Jury deliberating fates of Tyco's ex-bosses

Questions sent to judge viewed as pro-defense


The jury in the trial of two former top executives of Tyco International began deliberations yesterday and quickly sent a series of questions to the judge that legal experts said indicated how it might rule.

In addition, comments made by an alternate juror who was excused yesterday offered insight into the jury's mindset.

Criminal intent

A little more than an hour after the jury began deliberating, the 12-member panel sent five multipart questions to the judge that focused on the issue of criminal intent, a major theme defense lawyers for L. Dennis Kozlowski, the former chief executive of Tyco, and Mark H. Swartz, the former chief financial officer, had argued was missing from the prosecution's case.

"Can a defendant who believes he or she is not committing a crime ever be found to act with criminal intent? (i.e., are there any exceptions)," the jury note asked in one of its questions.

Legal experts suggested that the questions appeared to offer positive indications for the defense

Sympathy for DA

"I'm shocked," said John J. Fahy, a former federal and New Jersey prosecutor, who has been closely following the trial.

"It means that at least some of the jury is accepting the defense position that there was no crime because there was no criminal intent. I wouldn't want to be in the DA's shoes. These are not great questions for them."

Simon Cuesta, an alternate juror who was excused yesterday with two others when Judge Michael Obus of the state Supreme Court in Manhattan gave the case to the jury, indicated that there had been talk among jurors throughout the trial that could suggest an acquittal.

`Take its time'

"There have been comments made that the prosecution has been weak compared to the defense," Cuesta, a bus driver, said. Still, he insisted: "The jury is going to take its time and return a just verdict. They will go count by count."

Jurors are not supposed to discuss the case and were reminded routinely by the judge not to talk about it. Still, Cuesta said that informal conversations took place that led him to believe that two camps had developed. "There were comments made," he said. "I think it's been split."

He said that the prosecution appeared to be "clumsy" and that the defense lawyers were "suave."

He also suggested that there had been disagreements among the jurors. "There are people that don't get along," he said, explaining that there had been screaming matches. "Some of the guys want to get this thing over with because they are having problems with their employers."

The questions issued by the deliberating jurors indicated that they were focusing on the defense's contention that the defendants did not have criminal intent.

During closing arguments, Swartz's lawyer repeatedly argued that his client never tried to hide the millions of dollars of payments that he is accused of stealing, saying they had been in plain view.

"Ask if that conduct is consistent with criminal intent," Swartz's lawyer, Charles Stillman, said. "Without criminal intent, there can be no crime."

`No shredder'

Kozlowski's lawyer, Stephen Kaufman, beat the same drum during his summation. "Who is the secret being kept from?" Kaufman said. "There was no shredder or second set of books. That's not the way a thief operates."

It remains unclear how many jurors are fixed on the issue of criminal intent, but if the jurors were to determine they had reasonable doubt about the criminal intent of the defendants, it is possible they could return a quick verdict of not guilty on all 32 counts.

Prosecutors have charged Swartz and Kozlowski with stealing $170 million by hiding details of their pay packages from the board.

They are also accused of stealing $430 million by selling Tyco shares after artificially pumping up its price. If convicted of the most serious charges, including larceny and conspiracy, Kozlowski and Swartz would face 25 years in prison.

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