Taking Down the Lion: The Rise and Fall of Tyco's Dennis Kozlowski by Catherine S. Neal Page B
Authors: Catherine S. Neal
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attorneys did not use the word “constitutional” when they objected to the ruling. 39 In October of 2013, the U.S. Supreme Court denied Kozlowski and Swartz a review by the highest court in the country; their appeals were finally exhausted.
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The habeas decisions were counter to the basic ideology of our criminal justice system—that individuals accused of crimes should have access to exculpatory evidence if it exists. There are many good reasons for the procedural rules used in our court systems, but should a procedural technicality be the basis for keeping innocent men in prison? Why would prosecutors want to deprive individuals of evidence that might prove their innocence? Why wouldn’t Tyco willingly turn over the notes taken during interviews with Directors? Why the secrecy? Surely individuals in the DA’s office and at Tyco would not watch two men condemned to prison for many years if they knew there was evidence to prove they did not commit the crimes for which they were convicted. So why not just turn over the interview notes?
This case highlights the questionable process through which a private practice attorney performing a corporate internal investigation can filter select evidence to a prosecutor and thereby initiate criminal proceedings against corporate insiders. The process allows prosecutors to skirt evidentiary requirements. A prosecutor is required to provide to defendants evidence that is in the prosecutor’s possession. If a private practice attorney performing a corporate internal investigation withholds exculpatory evidence from prosecutors while supplying evidence that tends to incriminate, the prosecutor can honestly argue that he or she is not in possession of the exculpatory evidence and therefore not in violation of rules of evidence. And the private practice attorney can be called as a witness for the prosecution, testify about evidence that was allegedly found during the internal investigation, and yet shield any evidence that the company, the prosecutor, or the attorney does not want to disclose. It is a very dangerous loophole.
The Manhattan DA did not have possession of the evidence subpoenaed by Kozlowski and Swartz. Although Tyco supplied voluminous evidence to the DA, the company did not turn over everything. The documents withheld, which likely contained evidence that could exonerate Kozlowski and Swartz, could not be obtained by subpoena, through two levels of appeal in the New York State court system, or in the U.S. District Court, the U.S. Court of Appeals, or the U.S. Supreme Court. The evidence exists, but Kozlowski and Swartz were not permitted to use it to defend themselves.
* * *
U.S. Supreme Court Justice Hugo Black said, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” 40 Similarly, U.S. Supreme Court Justice Lewis Powell said, “Equal justice under law is not merely a caption on the facade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists . . . it is fundamental that justice should be the same, in substance and availability, without regard to economic status.” 41 When these esteemed jurists opined about the importance of fair treatment by our legal system for every individual, without regard for economic status, do you think they meant Dennis Kozlowski?
Since the creation of our legal system, there has been an ongoing discussion about the fundamental right of every individual to a fair trial without regard for his or her financial status. Of course, the discussions always happen in the context of ensuring that those of lesser economic means are protected. It’s difficult to muster concern for the fate of the wealthy. With money comes the ability to hire the most capable, well-educated attorneys. Financial resources often allow an individual to gain the upper hand in our justice system, with the
* * *
The habeas decisions were counter to the basic ideology of our criminal justice system—that individuals accused of crimes should have access to exculpatory evidence if it exists. There are many good reasons for the procedural rules used in our court systems, but should a procedural technicality be the basis for keeping innocent men in prison? Why would prosecutors want to deprive individuals of evidence that might prove their innocence? Why wouldn’t Tyco willingly turn over the notes taken during interviews with Directors? Why the secrecy? Surely individuals in the DA’s office and at Tyco would not watch two men condemned to prison for many years if they knew there was evidence to prove they did not commit the crimes for which they were convicted. So why not just turn over the interview notes?
This case highlights the questionable process through which a private practice attorney performing a corporate internal investigation can filter select evidence to a prosecutor and thereby initiate criminal proceedings against corporate insiders. The process allows prosecutors to skirt evidentiary requirements. A prosecutor is required to provide to defendants evidence that is in the prosecutor’s possession. If a private practice attorney performing a corporate internal investigation withholds exculpatory evidence from prosecutors while supplying evidence that tends to incriminate, the prosecutor can honestly argue that he or she is not in possession of the exculpatory evidence and therefore not in violation of rules of evidence. And the private practice attorney can be called as a witness for the prosecution, testify about evidence that was allegedly found during the internal investigation, and yet shield any evidence that the company, the prosecutor, or the attorney does not want to disclose. It is a very dangerous loophole.
The Manhattan DA did not have possession of the evidence subpoenaed by Kozlowski and Swartz. Although Tyco supplied voluminous evidence to the DA, the company did not turn over everything. The documents withheld, which likely contained evidence that could exonerate Kozlowski and Swartz, could not be obtained by subpoena, through two levels of appeal in the New York State court system, or in the U.S. District Court, the U.S. Court of Appeals, or the U.S. Supreme Court. The evidence exists, but Kozlowski and Swartz were not permitted to use it to defend themselves.
* * *
U.S. Supreme Court Justice Hugo Black said, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” 40 Similarly, U.S. Supreme Court Justice Lewis Powell said, “Equal justice under law is not merely a caption on the facade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists . . . it is fundamental that justice should be the same, in substance and availability, without regard to economic status.” 41 When these esteemed jurists opined about the importance of fair treatment by our legal system for every individual, without regard for economic status, do you think they meant Dennis Kozlowski?
Since the creation of our legal system, there has been an ongoing discussion about the fundamental right of every individual to a fair trial without regard for his or her financial status. Of course, the discussions always happen in the context of ensuring that those of lesser economic means are protected. It’s difficult to muster concern for the fate of the wealthy. With money comes the ability to hire the most capable, well-educated attorneys. Financial resources often allow an individual to gain the upper hand in our justice system, with the
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