get a second chance to make a first impression. Clearly, prosecutors miscalculated their case against the former Tyco kings. Clearly, the case was way too long and way too complex and put way too much pressure on the jurors before and during deliberations. If these prosecutors are smart, and I'm guessing they are, they will greatly simplify their case in Tyco II. It will be shorter, more succinct, include fewer charges and probably result in much happier jurors. Happy jurors usually translate into pro-prosecution jurors.

  • What does the mistrial mean to the media?

    This non-result result is terrible news to organizations that regularly cover the courts. The act of journalistic irresponsibility -- I've covered high-profile trials for seven years and have never seen a juror identified publicly mid-deliberations -- will be used by judges near and far to further limit public access to trials. Journalists as a group howled a few months ago when Martha Stewart's judge, U.S. District Judge Miriam Cedarbaum, kept the media almost entirely out of the jury selection process. The judge was overturned by the 2nd U.S. Circuit Court of Appeals, but you can bet that judges in upcoming high-profile cases will try the same thing and cite Tyco as a reason for doing so.

    The Tyco case thus will be to jury selection and coverage of jurors what the O.J. Simpson case was to cameras in courtrooms. It will make things an order of magnitude more difficult for responsible journalists to give the public a true sense of what is happening in our nation's courts. Free press? Absolutely. I'm all in favor. I'm also in favor of seeing the Wall Street Journal and the New York Post reimburse the state of New York, the two defendants, and all those jurors for all of the time and money and energy they have just wasted over nearly seven months of their lives. Or, better yet, I'm in favor of seeing the newspapers donate the proceeds of those days' sales to pay off those bills. I know that won't happen. But I hope those two publications have the decency not to complain the next time a judge closes out the media to the jury process in a high-profile trial.

    By Andrew Cohen