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The trial of the two former top executives at Tyco International Ltd. appeared to get back on track yesterday after a tumultuous four days that had seemed likely to culminate in a mistrial. In contrast to notes from the jury late last week that described the atmosphere in the jury room as “poisonous” and said deliberations might be “irreparably compromised,” a note sent by jurors yesterday asked Manhattan Supreme Court Justice Michael Obus to clarify the difference between a principal and an accessory to a crime. Justice Obus noted the jury’s apparent willingness to deliberate in denying a motion for a mistrial made yesterday morning by lawyers for former Tyco Chief Executive Officer L. Dennis Kozlowski and former Chief Financial Officer Mark H. Swartz. The two are charged with grand larceny, securities fraud and other counts for allegedly taking $170 million in unauthorized compensation. They face up to 30 years in prison if convicted. A mistrial remains a real possibility, however, as the trial enters its seventh month. Though the jury returned to deliberations yesterday, the acrimony that it reported last week could re-emerge. The contention was the grounds for a defense mistrial motion last week. Yesterday, Stephen Kaufman, the lawyer for Mr. Kozlowski, renewed the motion, citing the media attention focused over the weekend on Juror No. 4, whose unwavering support for the defense is believed to be at the center of jury room disputes. The front page of Saturday’s New York Post featured an illustration of Juror No. 4, a former lawyer and schoolteacher in her 70s, flashing the “OK” sign, accompanied by the headline: “Ms. Trial.” Based on notes from the jury room, that juror is believed to be the sole holdout for acquittal. She was reported in news accounts to have made an “OK” gesture to the defense team on Friday, though neither the judge nor any of the lawyers present said they saw it. Yesterday, as the judge instructed the jury on the difference between an accessory and a principal, Juror No. 4 held her right hand upright, curling her fingers around a pen, and she once touched her hair. She did not appear to make any kind of signal. Name Revealed The juror’s name was reported in the Wall Street Journal’s online edition and the New York Post. Mr. Kaufman said the Post’s references to her as “batty” and “paranoid” could have increased her isolation on the jury. “It ignores reality to suppose that some jurors did not see the front page of the Post,” said Mr. Kaufman. With the news reports, he said, “animosity toward this juror has to be intensified to an unimaginable degree.” He said there was “nothing bizarre” and “nothing irrational” about a juror’s concluding that the prosecution had not proven its case. He said he feared she would feel compelled to change her view of the case “to reverse the image created by the New York Post.” Mr. Kaufman said any conviction under such circumstances would be flawed. “No right-thinking person could view a conviction on a single count in this multi-count case as the result of a fair, uncompromised process,” he said. Assistant District Attorney Marc Scholl responded that he had not “heard a lot of law in what Mr. Kaufman said.” Mr. Scholl noted that jury trials in smaller communities often go forward even though parties are personally known to juries or are the subject of community gossip. He urged the court to let the jurors decide whether they could deliberate. Justice Obus agreed, saying it would be inappropriate to declare a mistrial when jurors had spent six months hearing a case and were willing to deliberate. The judge said he had spoken to Juror No. 4 earlier in the morning. He said she had clearly indicated that nothing that had happened would prevent her from deliberating in good faith. “As you can probably tell by now,” the judge said, “she’s a very independent lady.” Justice Obus also said the court would not “let what is published in the newspapers determine what happens here.” Ronald Blum, a former Manhattan Assistant District Attorney now in private practice in the New York office of Manatt, Phelps & Phillips, said Justice Obus may have been able to defuse the jury crisis by sending the jurors home to relax over the weekend. Rancor among jurors is common in cases of all size, he said, but frequently ebbs in the course of deliberations. Mr. Kaufman indicated in his arguments that continuing with the trial would be grounds for appeal of any conviction. Mr. Blum said he thought the juror’s statements that she was able to continue would weigh strongly against such an argument. “If I were the defense, I’d be nervous this isn’t a real appealable issue,” he said. The jury’s request for clarification yesterday bore on Mr. Swartz’s role in Tyco’s payment of a $20 million “investment banking fee” to director Frank Walsh for helping put together a deal by which Tyco acquired software maker CIT Group, Inc. The judge told the jury someone could be found guilty as a principal if they acted with a “culpable mental state.” The defense has maintained throughout that the bonuses and loans taken by Messrs. Kozlowski and Swartz were fully authorized and characteristic of Tyco’s “pay for performance” corporate culture.

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