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Still Split, Tyco Jurors Will Recess for 2 Days

After telling the judge discussions were not 'respectful,' panelists on the 5-month-old case ask for a break.

March 27, 2004|Walter Hamilton | Times Staff Writer

NEW YORK — Jurors deciding the fate of two former Tyco International Ltd. executives said Friday that their bitter stalemate had hardened, but they agreed to resume deliberations Monday in an effort to stave off a mistrial.

Jurors first revealed in notes to the judge Thursday a strident clash between what seems to be one juror holding out for acquittal and others who appear to be leaning toward conviction.

In a follow-up note Friday morning, they said an escalating personal conflict was blocking all meaningful discussion.

"This is a jury that has ceased to be able to conduct respectful, open-minded, good-faith deliberations," they wrote.

Outside the jury's presence, State Supreme Court Judge Michael Obus indicated that a mistrial was a possibility. But after a lunch break, the jurors sent another note, this time asking for permission to recess for the weekend and reconvene Monday. Obus immediately granted the request.

"On this, your wish is my command," Obus said, telling them to relax during their days off.

Former Tyco head L. Dennis Kozlowski and his onetime finance chief, Mark Swartz, are accused in a 32-count indictment of looting the company and its shareholders of $600 million through unauthorized payments and by pumping up Tyco stock under false pretenses.

The men, each of whom could face more than 25 years in prison if convicted, have pleaded not guilty. They contend that the payments were approved by the Tyco board.

The jurors' notes mark the latest turn in a bellwether corporate-crime trial that is now in its sixth month.

A hung jury would result in the second mistrial in a recent high-profile corporate case. A federal trial of former Silicon Valley investment banker Frank Quattrone on obstruction-of-justice charges ended in a mistrial in October.

The Tyco case has been characterized by long stretches of often monotonous testimony, but the tone shifted Thursday when the jurors sent three notes to Obus.

The first note said the "atmosphere in the jury room has turned poisonous." A follow-up missive that same day, which was written by the juror favoring acquittal, complained that the other jurors were unwilling to consider that the men might be innocent.

Obus rejected a defense motion for a mistrial and summoned the jury to the courtroom Friday morning, admonishing them to treat each other respectfully and to remain open-minded.

"It really isn't surprising that things might get heated, if not incendiary," Obus lectured the jurors. "If you feel you've done something you could apologize for, then apologize. If an apology is offered, accept it."

In an unusual twist, a female juror whom courtroom observers believe to be the lone holdout gave what some eyewitnesses described as an "OK" sign to the defense table Friday morning, indicating her support for them.

Obus later said he did not see any gesturing but was told about it by others. In his instruction to jurors, Obus warned them not to give any verbal or nonverbal signals of their feelings.

Attorneys said a gesture would be inappropriate, but would not qualify as juror misconduct. "Is it the sort of thing a juror is supposed to do? Obviously not," said David Gourevitch, a former Manhattan prosecutor who is not connected with the case. "Is it misconduct? I don't think so."

Even so, Gourevitch said he would not be surprised to see a mistrial declared. "What I hear is that there are two entrenched camps that hold different views, and things are getting very nasty," Gourevitch said.

But others said it was common for juries to bicker during such long cases. If jurors can set aside the quarreling, a majority can sway a holdout to reach a compromise verdict on at least some counts, said Mark Zauderer, a partner at Piper Rudnick in New York who has no stake in the trial.

"This does not seem like there's an ideological fault line among the [bulk of] the jurors," said Zauderer, who is heading a blue-ribbon commission studying the state's jury process.

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