Monday, June 20, 2005
Charles Stillman, the lead defense lawyer for former Tyco CFO Mark Swartz, said after the guilty verdict for his client that the jurors "are just sadly mistaken." An article in the Wall Street Journal (here) includes statements made by two jurors who said that the testimony of Swartz and former CEO Dennis Kozlowski was not credible, and that Kozlowski came across as a liar. Both jurors focused on Kozlowski's testimony regarding an art purchase with Tyco funds from an art dealer. Kozlowski testified that it was just a coincidence that he and the dealer were in London at the same time and he happened to bump into her while window-shopping there, and then plunked down the company's money to buy the paintings. More generally, the jurors had trouble with the testimony of both defendants regarding the loan forgiveness that resulted in multi-million dollar benefits that were not reported on their taxes, something Kozlowski said he "cannot explain."
On the larger question of whether a client in a white collar case should testify, the answer is (as always): it depends. Drawing a conclusion from cases like Kozlowski/Swartz or Bernie Ebbers, in which the defendants testified and were convicted, can be counterbalanced by cases such as Martha Stewart (no testimony, conviction) and Mark Belnick, Tyco's former general counsel charged with crimes similar to those against Kozlowski and Swartz (testified, acquitted). Lawyers will always be second-guessed about the decision to testify if the client is convicted. When the jurors decide a defendant is being less than truthful, or even a liar, then the question is who is (sadly) mistaken. (ph)