The Biggest Show No One's Watching MISTRESSES ON THE STAND! CRIMINALS IN THE ELEVATOR! PILES AND PILES OF REALLY BORING DOCUMENTS! HERE'S WHAT THE TRIAL OF FORMER TYCO CEO DENNIS KOZLOWSKI--NOW AT ITS MIDPOINT--IS REALLY LIKE.
(FORTUNE Magazine) – SCENE: A New York State criminal courtroom on the 13th floor of 100 Centre Street, Manhattan. The gnarled hand of SHIRLEY SHEPARD, a courtroom artist with a jet-black leather pantsuit and a wild mane of white hair, is drawing furiously. Reaching into her 96-color set of pastels, she chooses beige for the witness on the stand, white for the court officer's uniform, brown for the jury box. Turning her attention to the main defendant, the perpetually crimson-faced DENNIS KOZLOWSKI, she selects an improbable shade of pink. ANDREA, her daughter and collaborator, sits nearby.
ANDREA: Normally you would use this for lipstick or for blush. You wouldn't use it for flesh--except on Dennis.
In late September, the curtain went up on the trial of former Tyco chief Dennis Kozlowski, the biggest CEO to stand criminal trial in America since ... well, maybe ever. We've seen moneymen like Michael Milken and lesser chieftains like Sam Waksal locked up. But not since sociologist Edwin Sutherland coined the term "white-collar crime" in the 1930s have prosecutors had a fish this big on the line. Just last year, Kozlowski was running an enterprise that employed 260,000 people and was worth more than Ford and General Motors combined. Now he and former Tyco CFO Mark Swartz are charged with looting $600 million in unauthorized bonuses and loans from the company--meaning that "The Next Jack Welch" (as a 1999 Barron's cover dubbed Kozlowski) faces up to 30 years in state prison. Broadway, Shmoadway. This, folks, is as big as it gets.
Given the stakes, the trial should be the hottest ticket on earth. But it isn't. On a recent morning, there were exactly 11 people in the gallery watching a cast of more than 40. Lacking the razzle-dazzle of Rosie O'Donnell's production down the street, or the rat-a-tat-tat of Frank Quattrone's two-week mistrial, The People v. Kozlowski and Swartz is on most days a long, epic slog. Two grueling months have passed already, with another two to go.
Yet it's the very day-to-dayness of the proceedings that make them so strangely compelling. There are the odd dynamics involving bit players like the Shepards, not to mention the surreal clash of extreme privilege and the gritty gears of criminal justice. (Where else, besides a Fellini movie, can you get stuck in an elevator with a Business Week cover boy and a crack dealer?) This is corporate America on trial, but it's also just another case in Courtroom 1324. You don't need a ticket or even an ID to get in. Open the door, and there it is--live, in progress.
SCENE: The courtroom at 100 Centre Street. DENNIS KOZLOWSKI is wearing a dark suit, looking loose and even jocular. MARK SWARTZ is smiling agreeably at someone in the gallery. A PROSECUTOR is questioning BARBARA JACQUES, a former Tyco event planner and, as has come out in testimony, KOZLOWSKI's former mistress.
PROSECUTOR: You couldn't say, "No, Mr. Kozlowski, I'm not going to plan your wife's birthday party in Sardinia?"
JACQUES: I suppose I could have. But I wouldn't have.
PROSECUTOR: Why not?
JACQUES: It was part of my job. I plan events.
PROSECUTOR (referring to a Tyco document): ... Why did you call it a "management meeting"?
JACQUES: I suppose I didn't know what to call it. I don't think I would put on a check request, "Karen's Birthday Bash."
PROSECUTOR: ... Did Mr. Kozlowski ask you to put in the annual report to shareholders that they spent over a million dollars on his wife's birthday party?
DEFENSE ATTORNEY: Objection!
The infamous birthday-party video airs. A break follows. Artist ANDREA SHEPARD walks outside the courtroom. The clock in the hallway is stuck at 11:10.
ANDREA: I start to see the naked beige people and Jimmy Buffett singing. Beige buns. So what else is going on? There are toga women. The wife is posing with a gladiator. I see the pool three times--blue--so I know that's important. And we had to get the Parthenon image in.
A seemingly unruffled KOZLOWSKI is talking on his cellphone a few yards away.
ANDREA: We couldn't get his head pink enough. So we added red and smudged it.
