Taking Down the Lion: The Rise and Fall of Tyco's Dennis Kozlowski
after Kozlowski and Swartz entered prison, the Manhattan DA’s office continued its fight to keep the evidence from the Defendants, based on the argument that defense attorneys did not follow the correct procedures to preserve the Defendants’ rights. The DA’s office relied on procedural default. A technicality. The court, the defense attorneys, and even Assistant DA Amyjane Rettew, who for years approved and disapproved expenditures from Kozlowski’s frozen assets, all agreed that the content of the documents in question (the interview notes) was material and potentially exculpatory.
    In oral arguments before the district court, ADA Rettew didn’t argue that the requested evidence was irrelevant, or that the interview notes wouldn’t change the outcome of the trial, or that Kozlowski and Swartz were guilty and deserved to be in prison. She didn’t even argue that the documents were protected by privilege. Instead, her argument was that defense attorneys didn’t meet a technical standard when they argued about the subpoena before Justice Obus, and therefore the defendants forfeited their constitutional rights. 35
    Alan Lewis of Carter, Ledyard & Milburn appeared on behalf of Kozlowski. In opposing the court of appeals’ finding that the Defendants should have collected interviews of the Directors during the summer of 2002, Lewis stated, “So, in other words, what the court of appeals is . . . saying is that defendants in a criminal case lost their right to get evidence that is reasonably likely to contradict the statements of key witnesses for the People on the key issue of the case because they didn’t do something to investigate the charges against them before those charges existed. And in that fashion the court of appeals turned our criminal justice system upside down.” Lewis said, “In the history of our jurisprudence I don’t think there’s ever been a case in which any court has said a defendant loses his right to get something that’s really important to his defense because he didn’t defend the case before there was a case.” 36
    Nathaniel Marmur, who represented Swartz, reasoned with the court by sharing an analogous case. Marmur said:
    Your Honor may remember the Grasso case where Dick Grasso was accused, very similar in the civil context, of getting I think a hundred million or some crazy number in compensation for running the New York Stock Exchange. And the directors there, all very important people, all said essentially we didn’t approve this, we didn’t know about this. There was an internal investigation that encountered these comments. And unfortunately in the world we live in, sometimes civil discovery, for reasons I’ve never been able to understand, is broader than criminal discovery. And the underlying statements came out and of course what we saw the directors absolutely knew about and had endorsed it. But the pressures demanded that they say otherwise. And of course that was our theory at trial.”
    Marmur told the court that “ . . . [I]t is beyond my comprehension that it takes three levels of courts, including the New York Court of Appeals, for someone to say you actually can issue a subpoena for these documents.” 37
    Marmur got to the heart of the matter when he stated, “ . . . [W]e have out there documents that we firmly believe will show that Dennis Kozlowski and Mark Swartz did not steal money from Tyco, that these directors were on board the entire time. We would love the opportunity to present them to a jury.” 38
    On February 7, 2012, the U.S. District Court for the Southern District of New York denied the petitions for writs of habeas corpus. Almost exactly one year later,the U.S. Court of Appeals for the Second Circuit upheld the district court’s decision—denying the petitions for habeas because the trial attorneys of Kozlowski and Swartz failed to raise a constitutional issue regarding the ruling on the subpoena at the time of Justice Obus’s decision—the

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