Tyco Mistrial

RAY SUAREZ:

After two weeks of deliberations, the high-profile case against former Tyco executives Dennis Kozlowksi and Mark Swartz ended today in a surprise, a mistrial. Kozlowksi, the former CEO of the company, and Swartz, the former chief financial officer, had been accused of illegally taking more than $600 million from the company. The judge declared the mistrial after saying that a juror had received a letter considered coercive or threatening.

Later, Manhattan District Attorney Robert Morgenthau said in a statement: "It is unfortunate that, after a six-month trial, the proceedings ended in a mistrial." Defense attorneys had asked for a mistrial. Charles Stillman defended Mark Swartz and had this reaction to the trial's strange end.

CHARLES STILLMAN:

We made this motion at the end of last week and, frankly, made it expecting to win it. We didn't win it. Things have occurred. Again, I have some knowledge that you all don't have. This is how it came out. So therefore we have to deal with the reality of life. I've been doing this for 40 years. I will tell you, if I piled up all the experiences top to bottom, I ain't seen nothing like this yet.

RAY SUAREZ:

More now on today's developments and the future of this case. It comes from New York Times reporter Andrew Ross Sorkin, who has been covering the case and was in the courtroom today, and Robert Mintz, a former assistant U.S. attorney who specialized in white-collar crime. He's now in private practice in New York.

Andrew Sorkin, you were in the courthouse earlier today when word came down. What was the reaction?

ANDREW ROSS SORKIN:

Well, there was an audible gasp in the courtroom this morning. We all were waiting for a verdict today. It was supposed to be D-Day for a verdict, and as everyone filled into the courtroom, there were court officers everywhere, we thought the judge was coming back and the jury was commenting back with a verdict. Instead, he gave us obviously a very different response, which was that he was under the impression that this jury could no longer go on and that there had to be a mistrial.

We understand in reporting in our papers tomorrow that juror No. 4, Ruth Jordan — this is the woman who flashed the supposed okay sign at the defense last week — came in this morning and told the judge in chambers that she had received a letter from an anonymous person who had put some form of pressure on her, and that she felt terrified in the words of one reporter briefed on it. The discussion chambers are sealed so we don't know exactly what went on there but that's pretty much what the day looked like.

RAY SUAREZ:

Once that decision was made, there was no going back, apparently.

ANDREW ROSS SORKIN:

Right.

RAY SUAREZ:

But it seems from the stories the jurors are telling now, they claim pretty close before this mistrial was called.

ANDREW ROSS SORKIN:

Exactly. We've spoke to many jurors this afternoon, the indication we had so far is that there would be some convictions. There are 32 different charges ranging from grand larceny to conspiracy to securities fraud, and it looked like they would have been convict at least on some of those charges and at least in some cases, on some of the grand larceny charges, which carry the longest sentencing. So in a way, this may be a victory for the defense this morning.

RAY SUAREZ:

But apparently even at the close of business yesterday, they were tantalizingly close to handing down some of those verdicts — the whole case not even getting to today's announcement, is that correct?

ANDREW ROSS SORKIN:

Right. We thought that they were going to come back yesterday. I think no question. We had been sitting there all week. Obviously the case looked like it was almost in peril last week when she made the motion and there were motions for mistrials and all of the reporting over the weekend. But I think that this letter this morning, combined with what happened over the weekend last weekend, apparently the juror was also contacted and in that case by what we are describing by a crank phone call, that she also reported. So I think between that and this — the snowball effect, the judge said we just really can't go on.

RAY SUAREZ:

Judge hasn't said much for the record but has he told the two sides when to reappear in his courtroom?

ANDREW ROSS SORKIN:

He has. The date is May 7. And we will see where it goes. It sounds like the problems would like to turn around and get this trial started all over again as soon as possible. That looks unlikely, simply because the judge has a lot on his calendar. He had expected this case to be over at Christmastime and has had to cancel close to — to three months worth of other trials which I expect he'll have to get to before this one starts up again.

