NEW YORK (CNN/Money) -
The jury in the trial of ex-Tyco CEO Dennis Kozlowski failed to reach a verdict for a ninth day Tuesday, after the judge denied yet another motion for a mistrial to end the six-month long corruption case.
New York State Court Judge Michael Obus rejected a new motion that was similar to one he rejected Monday -- that media coverage of one juror, reported to be the lone holdout in favor of acquittal, put her under undue pressure to reach a verdict.
Tuesday, it was attorney Charles Stillman, representing co-defendant Mark Swartz, Tyco's ex-finance chief, who added to the record "venomous and outrageous statements" made in Internet chat rooms about the holdout juror. On Monday, Kozlowski's attorney's introduced newspaper reports from over the weekend, including Saturday's New York Post, that identified the juror.
The jury has been the focus of unusual amounts of media attention after the juror suspected of being the holdout was spotted flashing what appeared to be an "OK" sign toward the defense team when the jury came into the courtroom Friday.
Kozlowski lawyer Stephen Kaufman argued Monday morning that the media coverage would be "lethal" to future deliberations, but Obus said a mistrial declaration would be "inappropriate" and that the jury -- which announced it was deadlocked last week -- should keep trying.
Back to business
After a series of unusual notes last week suggesting that the jurors were having problems deliberating, the notes they sent out Monday and Tuesday were far more typical, seeking clarification of a legal issue and asking to review some of the evidence presented at the trial, which has run for nearly six months.
Kozlowski didn't take the stand during the trial and Swartz was the only defense witness.
The three-woman, nine-man jury hearing the case stunned the court last week when it sent a series of notes to Obus saying a single juror "stopped deliberating in good faith" and describing the atmosphere in the deliberation room as "poisonous." The holdout sent her own note to the judge complaining that the other jurors "refuse to recognize the right of at least one juror to have a good faith belief that the prosecution has not proved its case that the defendants are guilty."
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Judge Michael Obus denied a motion for a mistrial in the Tyco corruption case. CNNfn's Mary Snow reports.
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But Obus said he spoke with the juror Monday and she assured him that she could continue deliberations in good faith. Obus said she was "an independent woman," and sent jurors back for deliberations.
"We cannot let what is published in newspapers determine what happens here," Obus said before the jury returned to the courtroom.
Kozlowski and Swartz are accused of bilking the conglomerate of $600 million -- $170 million from unauthorized bonuses and personal loans and another $430 million through dishonest stock sales.
Both defendants pleaded not guilty to charges of securities fraud, conspiracy, grand larceny and falsifying business records.
The prosecution entered 700 exhibits into evidence and called 48 witnesses, including several former Tyco directors who denied approving millions of dollars worth of personal loans and bonuses for the former executives.
Grounds for appeal
If the jury now returns with a guilty verdict, the controversy over juror No. 4 will be grounds for an appeal, CNN legal analyst Jeffrey Toobin said. "Whether it's successful is another story," he said on CNNfn.
"The fact that she was named in public, the defense will argue, was so intimidating that the verdict can't be trusted. The fact that the judge is discussing the case with her individually is another ground for appeal."
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But Toobin said the continuation of the deliberations could be a bad sign for the defendants.
"It's worth remembering that most appeals fail," he said. "If this jury comes back after hearing all this evidence, it's more than likely it will stand, I think."
But white collar criminal defense attorney Henry Mazurek said the media's identification of the juror gives the defense strong grounds for an appeal should the juror change her mind and vote to convict.
"Whenever you appeal, it's a little bit of an uphill battle. But it's a real issue an appellate court will take some time to decide and an issue the district attorney would rather not have," said Mazurek.
Mistrial may not help defendants
But Orin Snyder, a former federal prosecutor now with Manatt Phelps & Phillips, said he believes the holdout juror is unlikely to change her mind and a mistrial will eventually have to be granted by the judge. He also said there is no chance that New York District Attorney Robert Morgenthau will drop the case.
"This is the biggest corporate misconduct case Robert Morgenthau has ever had. Even if there is a mistrial in the next trial, there would be a third trial," Snyder said.
The prosecutors would have an advantage in a retrial, Snyder said, because the first trial gives them a chance to learn from any mistakes and refine their case.
"It's very premature for either of these defendants to feel any relief in a mistrial. This will be an opportunity for prosecution to streamline its case," he said.
Snyder said the prosecution's apparent success convincing almost all the jury would put pressure on the defendants to seek a plea bargain if there is a mistrial. But given the penalties the government is seeking, it may be difficult to get either of them to plead guilty, he added.
"I think it (a plea agreement) is possible but not likely," he said. "I don't know what's being offered. It's probably substantial jail time, and jail time in a state prison, which is very difficult to swallow."
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