Risk Management

Lawyers Seeks Answers to Symbol Mistrial

Two of three defense attorneys believe that their clients may already have been acquitted.
Stephen TaubFebruary 27, 2006

Attorneys for three former executives of Symbol Technologies Inc., whose case last week ended in a mistrial, are requesting that jurors return to court because they may in fact have found them not guilty, according to Newsday.

Chief financial officer Kenneth Jaeggi, senior vice president of finance Michael DeGennaro, and senior vice president and general manager Frank Borghese had been charged for their alleged roles in the bar-code company’s massive accounting fraud. After a six-week trial and four days of jury deliberations, Newsday reported, jurors sent a note saying: “We are at a deadlock. We have exhausted all options.”

Upon a motion reportedly initiated by Jaeggi’s attorney, Steven Molo, U.S. District Judge Leonard Wexler declared a mistrial. According to the newspaper, DeGennaro’s attorney, Michael Sommer, and Borghese’s attorney, Brad Simon, had wanted first to poll the jury to determine whether they had reached a verdict on any of the three defendants.

After speaking with 7 of the 12 jurors outside the courtroom, Sommer and Simon have moved that the jurors return to court so they can be asked whether they had acquitted two of the defendants, the newspaper reported. That would be the only way to prevent an “unimaginable injustice,” Sommer reportedly claimed in court papers.

Sommer also reportedly asserted that jurors had found DeGennaro and not guilty on all counts, and that they had acquitted Jaeggi of all charges except conspiracy to commit securities fraud.

In their court papers opposing the defense request, prosecutors — who initially had opposed the mistrial motion, the paper noted — asserted that “unreported deliberations [outside the courtroom] can have no legal significance.”

Northwestern University professor of law Ron Allen, an expert on jury deliberations, told the newspaper he could not recall a similar case. Added Allen, “It’s a mess.”

A further hearing before Wexler is scheduled for Monday. Any retrial — if that’s the route that must be taken — would not begin before summer because of the judge’s schedule, according to Newsday.