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Testifying in his own defense in the case that has come to epitomize corporate greed, former Tyco Chief Financial Officer Mark L. Swartz has proven to be a formidable courtroom presence. But not because he glowers at the prosecutor who dares cross-examine him. Rather, Swartz apologizes constantly for interrupting his inquisitor or not quite understanding his questions. More than once, he has addressed Assistant District Attorney Marc Scholl as “sir.” Affable, calm and self-effacing, Swartz has come across in his four days of testimony so far as a competent executive and a likeable human being. Perhaps more importantly, he has impressed many courtroom observers as a very effective witness. One lawyer who said her sympathies lie with the prosecution acknowledged that he was a “fantastic witness,” and said she was struck by how Swartz, making frequent eye contact with the jury, spoke proudly and lovingly of his family on his first day of direct examination. Another attorney who has regularly attended the trial said, “He certainly comes across as articulate and he holds the jury’s attention.” The Manhattan district attorney’s office has charged Swartz, along with former Tyco Chairman L. Dennis Kozlowski, with enterprise corruption and grand larceny for allegedly looting their company of some $600 million. If convicted, they each face up to 30 years in prison. The prosecution, which began its case in October, has relied on the testimony of former Tyco board members and employees who have said Kozlowski and Swartz made illegal payments to themselves by abusing company loan and bonus programs. The defense has argued that all such payments and bonuses were approved by the board, and lavish compensation was part of the corporate culture of Tyco. Facing his first full day of cross-examination Wednesday, Swartz faced a barrage of questions from Scholl focusing on his receipt of an $8 million “performance” bonus relating to the company’s sale of ADT Automotive, one of its subsidiaries. Kozlowski received a $16 million bonus related to the sale. “Is it fair to say that the pay for the performance plan is not intended to be a reward for cargoing and selling off parts of the company?” asked Scholl. Swartz agreed, but later said the company’s incentive plan for senior executives provided they could receive such bonuses, as long as the company made a profit. Swartz, who is represented by Charles Stillman of Stillman & Friedman, will likely face more tough questions as his cross-examination proceeds, and it remains to be seen whether or not he can maintain his genial mien. And while his modest courtroom demeanor may impress the jury, cutting against previous testimony about Kozlowski’s lavish tastes and ostentatious entertaining, Swartz is also clearly no stranger to wealth. Much of his early testimony focused on a series of Manhattan real estate transactions, all involving luxury apartments worth millions of dollars. Some of these apartments, he testified, were personal investments. Others were corporate apartments, purchased for his use that he tried to buy later on. In one deal that ultimately fell apart, Swartz said he had hoped to simultaneously address Tyco employees’ difficulties in finding New York hotel rooms and turn a tidy profit himself by buying a block of rooms in the Trump International Hotel & Tower on Central Park West. After Kozlowski expressed reservations about having Tyco pay hotel charges to its CFO, Swartz said he decided Tyco at least should buy the block of rooms. Swartz’ testimony, coming so near the end of the case, could have a significant impact on the jury, said the lawyer who has regularly attended the trial. “You always hope that the jury will go back and deliberate based on the whole case, but some witnesses definitely make a strong impression,” he said.

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