Free Taking Down the Lion: The Rise and Fall of Tyco's Dennis Kozlowski by Catherine S. Neal Page B

profligacy, circa a decade ago. Yet . . . Kozlowski now looks like small fry in the sea of financial shenanigans.” 12 Kaplan was referring to the many unindicted individuals involved in the financial crisis of 2008, where the dollar amounts were far greater than those involved in the Tyco scandal.
We all normalize the things in our lives. For Dennis Kozlowski, it became normal to see lots of zeros at the end of every dollar amount.
Kozlowski’s ambition blinded him. He grew the company very quickly—he was named “The Most Aggressive CEO” by Businessweek in May of 2001. 13 His pace was unwise. He wanted to achieve too much too fast.
    4. The Jury
    After spending two and a half years reviewing and studying the evidence presented during both criminal trials, I do not believe jurors in either understood the vast majority of the evidence. The corporate finance, accounting methods, compensation plans, and employment contracts at issue in the case were as complex as those used by any business organization in the world. Between the volume, the detail, the complexity, the length of the trials, and the experience and background needed to understand the information presented, I don’t believe jurors could have understood much of what was presented. Jury foreman Isaac Rosenthal confirmed that some jurors slept through parts of the trial. 14
    I asked former Tyco Executive Vice President Brad McGee, who testified during both trials, if he thought the jury understood his testimony. He said, “No.” 15
    I asked Robert Morgenthau if our jury system is equipped to fairly adjudicate a complex case like People v. Kozlowski. Mr. Morgenthau, with a razor-sharp legal mind at the age of ninety-three, told me a story about a case he tried in the1960s. He told me about a jury on which there were five businessmen who became a “clique”; they felt they were more qualified than the rest of the jurors to understand the evidence. Mr. Morgenthau said there were two African American women on the jury, which he described as very unusual in the 1960s. Morgenthau said he heard a conversation between jurors in which the five businessmen were opining about the complexity of the evidence when one of the African American women said to them, “Don’t you know what this case is about?” Morgenthau’s point was that if jurors get the gist, if they have “a general sense of what the case is about, that’s sometimes more important than understanding the details.” 16
    With all due respect to Mr. Morgenthau—if I was on trial, I would want the jury to understand the details. And I feel strongly that our legal system is not capable of fairly adjudicating complex cases like Kozlowski’s. Our system just doesn’t work in its current form and with the rules in place.
    What Did the Jury Have to Believe in Order to Find Kozlowski Guilty of 22 Felony Charges?
    The jury in Kozlowski’s second trial, the one in which he was convicted, had to believe beyond a reasonable doubt some things that I don’t find reasonable.
The jury had to believe beyond a reasonable doubt that Kozlowski stole money during the same time period that he declined an offer of significant additional compensation from the Board of Directors. The jury had to believe beyond a reasonable doubt that Kozlowski stole money instead of accepting a grant of 1,500,000 options for Tyco stock.
    When he was questioned during the second criminal trial, former Director Frank Walsh, who was also a former Chairman of the Compensation Committee, was asked if Dennis Kozlowski or Mark Swartz ever turned down offers of additional compensation, to which he responded, “[Y]es, they did.” 17
    Kozlowski turned down 1,500,000 stock options offered to him by the Board at the very time he was allegedly stealing money from the company. Mark Swartz turned down 750,000 options. At the suggestion of Towers Perrin, a consulting firm hired by the Compensation Committee, the Committee voted to grant large numbers of