Henning [Wayne State]: Defense Opening in Trial of Former Tyco Execs

Peter Henning, Wayne State University Law School:

"Discussed in the Wed. Jan.26th post is the prosecution opening in the case of Tyco executives Dennis Kozlowski and Mark Swartz. Yesterday, the defense responded and it sounds like mens rea, and whether the defendants had the appropriate intent, will be prominent in this case. This is not unusual in a white collar case. As reported in the New York Times, "Mr. Stillman [ ] told the jury that Mr. Swartz 'had no criminal intent because his intentions were honest. No criminal intent means no crime.'" On the law.com website, is included the following line from the opening of Stephen Kaufman, attorney for Dennis Kozlowsk, who stated, "You tell me how you steal when you sign a promissory note and repay it."

According to law.com :

"Charles Stillman, the lawyer for Swartz, presented the same chart that Assistant Manhattan District Attorney Owen Heimer had used in his opening to detail the major payments in controversy. The prosecutor's chart had been labeled "thefts." Stillman's version had the word "alleged" added to it."
There is nothing better then being able to take another attorney's demonstrative piece of evidence and use it to your advantage.  The ability to turn around opposing counsel's presentation by using their language or their exhibits can be dangerous (e.g., asking the witness to try out the glove to see if it fits in the OJ Simpson case).  But the risk is somewhat minimized when you are not dealing with concrete factual evidence and merely the opposing sides "take" on what happened. We'll see if this was a good move here, when the prosecution responds come their closing argument. 

There does, however, appear to be differences in the approach taken from the prior trial. The NYTImes reports:
"But lawyers for both defendants, who had appeared to soft-pedal the issue of directors' credibility in the first trial, said that accusations by board members that the two men stole more than $150 million - the basis of the prosecution's case - were part of a self-serving strategy to protect themselves from shareholder lawsuits."

The evidence begins on Monday." [January 28, 2005: White Collar Crime Blog has the post.]

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