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The outside pressure on a juror that led to the declaration of a mistrial Friday 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 Manhattan Supreme Court Justice Michael Obus since March 25 notes from the jury indicated 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 Manhattan District Attorney’s Office with grand larceny and several other counts for allegedly taking $170 million in unauthorized compensation. That juror’s name, Ruth Gordon, 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 following Monday, Stephen Kaufman, the lawyer for Kozlowski, argued that a mistrial should be granted because the media attention on the juror might impact 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 last week and was reportedly close to a verdict Friday, evidence of new pressure on the juror was likely “the straw that broke the camel’s back,” said Michael Connolly, a litigation partner with Mintz Levin Cohn Ferris Glovsky and Popeo. He said the defense’s arguments were individually not strong enough to warrant a mistrial but cumulatively painted a picture of a juror bearing extraordinary media scrutiny. Manhattan 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, said Zauderer. 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. JURY COMMISSION OUTLOOK 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 Davis Wright Tremaine, said he expected Justice 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. Zauderer agreed that such an order was one measure Obus was certain to consider. He said, however, that he had some concerns about confidential juries’ becoming more routine. “There is some value in having juries known to the communities,” he said. Kovner agreed and said he expected some media organizations might make such arguments. However, he said he was not sure how strong an interest newspapers typically have in juror identities, which have mostly not been reported in past cases. Weighed against the interests of the justice, he said, the right to know jurors’ names and addresses was probably low. REINING IN THE PRESS Courts might also consider taking further steps to rein in the press in high-profile cases. Southern District Judge Miriam Goldman Cedarbaum banned reporters from jury selection in Martha Stewart’s trial, though the 2nd U.S. Circuit Court of Appeals later overturned her decision. Connolly said judges in future trials would likely be making more explicit statements about consequences for violating gag orders, but he said not much would likely change overall. “I think the judge did everything proper in this case,” said Connolly. “He worked as hard as he could to preserve the process in a very high-pressure, high-profile trial.”

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