RAY SUAREZ:

Robert Mintz, help us understand what a mistrial is. Is it like a draw, like the trial just ending has never happened?

ROBERT MINTZ:

A mistrial really means that the case is played to a draw. As if the trial never happened and both sides have to go back to square one and start again. The only difference is that in the instance of a mistrial, both sides have the advantage of having transcripts and the testimony from the prior trial. They both have a preview of what the other side's case was. Generally, this is something favorable to the defense. The defense likes to have a preview of all the government's witnesses, they like to have testimony that they can use as fodder for cross-examination during the second trial, and is generally a huge advantage to the defense to have a mistrial.

Here, I think we have a circumstance where the government will also benefit. The government's case here went on longer than it should have, it was unfocused at times. It rambled. Jurors seemed to be bored with some of the government's case. I think on the second time around we are going to see a much more focused case, one that is directly addressing the issue of criminal intent. It certainly is not going to take six months for the government to try this case a second time.

RAY SUAREZ:

When you talk about the prosecution putting on a different case this time, when they come back after a mistrial, does it have to be with the same charges, the same bill of particulars, the same indictment?

ROBERT MINTZ:

They are going to try essentially the same case. They have the ability to drop some charges. They have the ability to jettison some evidence. They have the ability to not put on some of the witnesses they put on before. It's really a retooling of the case — essentially the same case. We are not going to see anything dramatic in terms of the different presentation but I think we will see a streamline case, one that hones much more closely to the main theme of the government's case, one that does not have some of the sideshows that we saw go on during the first trial.

RAY SUAREZ:

Is it fair game to go to the jurors for both sides to go to the jurors and say, what worked? What didn't work? What were you close on before you found you couldn't deliberate any longer?

ROBERT MINTZ:

There have been jurors who have spoken to the media and you can be certain that both the defense and the government are going to listen very closely to what is said there. They are going to try to go to school on this first trial. They're going to try to learn what was successful. They're going to learn how jurors reacted to Mr. Swartz's testimony, for example, and both side sides are going to try to go at this a second time around with a better problems for the government and better defense for the defense team.

RAY SUAREZ:

Is contacting juror No. 4 in the way that apparently ended the trial a crime?

ROBERT MINTZ:

That's an interesting question. If she was actually threatened, then it certainly is a crime. If someone was simply voicing a strong concern, objecting to perhaps the fact that she was unwilling to convict these defendants, it may or may not be. It's something that the DA's office is going to look at closely. It depends exactly what was in the note and at this point it is unclear what exactly was said to her. What we do know is that it terrified her, affected her ability to continue with these deliberations and that is really what ultimately resulted in the mistrial that we saw today.

RAY SUAREZ:

Andrew Sorkin, did we know more about juror No. 4 than is usual in a trial of this kind?

ANDREW ROSS SORKIN:

Well, you know, I think we only knew more because she made this signal that we all took to be this "OK" sign in the direction of the defense. And as a result, the press went to town and it became a feeding frenzy. Her name came out in the public. That's something that typically does not happen. And I think that's by the way, how a letter could even get to her. So this is as extreme case, and I think it's probably different than most. I'm not sure we can take tremendous meaning away from this except to say I think it may have serious implications on the jury system going forward in America.

RAY SUAREZ:

Her photo was shown in the newspaper, she was seen on local news as you mentioned. Her name became public. Are those things just journalistic custom, or are there rules against doing that?

ANDREW ROSS SORKIN:

Really it's a journalistic invention not to name jurors. In this instance there were some newspapers and there were some TV reports that included her name. The Wall Street Journal was first newspaper to report her name and then New York Post rather, had a front page story cover on Saturday. That fed the frenzy. A lot of organizations chose not to simply because of the journalistic convention. I have to say the judge admonished the media many times throughout the past week about this very situation.

RAY SUAREZ:

Has she spoken to reporters at all yet?

ANDREW ROSS SORKIN:

Not yet, but we're hoping.

RAY SUAREZ:

Andrew Sorkin, Robert Mintz, thank you both.