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GWEN IFILL: The numbers alone are staggering: Former Tyco executives Dennis Kozlowski and Mark Swartz are accused of stealing $600 million from the company they ran; their trial has cost another $12 million; and there have been almost 50 witnesses and more than 700 exhibits on view during the six-month trial.
Now, it reportedly all comes down to another set of numbers: 11-1, as the jury deciding 32 counts of guilt or innocence struggles against deadlock in this high-profile corporate corruption trial. Andrew Ross Sorkin has been in the courtroom covering the trial for The New York Times. Welcome, Andrew.
ANDREW ROSS SORKIN: Welcome. How are you?
GWEN IFILL: I’m just great. The eighth day of this trial now, what’s taking the jurors so long, do we think?
ANDREW ROSS SORKIN: Well, clearly this juror, potentially someone called her the rogue juror or the granny juror, she’s juror number four, she’s a 79-year-old retired school teacher and former lawyer, and at least up until last Friday appeared to be a holdout, ready to acquit on all 32 charges, and as a result appeared to be shutting down the process. This is the same juror who you may have read is the one who gave this kind of bizarre “okay” sign to the defense table on Friday that caused all the ruckus in the press over the weekend.
GWEN IFILL: There was some dispute about exactly what happened. You were in the courtroom. Did it look that she was signaling some sort of sign of approval to the defense table? What was she doing?
ANDREW ROSS SORKIN: I have to say that’s what it looked like. It was a very bizarre kind of dramatic moment, we all sat there and said “Did you see that?” You know, it was a little confusing. She kind of had this “okay” sign going up near her hair as she walked past the defense table and then kind of moved closer to the prosecution’s table, she kind of grazed her head as if to kind, as it appeared at least to camouflage it. Obviously what exactly she meant to be doing we will never know, or we won’t know at least until she says something about it after the trial. But it did raise a bit of a ruckus in the courtroom.
GWEN IFILL: The very least we do know what is the jury has said and they have sent out these numbers talking about the poisonous atmosphere in the deliberations and they’ve talked about how they couldn’t possibly reach agreement because of one holdout juror. We’re assuming it’s the juror you were describing. Why not a mistrial today then?
ANDREW ROSS SORKIN: Well, that’s really — it’s actually very interesting. I think at this point the judge, you know, has a lot at stake here, it’s a lot of people have committed a lot of time and resources. It’s six months through, and he said, listen, we need to keep going with this. The media attention, the fact that juror number four was in fact identified by some of the media over the weekend created some disturbance, but he said we can’t focus on what’s going on outside of the courtroom.
The juror in fact was interviewed by the judge today and said she thought she could keep going and would do that in good faith. And apparently in some form, it at least it looks like a deadlock may have been broken at least for now as they go through the 32 charges.
GWEN IFILL: And for the record, jurors who are involved in a current sitting case usually are not identified in the news media.
ANDREW ROSS SORKIN: Absolutely. This was a very interesting issue. The Wall Street Journal put the name of the juror on their Web site on Friday afternoon, and then the New York Post put a big story on the cover of their paper on Saturday. We at the New York Times and a lot of other news organizations chose not to, but obviously it was a controversial decision, and we’re all going to see how this plays out.
GWEN IFILL: Is there any fear or did the judge express in his comments today any concern that this juror may now be subject because she’s been identified to any outside influence or coercion?
ANDREW ROSS SORKIN: Well, that was the issue. In fact, I should say he did admonish the media who were in the gallery and said, “You shall not be contacting these jurors, you shall not be going near these jurors.” And in fact, we have heard that there was in chambers this morning juror number four actually came forward and said she had got an, I don’t know if you want to describe it as a crank phone call, but a call from an anonymous person who asked her, “What, have you been paid off or what have you?” So obviously there is the implication that you could be influenced by these outside forces and that’s what he’s trying to avoid.
GWEN IFILL: If the jurors are now back to deliberating and I gather they send some messages out to judge today which indicated they were back at the table –
ANDREW ROSS SORKIN: They did.
GWEN IFILL: — at least speaking to one another. What is it that they now have to grapple with first?
ANDREW ROSS SORKIN: All sorts, grand larceny, securities fraud, conspiracy, and there’s a lot of conflicting testimony. The prosecutors spent almost four months prosecuting this case with some 30-odd witnesses and the defense only had one, which was Mark Swartz.
Dennis Kozlowski, the head of Tyco, never took the stand — so Mark Swartz’s testimony against all of these other folks who said for the most part that all of these payments were not approved. There is some conflicting testimony, there was an auditor who came forward and said we knew about this, it was in the documents, in the records, the board knew, but I have to say having sat there myself it’s just been quite a confusing little ride.
GWEN IFILL: The jury has to decide whether these two actually had an intent to commit a crime, not just whether they may have profited from this behavior, but whether they intended to do wrong, is that correct?
ANDREW ROSS SORKIN: Well, that’s the big issue that’s in fact the big issue for apparently juror number four. There were notes that indicated they were questioning what was required for criminal intent and indeed in this case a juror has to believe at the time that these payments were made or authorized or however they got the money, that Mr. Kozlowski and Mr. Swartz were doing it with the intent to do wrong, that they knew what they were doing was wrong. And if you don’t believe that, you can’t convict them.
What’s sort of interesting about that, though, and on the flip side, is that the prosecutors argued throughout that these both of these men had this kind of grand sense of entitlement. So that in some ways has probably worked against the prosecution’s argument.
GWEN IFILL: So a mistrial is not off the table, it’s still a possibility. If that were to happen, what happens next?
ANDREW ROSS SORKIN: If there’s a mistrial it is almost guaranteed there will be a second trial. It is possible the prosecution will change their tactics. There has been an argument made by a lot of the spectators that the prosecution’s case, while quite strong was presented in a weaker than expected way. So it’s possible they could take the 32 charges and bring them down to 12.
Some have argued that it was confusing to the jurors with all these different counts, and really just focus on that. So I think you’ll see that. The flip side, by the way, is that if there is a conviction there is no question that this will be appealed and there are a lot of folks that think an appeal could win. You have these notes consistently telling the judge that the process has been compromised, the jury room is poisonous, and obviously the identification of the juror and possible outside influences. So either way I think this is not going to end anytime soon.
GWEN IFILL: Andrew Ross Sorkin, thank you very much.
ANDREW ROSS SORKIN: Thank you.