Judge rejects call for mistrial in Tyco case

By Miriam Hill
Knight Ridder News Service

NEW YORK — Like an unhappy family deciding to give togetherness another try, the jury in the Tyco trial continued deliberating yesterday, averting a mistrial in the high-profile corporate-fraud case.

The jurors ended the day without reaching a verdict. Former Tyco Chief Executive Officer L. Dennis Kozlowski and Chief Financial Officer Mark Swartz are charged with stealing $170 million in compensation not authorized by the board of directors, including $6,000 for a now infamous shower curtain.

They are also charged with illegally benefiting from $430 million in stock sales.

Lawyers for Kozlowski had asked Justice Michael Obus to declare a mistrial after a weekend of news stories focused on one juror. The stories, which focused on Juror No. 4, who is believed to be the only member of the jury arguing for acquittal, caused the defense to suggest that the juror might bend to the pressure to abandon her belief that the prosecution had not proved its case.

"Animosity toward this juror ... has intensified to an intolerable degree," Kozlowski lawyer Stephen Kaufman said.

Kaufman also noted that Juror No. 4 entered and left the jury room alone, leading him to believe she was isolated from the rest of the jurors. In a note last week, the jury told the judge that the negotiations had become "poisonous."

Several people in the courtroom Friday said they saw Juror No. 4 make the "OK" signal to the defense, although the judge did not see it and defense attorneys said reporters that they had spoken to did not see the alleged gesture. The New York Post, nevertheless, took the unusual step of running an artist's drawing of that juror with the headline "Ms. Trial." The Post also named her and called her a "batty blueblood."

Media outlets do not generally name jurors during trials to avoid putting pressure on them. But The Wall Street Journal online edition also named her. The New York Times did not, but noted where she lived and interviewed her doorman over the weekend, who noted that she had never tipped the staff.

Lawyers specializing in media law said there is no legal prohibition against naming a juror. Instead, they said, editors must decide whether it is in the public interest to do so.

"The real question is, do you or don't you identify the jurors, an issue reasonable editors can disagree on," Washington lawyer Lee Levine said.

Byron "Barney" Calame, an editor at the Wall Street Journal, cited the apparent gesture made Friday as a factor in the paper's decision to name the juror. "We regard what Juror No. 4 did as a very public and very unusual act, and that made it newsworthy," he said.

Col Allan, editor of the New York Post, said in a written statement: "By her extraordinary behavior — signaling her thoughts to the defendant — she created public interest in her identity."

Lawyers said, however, that judges have a responsibility to protect defendants' rights and to bar the media or anyone else from interfering with the process by making contact with jurors while they deliberate.

Obus said he had talked to Juror No. 4 and was confident she could continue to deliberate fairly.

"We cannot let what is published in the newspaper determine what happens here," Obus ruled. Juror No. 4 had assured him that she could continue to deliberate "in good conscience," Obus said. "Obviously, she's a very independent woman."

As the judge spoke, Juror No. 4 looked at him and appeared to nod in agreement.

Obus' decision surprised the packed courtroom, many of them reporters who had shown up assuming that the judge would declare a mistrial. On Friday, Obus himself had said he did not expect the trial to continue.

Shortly after he made that comment, however, the jury sent him a note saying they wanted to go home for the weekend.

Yesterday, they returned to court and said they wanted to keep deliberating, despite having said previously that the discussions had grown so negative that they did not think they could continue. Obus noted that the jurors had devoted six months of their lives, some of them at great personal cost, to the trial.

Duke University law Professor James Cox said the judge's decision seemed reasonable.

"The juror's signal was clearly improper conduct, but you know, it's hard to think how that's going to be prejudicial," Cox said.

The Washington Post contributed to this report.