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The prosecution asked jurors Tuesday to hold the former top two executives of Tyco International Ltd. responsible for their actions “just as you would hold the thief who stole your pocketbook responsible.” In the closing argument for the Manhattan district attorney’s office in the trial of former Tyco Chief Executive Officer L. Dennis Kozlowski and former Chief Financial Officer Mark Swartz, Assistant District Attorney Ann M. Donnelly urged jurors not to let the corporate context blind them to the fact that a crime had occurred. There are “weapons you use in a robbery and weapons you use to loot a corporation,” she said. The weapons used in the latter crime, she added, were the knowledge top executives had of corporate structures and how to “pervert and corrupt” them. Kozlowski and Swartz are charged with grand larceny, securities fraud and several other counts for allegedly taking $170 million in unauthorized compensation. They each face up to 30 years in prison if convicted. In a trial before Manhattan Supreme Court Justice Michael Obus that has lasted almost six months, the prosecution has called on a bevy of witnesses, mostly former Tyco directors and employees, who have testified that Kozlowski and Swartz did not receive authorization for large bonuses and loans they received from the company. On the other hand, the defense has maintained that the bonuses and loans were authorized and that lavish compensation was part of Tyco’s “pay for performance” corporate culture. In his closing argument Monday, Kozlowski’s lawyer Stephen Kaufman said the ex-directors were casting blame on his client to deflect their own liability in shareholder litigation. Kaufman also had railed against the prosecution’s use of what he called “irrelevant” evidence, including the videotape of the $2 million party Kozlowski threw in Sardinia for his wife’s birthday and the now-famous $6,000 shower curtain installed in his Manhattan apartment. But Donnelly told the jury that such evidence was relevant because Kozlowski and Swartz used corporate money to pay for their extravagances. Such evidence, she said, offered jurors “a window into how these defendants viewed the company,” which was as “a purely personal source of money whenever they wanted.” Clear and forceful throughout, Donnelly also made frequent use of sarcasm to punch holes in the defense’s argument. Despite “the corporate terminology, the fancy lingo,” she said, the defendants’ claims that they had received authorization were like those of children caught breaking their parents’ rules. Characterizing Swartz’s defense as “Dennis said I could,” Donnelly said the argument was “about a half step away from ‘the dog ate my homework.’” Donnelly also defended the directors’ credibility, noting that they had been willing to shoulder the risk of civil litigation themselves when they brought lawyer David Boies and his firm Boies, Schiller & Flexner to investigate corporate governance at Tyco in 2002. The prosecutor said jurors needed to compare the credibility of the former directors with that of Swartz, the only defense witness. She acknowledged Swartz had come across on the witness stand as a “nice guy” with a “soothing aura” and said he reminded her more of a talk-show host than a defendant testifying on his own behalf. “Mark Swartz has truly mastered the art of communication,” she said. But she said Swartz’s testimony only sounded good and was really a collection of half-truths, deceptions and lies. “You can’t rely on his manner and the fact that he seems sincere because the substance of what he’s saying doesn’t make any sense,” said Donnelly. The prosecutor also offered the jury motives for why Kozlowski and Swartz, already fabulously wealthy, would steal. In the case of Kozlowski, she said, social pretensions might have led him to use corporate money for purposes such as building a collection of priceless art and donating money to institutions like Columbia University, attended by his daughter. Swartz, she noted, seemed more modest but “fancies himself a real estate investor” and used Tyco money to buy property. For both men, she said, a sense of entitlement stemming from their role in the company’s success likely led to their stealing. “What else but a sense of entitlement would make these two men think Tyco should pay for a birthday party for the CEO’s wife?” Donnelly asked. Assistant District Attorney Marc Scholl is expected to continue the prosecution’s closing argument today, addressing each of the individual charges against the two men. DEFENSE CLOSES Tuesday, Kaufman had also continued his closing argument from Monday, telling jurors that issues between Kozlowski and Tyco belong in civil court rather than criminal court. “This is a case in search of crime,” he said. Following the end of Kaufman’s summation, Justice Obus permitted Swartz’s lawyer Charles Stillman to briefly address the jury and remind them of the main points from his summation. Stillman had expressed concern Monday that the jury would not recollect the summation he gave on March 8, just before the trial was delayed for almost a week by Kaufman’s illness.

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