Kozlowski’s lawyers had argued that a weekend controversy over a member of the jury who was spotted flashing what appeared to be an “OK” sign in court would be “lethal” to future deliberations.
But Judge Michael Obus said a mistrial declaration would be “inappropriate” and that the jury — which announced it was deadlocked last week — should keep trying.
After deliberations resumed, the jury sent three more notes to Judge Obus Monday afternoon seeking clarification of a legal issue and asking to review some of the evidence presented at the trial, which has run for nearly six months.
A courtroom artist’s sketch of the jurors at work during the trial.
The three-woman, nine-man jury hearing the case stunned the court last week when it sent a series of notes to Obus saying a single juror “stopped deliberating in good faith” and describing the atmosphere in the deliberation room as “poisonous.”
The situation got stranger Friday, when spectators reported seeing juror No. 4 flash what appeared to be an “OK” signal in the direction of the defense table on her way into the courtroom. Defense attorneys say they did not see the gesture.
Kozlowski lawyer Stephen Kaufman argued that news reports over the weekend, some of which gave the juror’s name, have exerted undue pressure on the holdout juror.
But Obus said he spoke with the juror Monday and she assured him that she could continue deliberations in good faith. Obus said she was “an independent woman,” and sent jurors back for their eighth day of deliberations.
“We cannot let what is published in newspapers determine what happens here,” Obus said before the jury returned to the courtroom.
Kozlowski and ex-Tyco CFO Mark Swartz are accused of bilking the conglomerate of $600 million — $170 million from unauthorized bonuses and personal loans and another $430 million through dishonest stock sales.
Both defendants pleaded not guilty to charges of securities fraud, conspiracy, grand larceny and falsifying business records.
If the jury now returns with a guilty verdict, the controversy over juror No. 4 will be grounds for an appeal, CNN legal analyst Jeffrey Toobin said.
“Certainly this whole bizarre scenario will be grounds for an appeal. Whether it’s successful is another story,” he said on CNNfn.
“The fact that she was named in public, the defense will argue was so intimidating that the verdict can’t be trusted. The fact that the judge is discussing the case with her individually is another ground for appeal.”