One Angry Man

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    On the other hand, a few jurors felt from the start that these guys were crooks. I expressed the view, shared by at least one fellow juror, that while I didn't buy much of the prosecution's case, I was troubled by the four bonuses charged as separate grand larcenies—totaling about $145 million—that the two divvied up. I felt fairly sure while listening to the testimony and absolutely certain after checking the financial documents during deliberations that three of those bonuses were illegal. They were supposed to be approved by the board's compensation committee; they were not. And the reasons offered by Swartz on the stand for why they were legitimate seemed to be fabrications, repeated over and over in a virtuoso performance.

    If there was white noise in the courtroom, though, there was a real racket in the jury room. The first day, we instituted a policy of standing before speaking, because we were talking over one another. The stand-and-speak policy was only partly effective. Yet, slowly and surely, we did make progress by focusing especially on the bonuses and on a $20 million payment that the defendants made to a fellow director (Frank Walsh) without informing the rest of the board for six months.

    The first bonus, taken in 1999 in the form of a loan forgiveness totaling $37.5 million for the executives, was in many ways the clearest. During a mind-numbing nine days on the stand, Swartz said the payment was necessary to correct for accounting changes brought about by two acquisitions. He even sketched out an elaborate calculation that he claimed explained the size of the payments. It didn't hold water. Their bonus formula had in fact been properly adjusted for the accounting changes. The calculation he performed on the stand? Complete nonsense, wrong on so many levels as to be laughable—if it hadn't proved so convincing initially to much of the jury.

    As for the three other bonuses, Swartz stated repeatedly that they were early payouts from the annual-bonus formula and thus legitimate. When the payouts were made, however, the defendants sought a special accounting treatment for the bonuses as "direct and incremental." The justifications for such a classification included declaring that they were specifically not early payouts of the annual-bonus plan. In other words, they were just another helping of remuneration. Swartz signed memos at the time stating exactly that. On the stand, his explanation was the exact opposite, and when confronted about the contradiction he performed a dizzying tap dance. The fourth bonus, however, had been approved after the fact by the compensation committee, which did raise reasonable doubt.

    After about a week, all the jurors but one (yes, No. 4) seemed ready to convict on the bogus-bonus charges. That was when the jury broke down and one juror, speaking for most of us, sent a letter to the judge about the "poisonous" atmosphere in the room. Charges of closed-mindedness and even corruption were being hurled about the room like spitballs. Eleven of us had become convinced that the 12th juror would never agree to a guilty verdict on any count, no matter how compelling the evidence. We saw no reason to continue under such circumstances and no plausible benefit in doing so. For two days, we practically begged the judge to declare a mistrial due to a hung jury. Miraculously, on the following Monday we seemed to have a breakthrough. Jordan said she had had a change of heart and believed that her view of reasonable doubt was perhaps extreme. There was skepticism about her sudden turnabout. We were worried that she was giving in to the group without actually being convinced by the evidence. We didn't want that kind of decision. But when she was able to state legitimate reasons for her change of views, we plowed ahead.

    We still had nearly half the charges to consider. By Wednesday morning, we had finished hearing a rereading of Swartz's testimony, and it was clear to all of us that he had not been honest on the stand. Even Jordan conceded that. She then said something that still stuns me: that she was "disappointed in the defendants." She had, it seems, made a great emotional investment in her belief that the defendants were not guilty, and now she realized they had lied to her. They had let her down.

    The deliberations continued to be difficult and, in many ways, dysfunctional. Yet by Thursday afternoon, we had reached a strong consensus for guilty verdicts on the final two counts, conspiracy and securities fraud. Now we had to start again from the top to finalize our verdicts or decide to leave some counts hung, and we raced to finish that afternoon. Jordan wavered again and again before acceding to any guilty verdicts, though there was a consensus just as strong in the opposite direction on more than half of the charges. Still, it seemed we might complete the task. Before we left for the day, Juror No. 5 reasonably suggested that we ask the court for an extra half-hour to finally put this all to rest. Jordan, in particular, objected. She needed an extra night to think it over. Uh-oh.

    And that was basically that. On Friday, as we started to deliberate, we were abruptly stopped by court officers. We couldn't get the extra hour or so it would probably have taken to reach a verdict on most of the charges. No doubt we would have been hung on some of them. Jordan, who had unconscionably been outed by name by the Wall Street Journal and the New York Post , had received a threatening letter. The judge declared a mistrial. It was particularly frustrating that the mistrial was caused, in the end, by events outside the courtroom.

    Lord knows we had enough problems inside the jury room. We had come together, however uneasily, only to have the marathon canceled just as we were staggering the final yards. I can't say for certain that we would have reached a verdict. It was forever a moving target, like Charlie Brown lining up a placekick with Lucy as his holder. But I am incensed that we didn't get the chance to try.

    I certainly hope there will be a retrial. I believe that the defendants committed crimes and that the law demands that they be held accountable. If it's all the same with the state, though, I'm going to sit the next one out. I've served my time.

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