In Tyco case, jurors' doubt may have been reasonable.

AMONG the dozen jurors, one refused to listen to reason. She ignored all evidence of guilt, all argument that might have budged her, according to the jury foreman.

When other jurors asked her to explain her view, she laughed, waved her hand and mumbled something inaudible. And when other jurors debated the case, she would try to hush them.

"One man had to be physically restrained after she told him that he interrupted, was loud and should simply 'shut up,'" according to the foreman's account.

The account of deliberations in the 2002 trial of former New York police officer Charles Schwarz by foreman Russell Birnbaum came to mind as New York state Supreme Court Justice Michael Obus ended the six-month trial of Tyco International Ltd. executives Mark Swartz and Dennis Kozlowski, accused of looting the company out of $600 million.

When the judge declared a mistrial in Tyco case, it was not because the jury was deadlocked or because a single holdout was obstinate. From all outward appearances, the jury seemed to be working its way through the 32-count indictment--despite reports of a single troublemaking juror, whose receipt of a threatening letter all but assured the mistrial.

The apparent transformation underscores this point: the juror who ignores the evidence is rarer than legend would have us believe.

"The real tragedy is the apparent contempt that people in the public at large seem to hold for this one juror," says Jacob Frenkel, a white-collar criminal defense lawyer at Smith, Gambrell and Russell and a former prosecutor.

Other than a somewhat ambiguous courtroom gesture that may have signaled a pro-defense attitude during deliberations, it's not the least bit clear she has done anything wrong. And even in cases where juries deadlock, it doesn't mean that a juror or two was acting irresponsibly.

Research indicates most hung juries result from reasonable doubt, not unreasonably obstinate jurors, says Paula Hannaford-Agor, principal court research consultant for the National Center for State Courts.

Weak evidence was "overwhelmingly" the chief cause of hung juries, says a 2002 study Hannaford-Agor led. Of course, holdout jurors could be expected to claim the evidence was weak even if they had some other agenda in vetoing a conviction.

But when cases went to trial for a second time, the results mirrored those of the fast trial "almost perfectly--a fact which belies the popular contention that these cases would have resulted in a conviction but for the unreasonable behavior of one or two holdout jurors," the study reports.

The study found evidence that deadlocked juries were more likely to question the fairness of the law or the system than juries that reach a verdict. This seems to support the idea that jurors sometimes "nullify" the law, or vote for acquittal in the face of evidence of guilt.

And, yet, the study found that in hung juries concerned about fairness, insufficient evidence also played a role. For example, jurors in a drug case in Syracuse complained to the judge that one member wasn't listening to reason, so U.S. District Judge Thomas McAvoy interviewed all the jurors.

He determined that the juror was insisting on acquittal because he "believes that these folks have a right to deal drugs, because they don't have any money." So McAvoy dismissed the accused troublemaker.

The 2nd U.S. Circuit Court of Appeals read the juror interviews differently. The holdout had also said he wanted "substantive evidence" to convict, and other jurors said he gave good reasons for his doubts. The appeals court set aside the convictions the 11-member jury had returned.

In white-collar crime, the toughest element to prove often is criminal intent. "In corporate fraud cases where oral admissions of criminal intent or smoking guns rarely if ever exist, as more and more of these cases go to trial, the difficulty of proving criminal intent comes to the fore," says Frenkel.

The Tyco jury seemed to be struggling with that. Soon after beginning deliberations, jurors asked the judge to again tell them the definition of criminal intent.

These aren't easy questions, and the six-month Tyco case wasn't simple.

It should take time to dispel reasonable doubt. And sometimes, it never happens.

Ann Woolner is a columnist with Bloomberg News.