Ever since the world learned of his $6,000 wastebasket and $15,000 umbrella stand, "Kozlowski" has become shorthand for outrageous excess--an image the defense attorneys aren't doing much to debunk. Their argument boils down to: "Yes, they took the hundreds of millions--but the board let them do it." While this might be a perfectly sensible legal strategy, it effectively turns both sides into prosecutors: One side out to nab the executives, the other out to expose the failings of the board. It's almost as if both sides had gotten together and decided to put the entire corporate system on trial.
SCENE: JOHN FORT, onetime Tyco CEO and longtime board member, is on the witness stand. DEFENSE ATTORNEY is asking him about the expression "money is fungible."
DEFENSE ATTORNEY: "Fungible" is sort of an odd word. Can you explain to the ladies and gentlemen of the jury what "fungible" means?
FORT (laughing uncomfortably): Maybe. I'm not very eloquent. But it means that money is money and not necessarily attached to ... uh ...
He mumbles something inaudible, fidgets with his hands, and finally comes to a full stop.
FORT: I guess I can't.
Nor can he explain his written request to Tyco's board for a $144,000 loan for himself. It's dated March 6, 1984. Another document, which shows him taking a $144,000 loan, is dated Feb. 1, 1984.
DEFENSE ATTORNEY: Isn't it correct, Mr. Ford--Mr. Fort--that you took the loan before asking [the board to approve it]?
FORT (looking befuddled): I can't explain this, and I don't recall it. I don't recall when I received the money--actually received the funds. But it appears that there's a difference in the dates here, yes.
It's hard to discern the jurors' reactions--they have no speaking roles, or at least not until the final day. But as the ones who write the play's ending, they are the most powerful people in the room. There's the charismatic black man with cornrows in his hair, the elderly white man with the '40s-style suit and Stetson hat. In short, the contents of your average New York City subway car, only with more group bonding. Crammed into one of the building's ancient elevators at day's end, they shout raucously for the last remaining juror to get in. Only one member--one of four whites on the panel--seems aloof from the fun. Is he the potential holdout?
SCENE: Break time at 100 Centre Street. JACK MACDOUGAL, a retired MetLife employee, lingers in the back of the gallery.
MACDOUGAL: I was thinking about "a jury of your peers." I don't see a single juror that looks like a peer [of Kozlowski's].
REPORTER: What brings you here?
MACDOUGAL: It's entertainment. My wife goes to the museums, and I come here. There's six or eight people like myself. In one case the judge gave us headphones so we could hear what the jury was hearing. Wiretap conversations. It's 99% boredom, but that 1% is worth it all.
In the fifth century B.C., Athenians headed to the courts when there was no Euripides or Sophocles playing. Today the appeal of 100 Centre Street (as opposed to 100 Centre St., the title of a short-lived series on A&E) is how the drama spills off the stage and around it, where the players rub shoulders with observers keenly speculating on their fate.
SCENE: Cross-examination of BARBARA JACQUES. Two 20-year-old women, students at Manhattanville College, are among the observers.
DEFENSE ATTORNEY: He [Kozlowski] could invite any employee he wanted to any company event and the company would pick up the tab, correct?
DEFENSE ATTORNEY: ... One of the principles of networking is to get [people] out of the office and take them to a resort ... because that theoretically facilitates the networking? Isn't that true?
Cut to hallway a few minutes later. The clock reads 11:10.
STUDENT ONE: Hilarious. People walking around in next to nothing--how does that constitute networking?
STUDENT TWO: I never really realized how rich people are. You see it on TV, but when I heard this, it was like a novel--like I was reading a novel.
STUDENT ONE: In terms of image--this is horrible to say--but you look at Kozlowski and you look at his face and you say, "This guy has money and he could have done this." Swartz looks like a goofball who just went along for the ride.
STUDENT TWO (nodding): He's the guy in the next cubicle. It doesn't look like he would know what to do.
A GOOD PROSECUTOR, A LAWYER IN the audience noted, should keep the jury focused on three words from the opening statement: "lying, cheating, and stealing." Yet as this prosecutor grills Patri-cia Prue, a former liaison between the defendants and the Tyco board's compensation committee, for the third day in a row, he's in danger of losing the storyline amidst two shopping carts' full of documentation.
SCENE: PROSECUTOR pulls up a new document: "Compensation Committee Meeting. October 21, 1998."
PROSECUTOR: What's this?
PRUE: It's a compensation committee meeting.
PROSECUTOR: For what date?
PRUE: For Oct. 21, 1998.
The JURORS' pens fall dead in their hands. Someone in the gallery appears to be asleep.
