One Angry Man

By Pete McEntegart

The dust has barely settled since the Tyco jury was sent home after a mistrial was declared. I was Juror No. 11, and I'm not at all sure how I feel. Numb, mostly. Disappointed. Angry. Could I really have just spent six months of my life on one of the signature corporate-fraud cases of the Wall Street bubble only to have the judge rule that it must be started again from scratch, like some do-over in a childhood kickball game? How did it come to this?

I wasn't sure what to expect back on Sept. 29 when potential jurors shuttled across lower Manhattan's Centre Street for jury selection. Along the way, one man asked a court officer if it was for the Kozlowski case. As a writer-reporter for SPORTS ILLUSTRATED, I wondered whether Atlanta Falcons tight end Brian Kozlowski had got into a legal scrape. Of course, the defendants were actually Dennis Kozlowski, the CEO of Tyco International, and ex-CFO Mark Swartz. Through a series of ever larger acquisitions throughout the '90s, the two built Tyco into a $36 billion conglomerate and made themselves exceedingly wealthy in the process.

I was shocked when I was placed on the panel, since I'd once worked as an investment banker. I didn't think the prosecution would want a juror who had been active on Wall Street during a go-go era and might well see nothing wrong with fat bonuses and lavish parties for men generating great wealth for the company. I certainly did not enter the case with a vendetta against the defendants, who were accused of taking tens of millions of dollars in unauthorized bonuses and essentially using Tyco assets as a giant piggy bank to fund their lavish lifestyles. In fact, their whole defense was that whatever money they took to fund their spending habits, they took with the board's knowledge and consent. They pleaded greedy but not guilty.

The prosecution's case was that these men lied to, cheated and stole from investors and directors. But prosecutors made a major miscalculation in spending so much time putting Kozlowski's excesses on trial. There were vivid accounts and video of the now famous $2 million bash Kozlowski threw in Sardinia for his wife that featured singer Jimmy Buffett and of his over-the-top purchases of items like $6,000 shower curtains. These seemed to be the activities that most titillated the media, judging by the marked jump in attendance on those days of testimony in an otherwise boring trial. But the jury spent almost no time during deliberations on those topics, and rightfully so. Much of what these two men did might have been unseemly, even unethical--but illegal beyond a reasonable doubt? Not to us. Instead, several jury members expressed disgust that the prosecution had wasted our time on all this. The case was supposed to last three months, but it stretched on and on, through 48 witnesses, more than 700 exhibits and 12,000-plus pages of testimony. Eventually, some jurors essentially tuned out, and, really, it was hard to blame them.

Lost amid all the white noise--much of it generated by two high-powered teams of talented defense lawyers--was damning evidence on a few specific charges. That, I realized, is why juries deliberate, to sift through mountains of evidence to find the facts. It was clear from the start of deliberations, more than two weeks ago, that this would be a difficult process. We were far from ready to vote on any of the charges (there were 24 against each defendant), but we went around the room that first day to express our general views. About half the panel essentially said the prosecution's case was baseless and the men weren't guilty of anything except perhaps bad taste in furnishings.

One juror offered her view that when things went to hell at Tyco, the Ivy League--educated, Waspy board of directors closed ranks and served up, in her words, the "Polack and the Jew" on a platter for a D.A. eager to make an example of somebody--anybody--for the corporate greed of the late '90s. (Never mind that there was no testimony about Kozlowski's roots or that Swartz is even Jewish.) That was the first indication that the soon-to-be-infamous Juror No. 4, Ruth Jordan, wasn't going to make our job any easier. Jordan, a law-school grad and former teacher, seemed to be at war with herself. Whenever she reached the precipice of a guilty vote on any count, she recoiled as if she had touched a hot stove. She was the one who allegedly flashed an O.K. signal to the defendants one day during deliberations as she left the court. The other jurors and I were unaware at the time that any such gesture had taken place.

On the other hand, a few jurors felt from the start that these guys were crooks. I expressed the view, shared by at least one fellow juror, that while I didn't buy much of the prosecution's case, I was troubled by the four bonuses charged as separate grand larcenies--totaling about $145 million--that the two divvied up. I felt fairly sure while listening to the testimony and absolutely certain after checking the financial documents during deliberations that three of those bonuses were illegal. They were supposed to be approved by the board's compensation committee; they were not. And the reasons offered by Swartz on the stand for why they were legitimate seemed to be fabrications, repeated over and over in a virtuoso performance.

