Updated from 12:45 p.m. EST
Jurors concluded their eighth day of deliberations in the corporate corruption trial of two former
executives Monday after the judge in the case refused a request to declare a mistrial.
The jury will resume deliberations in the larceny and fraud trail Tuesday.
Earlier, New York State Supreme Court Justice Michael Obus refused to declare a mistrial in the proceedings, after talking to a female juror who appears to be the lone holdout for an acquittal in the 6-month-old proceeding.
Lawyers for Dennis Kozlowski, Tyco's former chief executive, and Mark Swartz, the company's former chief financial officer, had asked the judge to declare a mistrial in light of recent press coverage identifying the name of the apparent holdout juror.
"While we do not operate in a vacuum, we should not let what was published in the newspapers dictate what happens here," said Obus.
Despite the judge's ruling, most defense lawyers predict the judge ultimately will have no choice but to declare a hung jury. At this point, lawyers say, any conviction would stand a good chance of being overturned on appeal because it would appear the holdout juror was coerced into changing her mind.
"After all that has gone on, there would be a very strong argument on appeal" if there were a conviction, said Ira Lee Sorkin, a white-collar criminal defense lawyer and former federal prosecutor.
Speculation about the possibility of a mistrial surged this weekend after
The Wall Street Journal's
online edition and
The New York Post
published stories identifying the apparent holdout, a 79-year-old former school teacher and attorney. The woman, officially identified as juror No. 4, appears to be the only person in the 12-member panel who is willing to acquit the defendants on all counts, according to several notes the jury sent the judge.
The juror, who the
reported is a grandmother and lives on the Upper East Side of Manhattan, reportedly flashed an "OK" hand signal to the defendants on Friday.
A mistrial would be a blow to prosecutors working for Manhattan District Attorney Robert Morgenthau, who have accused the former Tyco executives of looting the company of $600 million. The trial focused on the lavish parties and bonuses the Tyco executives gave themselves, allegedly without board approval.
It would be the second mistrial that prosecutors in New York have suffered in the past year in a high-profile corporate corruption case. In October, a federal jury deadlocked in the obstruction of justice trial of former Credit Suisse First Boston investment banker Frank Quattrone. Federal prosecutors are preparing to retry Quattrone later this year.
The Tyco trial, despite the seriousness of the charges, was overshadowed by the Martha Stewart obstruction of justice trial, which took place in a federal courtroom a few blocks away. Stewart was convicted in that trial on all counts and is waiting to be sentenced this summer.
The irony is that many legal observers were predicting a mistrial in the Stewart case because they felt a jury would have a tougher time with some of the legal theories informing the case against her.
If there is a mistrial in Kozlowski and Swartz's case, most lawyers said there is little doubt the prosecutors would seek to retry them.
"I think they will try it again, especially if it's just one juror," said Susan Necheles, a white-collar defense lawyer. Necheles said it's rare to have a case end in a mistrial because one juror refuses to convict. She said most holdouts usually succumb to the will of their fellow jurors.
"Normally it's very hard for one juror to hang a jury," Necheles said. "You have to have a person of strong conviction."