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.