The verdict is in: When it comes to corporate fraud trials, shorter is better.
The conviction of former Tyco International Ltd. executives after a five-month retrial on larceny charges underscores the importance of a clear, streamlined presentation, legal experts said yesterday.
The first criminal case against L. Dennis Kozlowski and Mark H. Swartz dragged on for six months. It ended in a mistrial in April 2004, after a holdout juror was identified by news outlets and received what she perceived as coercive messages.
The debacle bought Kozlowski and Swartz another year of liberty -- but also gave the Manhattan district attorney's office an unusual chance to reanalyze and refine its prosecution. In all, prosecutors shaved five weeks off the length of the first trial.
"This is one of those rare cases where the government really needed a do-over," said Steven M. Cohen, a former federal prosecutor and a partner at Kronish Lieb Weiner & Hellman LLP.
The media frenzy after the first trial offered the government a road map for strengthening its case. Several jurors appeared on cable television programs discussing the evidence and their frustration with a lone holdout. One juror wrote a long magazine story criticizing prosecutors for overloading the panel with salacious details about Kozlowski's spending on a $6,000 shower curtain, an umbrella stand shaped like a poodle and a lavish Sardinian party where toga-clad dancers gyrated beside the pool.
Most of that evidence went by the wayside the second time around.
"When they narrowed it to what the case was really about -- the unauthorized bonuses -- the jury responded with a guilty verdict," said Patrick D. Robbins, a partner at Shearman & Sterling LLP in San Francisco. "It really is all about misappropriating company assets and not being truthful to the board about it."
Steven R. Peikin, a former official at the U.S. attorney's office in Manhattan who practices at Sullivan & Cromwell LLP, said conviction rates for retrials involving white-collar defendants remain fairly strong.
For instance, a New York jury convicted investment banker Frank P. Quattrone on obstruction-of-justice charges last year, after jurors in his first trial deadlocked.
Mistrials sometimes can give the most help to whichever side performed the worst in the first go-round. Disappointed lawyers typically reevaluate the strength and the number of their witnesses and pore over transcripts of important testimony, searching for vulnerabilities in the other side's case.
And key witnesses who took the stand in the initial trial, such as defendant Swartz, remain virtually locked into their previous testimony, lest they face harsh questions about why they changed their story, according to William H. Jeffress Jr., a defense lawyer at Baker Botts LLP.
"Because it's the government's burden of proof beyond a reasonable doubt, if they get a second chance to do it, it's inevitably to their advantage," said Michael N. Levy, a defense lawyer with McKee Nelson LLP.
The government soon will have ample opportunity to put that theory to the test.
Jury selection began this week in a retrial of two former Westar Energy Inc. executives on conspiracy and false records charges. Federal prosecutors in New York are preparing a second prosecution of former Adelphia Communications Corp. executive Michael J. Rigas in connection with a multibillion-dollar securities fraud at the cable television company. And the U.S. attorney in New Jersey has announced plans to retry former Cendant Corp. chairman Walter A. Forbes after a jury deadlocked in his case in January. Although they are still meeting, jurors in the trial of HealthSouth Corp. founder Richard M. Scrushy have told the judge in that case that they have been unable to reach a unanimous verdict.
"When it comes to white-collar crime, I don't see any diminished enthusiasm for prosecuting," said Stephen A. Saltzburg, a law professor at George Washington University and a former Justice Department official.