Risk Management

Kozlowski, Swartz Seek End to Jail Terms

The ex-CEO and CFO of Tyco assert that there were cracks in the prosecution's case.
Stephen TaubSeptember 2, 2008

Dennis Kozlowski and Mark Swartz, the erstwhile chief executive officer and CFO, respectively, of Tyco International, are still trying to end their prison terms.

Arguing that they were wrongly convicted at a flawed trial, the imprisoned former executives of the conglomerate went before New York’s highest court on Tuesday seeking to overturn their convictions, according to the Associated Press.

In June 2005, Swartz and Kozlowski, were each found guilty of 22 counts of grand larceny, conspiracy, fraud, and falsifying business records and were sentenced to 8 1/3 to 25 years in prison. They have each served nearly three years of their prison terms, according to Reuters.

The two were found guilty of looting the company of $170 million in unauthorized compensation and $430 million through stock manipulation. The money included bonuses and forgiven loans, money for investments, expensive real estate, and personal luxuries. Both were ordered to repay the bonuses, and Kozlowski was fined $70 million and Swartz $35 million.

Lawyers for Kozlowski and Swartz, however, reportedly contended that the prosecution’s case was flawed. Reuters reported that John Martin, Kozlowski’s attorney, asserted that David Boies, a central prosecution witness, prejudiced the jury unfairly. In 2002, Boies had been hired by Tyco to conduct an internal investigation. Boies “should never have been allowed to testify about this investigation,” the lawyer reportedly contended.

Nathaniel Marmur, a lawyer for Swartz, said his client’s defense was hurt badly by the lower court’s decision not to permit a subpoena for notes of interviews with Tyco board members who later testified for the prosecution, according to Reuters. Marmur reportedly said that the directors had held a positive view of Swartz before his indictment.

Defense lawyers had argued that neither individual took money to which they were not entitled. Last November, a New York State appeals court unanimously upheld their convictions for conspiracy, grand larceny, securities fraud, and falsifying business records.

In an interview with FOX News shortly before that court ruling, Kozlowski conceded he earned an enormous sum of money, but continued to insist that he did not steal any. He also asserted, as both he and Schwartz did during their trial, that Tyco’s board had approved his compensation.

However, the appellate court cited testimony that all but one member of the compensation committee had no knowledge of the bonus payments.