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A judge declined to call a mistrial yesterday in the trial of two former Tyco executives, rejecting a defense motion contending that one juror apparently holding out for acquittal had been pressured by intense media coverage. New York Supreme Court Justice Michael Obus said he spoke privately with the juror, who was identified by name on the cover of a tabloid newspaper over the weekend and depicted making an “OK” hand signal to the defense. He said she told him “that nothing that has happened will from her point of view prevent her from deliberating in good conscience with the other jurors.” “It seems to me that it would be inappropriate to declare a mistrial when all 12 jurors, who have devoted six months of their lives to this trial, are prepared to continue,” said Obus. When the jurors returned to the courtroom, he told them to let him know “if at any time any of you feel that the deliberations cannot continue properly for whatever reason.” Lawyers for former Tyco International CEO L. Dennis Kozlowski and former finance chief Mark Swartz had said the media — in addition to the 11 other jurors — were putting unfair pressure on the juror. The lawyers suggested the lone juror, No. 4, was holding out for an acquittal. Kozlowski and Swartz are accused in 32 counts of looting $600 million from the conglomerate. The trial has come to symbolize the corporate excesses of the late 1990s. Last week, jurors indicated in a note that the atmosphere in the jury room had turned “poisonous” to the point of name-calling. While the prospect of a mistrial loomed Friday, jurors said they wanted to return yesterday to continue deliberating. They did just that, even sending a note Monday afternoon asking the judge to clarify the concept of “acting in concert,” an element of one of the grand larceny charges against Swartz. In requesting the mistrial, defense lawyer Stephen Kaufman showed the judge the front page of Saturday’s edition of the New York Post, which bore a sketch of the juror and called her “Ms. Trial” in large type. The paper identified her by name and called her a “paranoid socialite” and “batty blueblood.” The Wall Street Journal also identified her by name. Juror No. 4 made a hand motion on Friday as she passed in front of lawyers on her way to the jury box, bringing her hand near her face. Some in the courtroom interpreted it as an “OK” signal, although lawyers said they did not see it. “As it was described to us, the alleged gesture looked nothing like what was depicted in the Post,” Kaufman told the judge. But he added, “Avoiding the front page would have probably been impossible for any juror who left his or her home on Saturday.” Kaufman also cited media comments by an alternate juror in the case that suggested other jurors were hostile toward juror No. 4, and said, “What was a poisonous atmosphere on Thursday must now be lethal.” In arguing against the defense motion, Assistant District Attorney Marc Scholl noted the judge has repeatedly urged jurors to stay away from media coverage. He said it was mere speculation to suggest the jury had disobeyed those instructions. “The law presumes that the jurors will follow the court’s instructions,” he said. Three notes sent to the judge Thursday described a jury with deep divisions and hinted that the majority favored a conviction. The first said one member of the jury “had stopped deliberating in good faith. . . . The majority of us believe we could reach a fair conclusion without the presence of this juror.” A second note said that other jurors “refuse to recognize the right of at least one juror to have a good faith belief that the prosecution had not proved its case.” A third note then said that the accusation in the second note came from a single juror. There is no provision in New York law for dismissing a non-cooperative juror. The defendants in the six-month-old trial are accused of stealing from the Bermuda-based conglomerate they once headed by hiding excessive pay packages from the company’s board and by selling stock at inflated prices. The defense argued that the two men earned every dime and that the board of directors and the company’s auditors knew about the compensation and never objected. Much of the trial has been dominated by descriptions of flamboyant behavior and breakneck spending emblematic of the era of corporate scandal that produced a string of recent high-profile white-collar trials.

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