If there was white noise in the courtroom, though, there was a real racket in the jury room. The first day, we instituted a policy of standing before speaking, because we were talking over one another. The stand-and-speak policy was only partly effective. Yet, slowly and surely, we did make progress by focusing especially on the bonuses and on a $20 million payment that the defendants made to a fellow director (Frank Walsh) without informing the rest of the board for six months.

The first bonus, taken in 1999 in the form of a loan forgiveness totaling $37.5 million for the executives, was in many ways the clearest. During a mind-numbing nine days on the stand, Swartz said the payment was necessary to correct for accounting changes brought about by two acquisitions. He even sketched out an elaborate calculation that he claimed explained the size of the payments. It didn't hold water. Their bonus formula had in fact been properly adjusted for the accounting changes. The calculation he performed on the stand? Complete nonsense, wrong on so many levels as to be laughable--if it hadn't proved so convincing initially to much of the jury.

As for the three other bonuses, Swartz stated repeatedly that they were early payouts from the annual-bonus formula and thus legitimate. When the payouts were made, however, the defendants sought a special accounting treatment for the bonuses as "direct and incremental." The justifications for such a classification included declaring that they were specifically not early payouts of the annual-bonus plan. In other words, they were just another helping of remuneration. Swartz signed memos at the time stating exactly that. On the stand, his explanation was the exact opposite, and when confronted about the contradiction he performed a dizzying tap dance. The fourth bonus, however, had been approved after the fact by the compensation committee, which did raise reasonable doubt.

After about a week, all the jurors but one (yes, No. 4) seemed ready to convict on the bogus-bonus charges. That was when the jury broke down and one juror, speaking for most of us, sent a letter to the judge about the "poisonous" atmosphere in the room. Charges of closed-mindedness and even corruption were being hurled about the room like spitballs. Eleven of us had become convinced that the 12th juror would never agree to a guilty verdict on any count, no matter how compelling the evidence. We saw no reason to continue under such circumstances and no plausible benefit in doing so. For two days, we practically begged the judge to declare a mistrial due to a hung jury. Miraculously, on the following Monday we seemed to have a breakthrough. Jordan said she had had a change of heart and believed that her view of reasonable doubt was perhaps extreme. There was skepticism about her sudden turnabout. We were worried that she was giving in to the group without actually being convinced by the evidence. We didn't want that kind of decision. But when she was able to state legitimate reasons for her change of views, we plowed ahead. We still had nearly half the charges to consider. By Wednesday morning, we had finished hearing a rereading of Swartz's testimony, and it was clear to all of us that he had not been honest on the stand. Even Jordan conceded that. She then said something that still stuns me: that she was "disappointed in the defendants." She had, it seems, made a great emotional investment in her belief that the defendants were not guilty, and now she realized they had lied to her. They had let her down.

The deliberations continued to be difficult and, in many ways, dysfunctional. Yet by Thursday afternoon, we had reached a strong consensus for guilty verdicts on the final two counts, conspiracy and securities fraud. Now we had to start again from the top to finalize our verdicts or decide to leave some counts hung, and we raced to finish that afternoon. Jordan wavered again and again before acceding to any guilty verdicts, though there was a consensus just as strong in the opposite direction on more than half of the charges. Still, it seemed we might complete the task. Before we left for the day, Juror No. 5 reasonably suggested that we ask the court for an extra half-hour to finally put this all to rest. Jordan, in particular, objected. She needed an extra night to think it over. Uh-oh.

And that was basically that. On Friday, as we started to deliberate, we were abruptly stopped by court officers. We couldn't get the extra hour or so it would probably have taken to reach a verdict on most of the charges. No doubt we would have been hung on some of them. Jordan, who had unconscionably been outed by name by the Wall Street Journal and the New York Post, had received a threatening letter. The judge declared a mistrial. It was particularly frustrating that the mistrial was caused, in the end, by events outside the courtroom. Lord knows we had enough problems inside the jury room. We had come together, however uneasily, only to have the marathon canceled just as we were staggering the final yards. I can't say for certain that we would have reached a verdict. It was forever a moving target, like Charlie Brown lining up a placekick with Lucy as his holder. But I am incensed that we didn't get the chance to try.

I certainly hope there will be a retrial. I believe that the defendants committed crimes and that the law demands that they be held accountable. If it's all the same with the state, though, I'm going to sit the next one out. I've served my time.