In notes to the judge, jurors have asked about the matter of criminal intent, which is an essential element of all 32 criminal charges brought against the former Tyco chief executive, L. Dennis Kozlowski, and the former chief financial officer, Mark H. Swartz. Several legal experts said that although the prosecution spent more than four months presenting its case, they provided scant direct evidence that the two men knew that their actions were improper, and thus that they had acted with criminal intent.
One juror – apparently the dissenter, Juror No. 4, a retiree and law school graduate who appeared to make a controversial “O.K.” gesture toward the defendants on Friday – wrote a note to the judge lamenting that other jurors had closed their minds to the possibility that the defendants were not guilty.
The jury, which began deliberations on March 18, is expected to try again today. Late last week, members of the jury warned that the atmosphere in the jury room had turned “poisonous,” and they accused one juror of refusing to deliberate in “good faith.”
Referring to the apparent dissenter, Bruce S. Schaeffer, a tax and securities lawyer who has attended almost every day of the six-month trial for a book he is writing, said: “I don’t think she’s crazy. She’s the only one on the jury who is a lawyer and took criminal law. She knows what mens rea means,” he said, citing a legal doctrine that for a defendant to be found guilty of an offense, he must have intended to commit a wrongful act.
“I do not think the prosecution proved criminal intent, and I don’t think they proved it to her,” Mr. Schaeffer added.
Prosecutors have contended that the two men stole hundreds of millions of dollars from the company, presenting a mountain of evidence aimed at demonstrating that Mr. Kozlowski and Mr. Swartz led a profligate lifestyle. The defendants, the prosecutors argue, improperly financed their tastes for excess at Tyco’s expense. To that end, they have played video clips of an over-the-top party given to celebrate Mr. Kozlowski’s birthday and pointed to a $6,000 shower curtain in his Manhattan apartment.