Gesture from juror could derail Tyco trial

Experts doubt damage can be fixed after woman's apparent signal to defense


NEW YORK - In touching her thumb to her forefinger and appearing to flash the "OK" sign to defense lawyers on Friday, a juror in the trial of two former Tyco International executives may have made the most expensive hand gesture in the history of criminal law.

Legal experts said such an extraordinary communication would represent a tipping point in the already troubled deliberations in the case, the moment at which the six-month trial might have gone irreparably off the rails. The moment came after frustrated notes from the jury late last week indicated that one juror had simply ceased deliberating.

Though contentious deliberations are hardly unusual and though studies suggest that about 6 percent of jury trials end in hung juries, the conduct of the juror in the Tyco case shattered two fundamental premises of the system: At least until their deliberations are concluded, juries are meant to be faceless wholes and their work wholly secret.

"What's so odd about it is that in the ordinary trial, jurors try so hard not to disclose to anyone what they're thinking," said Shari Diamond, a law professor at Northwestern and an expert on juries. "Her behavior, on the other hand, has been so confident and so public."

Paradoxically, the more that is known about the identity and the views of the dissenting juror, the less the judge in the case, Michael J. Obus of state Supreme Court in Manhattan, can do to preserve the possibility of a verdict. That would be true, legal experts said, even if all Obus had to contend with were the jury's notes, including one that called the deliberations "irreparably compromised."

Appeals courts often reverse convictions that follow jury instructions that are directed at a single juror. Such instructions are often ruled to be unduly coercive.

In his comments to jurors on Friday urging them to calm down and keep talking, Obus took pains to indicate that his words were "certainly not directed at any individual person among you."

Later, though, he made a comment that some in the courtroom suspected was aimed at the holdout juror.

"You need to treat each other with the respect and dignity that you would expect for yourselves," he said. "You all have life experience. Some of you are even a little older than I am."

Obus is 55. Only a few of the jurors are older. The presumed holdout is 79 and, to the surprise of many, a former lawyer herself.

The situation has been further complicated by media reports, first on the Web site of The Wall Street Journal and then in several newspapers, naming the juror. The New York Post, which named her yesterday, called her the "holdout granny."

Legal experts said they could not think of another instance of such identification in a high-profile case in a big city, though they said that jurors' identities are often widely known in smaller communities. While jurors' names are a matter of public record, news organizations do not ordinarily name jurors while they are deliberating as a matter of convention.

"The media may well be interfering with the deliberative process," said Abraham Abramovsky, a law professor at Fordham who has written on jury privacy. "Naming her exerts a kind of pressure to get herself together and join the band."

Whether through the judge's admonitions or outside pressure, then, the risk of undue influence on a juror whose views are known, even if only because she volunteered them, presents the legal system with a difficult problem.

"If we start singling people out," said Scott M. Peeler, a former state prosecutor in Manhattan who is now in private practice at Arent Fox, "you really run a risk of coercion. The juror can't be made to think, `I've got to convict because I don't want to come out looking like I'm this insane, rogue person.'"

Obus has repeatedly admonished jurors to avoid media coverage of the case. On Friday, after the juror seemed to flash the "OK" sign, he also told jurors that they should be certain that "there is absolutely no communication of any kind between any of you and anyone involved in the trial at all, even a greeting to say hello, nothing like that."

But that may have been too little and too late.

The enormous investment of time and money on both sides colors Obus' options as well. The trial has been estimated to cost the parties more than $12 million. Jurors have heard almost six months of testimony, much of it repetitive and disorganized.

The two defendants, Tyco's former chief executive, L. Dennis Kozlowski, and the chief financial officer, Mark H. Swartz, are charged with looting the company of $600 million. The complex case turns largely on their intent, and legal experts said that it is easy to imagine why the lone juror has taken an intransigent position. At some point, they said, further deliberations can be pointless. The judge asked the jury to come back ready to try again tomorrow morning.

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