- The Washington Times - Friday, March 26, 2004

NEW YORK (AP) — The judge in the corporate-looting trial of two former Tyco International Ltd. executives sent squabbling jurors home for the weekend yesterday, declining to declare a mistrial.

“I will not be granting a mistrial at this point,” state Supreme Court Justice Michael Obus told lawyers after sending the jury home. “We’ll see what happens on Monday.”

Earlier in the day, jurors reported that their deliberations were “irreparably compromised” by infighting. The judge asked them to reconsider over lunch, and the jurors later answered with a note asking that they be allowed to return Monday.

“In this, your wish is my command,” the judge said. He added: “Put this away for a while. Relax. Do whatever you can do safely over the weekend, and be back at 9:30 Monday morning.”

Yesterday was the seventh day of deliberations by the jury, which sat through nearly six months of testimony.

The jurors are weighing charges against former Tyco chief executive L. Dennis Kozlowski and former Chief Financial Officer Mark Swartz, who are accused of stealing $600 million from the conglomerate. The two are charged with taking unauthorized bonuses and abusing company loan programs and using the money to finance lavish lifestyles.

Before lunch, the judge had said he was not optimistic that the trial would continue next week.

In notes sent to the judge Thursday, the jurors had called the jury-room atmosphere “poisonous,” and said that “incendiary accusations” had been made among jurors. They said at least one juror felt persecuted.

Before sending the jury home, Judge Obus said lawyers had brought to his attention reports of a gesture made by one juror as she passed in front of lawyers on her way to the jury box earlier in the day. The gesture had been interpreted by some reporters as an “OK” sign. The judge acknowledged hearing about the gesture and said he would continue telling jurors they should consider nothing but the evidence in the case.

The judge also reminded the jurors yesterday that a readback of testimony that they had requested Thursday was still available if they wanted it.

The breakdown in deliberations began Thursday with three notes from the jury indicating it was mired in a “poisonous” atmosphere characterized by finger-pointing and heated exchanges.

Then yesterday, another note declared, “This jury’s ability to communicate and deliberate with an open mind is irreparably compromised.”

The divisions on the jury prompted defense attorneys to make three separate motions for a mistrial over two days. Judge Obus declined to grant any of them. One of the notes indicated the majority of the jury favored a conviction.

“One or more jurors … refuse to recognize the right of at least one juror to have a good-faith belief that the prosecution had not proved its case,” the note said.

Word of the animosity had seemed sudden. Earlier Thursday, the jurors had indicated that they were making progress in the complicated case.

Mr. Swartz, 43, and Mr. Kozlowski, 57, are charged with 32 counts of grand larceny, falsifying business records and violating state business laws. They face up to 30 years in prison if convicted. Mr. Kozlowski’s $6,000 shower curtain in a posh Fifth Avenue apartment and $2 million toga party made him a symbol of corporate greed and excess.

Tyco, which has about 270,000 employees and $36 billion in annual revenue, has operations headquarters in West Windsor, N.J., but is based in Bermuda. It owns the ADT home security business.

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