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The outside pressure on a juror that led to the declaration of a mistrial in the six-month-long trial of the former two top executives of Tyco International Ltd. are sure to focus renewed attention on the jury system and how it might function more effectively both in a new Tyco trial and in other future high-profiles cases. But as troubling as the Tyco result may be in terms of its impact on prospective jurors, lawyers say it is unclear how far courts will go to balance juror privacy and comfort against the interests of the parties and the media. “I’m very concerned about what happened here,” said Mark Zauderer, a litigation partner at Piper Rudnick and chairman of New York’s Commission on the Jury, a blue-ribbon panel looking at jury reform. “What we should all be concerned about is what impact the events of the last few days will have on people facing serving on a jury.” Defense lawyers for former Tyco Chief Executive Officer L. Dennis Kozlowski and former Chief Financial Officer Mark H. Swartz had made a number of motions for mistrial before New York County Supreme Court Justice Michael Obus following the judge’s receiving on March 25 notes from the jury indicating that the atmosphere in the jury room had turned “poisonous.” The notes said Juror No. 4, a former schoolteacher and lawyer in her 70s, was alone holding out for acquittal. Kozlowski and Swartz had been charged by the New York County District Attorney’s Office with grand larceny and several other counts for allegedly taking $170 million in unauthorized compensation. That juror’s name, Ruth Jordan, was published in a number of newspapers after it was reported that she directed an “OK” gesture at defense lawyers. She was depicted giving such a sign on the front page of the March 27 New York Post. Newspapers also interviewed staff at the juror’s apartment building and other acquaintances. The camel’s back The following week, Stephen Kaufman, the lawyer for Kozlowski, argued that a mistrial should be granted because the media attention on the juror might affect her ability to deliberate independently. The judge denied that motion and one the following day by Swartz’s lawyer, Charles Stillman, who pointed to Internet chatroom discussions harshly criticizing Juror No. 4. Though the jury had seemed back on track and was reportedly close to a verdict on April 2, evidence of new pressure on the juror was likely “the straw that broke the camel’s back,” said Michael Connolly, a litigation partner at Boston-based Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. He said the defense’s arguments were individually not strong enough to warrant a mistrial, but cumulatively they painted a picture of a juror under extraordinary media scrutiny. New York County District Attorney Robert M. Morgenthau has said that he intends to retry the case. The intrusion on the privacy of Jordan could lead to greater resistance to serving on juries, Zauderer said. He added that he was also concerned about the post-trial revelations about a juror in the Martha Stewart trial. Stewart’s lawyers have appealed her conviction on the ground that one of the jurors lied about his criminal record during jury selection. “Millions of people are looking at this and it’s making an impression,” he said. Zauderer said the jury commission would look at the issues raised by the trial, but he said he did not think there would be a return to the traditional means by which juries were insulated from the public. Sequestration, in which jurors are confined to a hotel and offered only filtered news, was once routine. It has become rare. The long separation from work, friends and family, Zauderer said, contributed to the unpopularity of jury duty. On the other hand, some form of jury confidentiality might become more common. In organized crime cases, it has become routine for courts to block disclosure of jurors’ names. Victor A. Kovner, a First Amendment lawyer and partner at Seattle-based Davis Wright Tremaine, said he expected that Obus will impose such an order in a new Tyco trial. “It will become more common,” said Kovner of confidential juries in corporate crime cases.

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