The defense is more adept at holding the jury's attention. But its strategy of blaming the board--whose key player, former compensation committee chairman Phil Hampton, is conveniently dead--carries risks of its own. In painting an incestuous relationship between executives and the people who theoretically represent shareholders, could the defense simply heighten the jury's level of disgust? At times, Team Kozlowski inadvertently reminds the jury just how many zeros are involved.
SCENE: Cross-examination of Tyco accountant SHEILA REX. The defense lawyer mentions a sum he describes as "the total amount of deferred compensation that Mr. Kozlowski left behind" at Tyco.
DEFENSE ATTORNEY: I'll ask you to help me do some math, if I could, Ms. Rex. I'll hand you a calculator.
BAILIFF carries calculator to REX.
DEFENSE ATTORNEY: Now, taking the figure of $85 million, can you use the calculator and subtract that from the balance of Mr. Kozlowski's [Key Employee Loan] account as of the time he left Tyco?
Silence as REX punches in numbers.
DEFENSE ATTORNEY asks something inaudible.
REX: No, the calculator won't go that far. Can I round it to thousands?
The courtroom erupts in laughter.
DEFENSE ATTORNEY (fumbling): Try this calculator.
BAILIFF carries second calculator to REX.
REX: This is not my normal calculator.
DEFENSE ATTORNEY: $66,560,985. That is the difference between the total of the amounts indicated on Exhibits 112A through D ... Is that correct?
JUDGE (exasperated): If you want her to subtract 85 million from 18 million, you get a negative 66 million. That is the calculation!
There's nothing like a new love interest to get things moving again. And Mary Murphy, a former executive assistant to Kozlowski who could be played by Meg Ryan, delivers.
SCENE: Morning. A scrum of LAWYERS speak in hushed tones near the JUDGE's bench. The COURT STENOGRAPHER sits within earshot.
DEFENSE ATTORNEY: The only reason to bring this out is to sully this man, to be tried for his character ... We object ...
JUDGE: Let me ask ... what the relevance would be.
PROSECUTOR ONE: There probably could be no more favored employee than a girlfriend of the chief executive of Tyco. She received an extremely generous severance package when she was going to leave the company.
PROSECUTOR TWO: A severance package of, I believe, four years' salary, plus loan forgiveness on--how many residences?
PROSECUTOR ONE: One residence, plus the continued use of a New York apartment.... It shows Mr. Kozlowski's deluding of the company, his total disregard for the shareholders of the corporation.
DEFENSE ATTORNEY: ... The bottom line is that he had the right, under the bylaws of this company and under the way it was run, to pay these people whatever he wanted to pay them.
The JUDGE rules for the prosecution. Recesses ensue. Back in the courtroom, SHIRLEY and ANDREA SHEPARD are sitting in the second row, with KAREN KOZLOWSKI just across the aisle. MARY MURPHY takes the stand.
PROSECUTOR: Tyco at that particular time was a very, very busy place. Is that correct?
PROSECUTOR: Many, many acquisitions were being conducted by Tyco at this time?
PROSECUTOR: And you ended up working long hours, is that true?
The SHEPARDS each pull out a pair of binoculars to get a better look at MURPHY. ANDREA puts together a composite drawing of MURPHY, KOZLOWSKI, and KAREN KOZLOWSKI. KAREN occasionally glances at their work.
PROSECUTOR: Was the reason you left Tyco because of the long hours?
MURPHY (bites lip, looks down): Umm, no.
PROSECUTOR: What was the reason you left Tyco?
MURPHY: I had a relationship with Dennis and I ended the relationship and I didn't want to work there anymore.
KAREN KOZLOWSKI has no visible reaction. The Shepards pack up their easels and pull a wheeled cart out the back door.
KAREN (whispering to SHIRLEY SHEPARD as they leave): Bye-bye. Thanks.
So this is what it's like when corporate America is on trial. The prosecution is wallowing in paper. The defense is doing math problems. The Shepards are running low on pink. The clock, inexplicably, now reads 11:05.
Clearly this play is far from over. Additional scenes--which will likely feature testimony from key board members--are projected to run well into January. After that comes a sequel in which Kozlowski is tried for evading New York State income taxes on $13.2 million worth of paintings he bought. For now he'll continue to exist in that strange twilight between inmate and VIP: under state control during court hours, free to yuk it up on his cellphone and stroll downtown in between.
But nobody stays at 100 Centre Street forever. It's a way station--either to some place better or to some place much, much worse. At this point it would be foolish to speculate which it will be. Yet when this curtain falls, it will be louder than any gavel. If Kozlowski walks, corporate America will skim the headline and wonder what's for lunch. If he doesn't--well, that would be something. No executive will forget the day they put The Next Jack Welch behind bars.