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The trial of the two former top executives at Tyco International Ltd.appeared to get back on track Monday after a tumultuous four daysthat had seemed likely to culminate in a mistrial. In contrast to notes from the jury late last week that described theatmosphere in the jury room as “poisonous” and said deliberations mightbe “irreparably compromised,” a note sent by jurors Monday askedManhattan Supreme Court Justice Michael Obus to clarify the differencebetween a principal and an accessory to a crime. Justice Obus noted the jury’s apparent willingness to deliberate indenying a motion for a mistrial made Monday morning by lawyers forformer Tyco Chief Executive Officer L. Dennis Kozlowski and former ChiefFinancial Officer Mark H. Swartz. The two are charged with grand larceny, securities fraud and othercounts 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 itsseventh month. Though the jury returned to deliberations Monday, theacrimony that it reported last week could re-emerge. The contention was the grounds for a defense mistrial motion last week. Monday, Stephen Kaufman, the lawyer for Kozlowski, renewed themotion, citing the media attention focused over the weekend on Juror No.4, whose unwavering support for the defense is believed to be at thecenter of jury room disputes. The front page of Saturday’s New York Post featured an illustration ofJuror 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 soleholdout for acquittal. She was reported in news accounts to have made an”OK” gesture to the defense team on Friday, though neither the judge norany of the lawyers present said they saw it. Monday, as the judge instructed the jury on the difference between anaccessory and a principal, Juror No. 4 held her right hand upright,curling her fingers around a pen, and she once touched her hair. She didnot appear to make any kind of signal. NAME REVEALED The juror’s name was reported in the Wall Street Journal‘s onlineedition and the New York Post. Kaufman said the Post‘s references toher as “batty” and “paranoid” could have increased her isolation on thejury. “It ignores reality to suppose that some jurors did not see the frontpage of the Post,” said Kaufman. With the news reports, he said,”animosity toward this juror has to be intensified to an unimaginabledegree.” He said there was “nothing bizarre” and “nothing irrational” about ajuror’s concluding that the prosecution had not proven its case. He said he feared she would feel compelled to change her view of thecase “to reverse the image created by the New York Post.” Mr. Kaufmansaid any conviction under such circumstances would be flawed. “No right-thinking person could view a conviction on a single count inthis multi-count case as the result of a fair, uncompromised process,”he said. Assistant District Attorney Marc Scholl responded that he had not “hearda lot of law in what Mr. Kaufman said.” Scholl noted that jury trials in smaller communities often goforward even though parties are personally known to juries or are thesubject of community gossip. He urged the court to let the jurors decidewhether they could deliberate. Justice Obus agreed, saying it would be inappropriate to declare amistrial when jurors had spent six months hearing a case and werewilling to deliberate. The judge said he had spoken to Juror No. 4 earlier in the morning. Hesaid she had clearly indicated that nothing that had happened wouldprevent her from deliberating in good faith. “As you can probably tell by now,” the judge said, “she’s a veryindependent lady.” Obus also said the court would not “let what is published in thenewspapers determine what happens here.” Ronald Blum, a former Manhattan assistant district attorney now inprivate practice in the New York office of Manatt, Phelps & Phillips,said Obus may have been able to defuse the jury crisis bysending the jurors home to relax over the weekend. Rancor among jurorsis common in cases of all size, he said, but frequently ebbs in thecourse of deliberations. Kaufman indicated in his arguments that continuing with the trialwould be grounds for appeal of any conviction. Blum said he thoughtthe juror’s statements that she was able to continue would weighstrongly against such an argument. “If I were the defense, I’d be nervous this isn’t a real appealableissue,” he said. The jury’s request for clarification Monday bore on Swartz’s rolein Tyco’s payment of a $20 million “investment banking fee” to directorFrank Walsh for helping put together a deal by which Tyco acquiredsoftware maker CIT Group Inc. The judge told the jury someone could befound guilty as a principal if they acted with a “culpable mentalstate.” The defense has maintained throughout that the bonuses and loans takenby Kozlowski and Swartz were fully authorized and characteristicof Tyco’s “pay for performance” corporate culture.

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