(2 of 4)
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.
One juror offered her view that when things went to hell at Tyco, the Ivy League--educated, Waspy board of directors closed ranks and served up, in her words, the "Polack and the Jew" on a platter for a D.A. eager to make an example of somebody--anybody--for the corporate greed of the late '90s. (Never mind that there was no testimony about Kozlowski's roots or that Swartz is even Jewish.) That was the first indication that the soon-to-be-infamous Juror No. 4, Ruth Jordan, wasn't going to make our job any easier. Jordan, a law-school grad and former teacher, seemed to be at war with herself. Whenever she reached the precipice of a guilty vote on any count, she recoiled as if she had touched a hot stove. She was the one who allegedly flashed an O.K. signal to the defendants one day during deliberations as she left the court. The other jurors and I were unaware at the time that any such gesture had taken place.
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.